Untitled document
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Fair Trading Act 1999
3Definitions
4New Part 2C inserted
Part 2C—Frustrated Contracts
Division 1—Introductory
32ZEDefinitions
32ZFContracts to which this Part applies
Division 2—Consequences of frustration of contract
32ZGAdjustment of amounts paid or payable to parties to discharged contracts
32ZHCourt may allow amounts paid or payable to be recovered or paid
32ZIParties to pay an amount for valuable benefits obtained
32ZJCalculation of expenses incurred
32ZKCircumstances in which amounts payable under contract of insurance excluded
Division 3—General
32ZLCircumstances in which contract provisions continue to have effect despite frustration
32ZMPerformed part of contract not frustrated
32ZNNature of action
32ZOLimitation period
5Functions and powers of the Director
6New section 152A inserted
152APowers of court if requirement of Director or inspector not complied with
7Defences
8Consumer documents to be clear
9New section 163A inserted
163AComplaints etc. are privileged
10New clause 12 inserted in Schedule 3
12Continuation of existing hire-purchase agreements
11New clause 13 inserted in Schedule 3
13Transitional—references to the Frustrated Contracts Act 1959
Part 3—Owners Corporations Act 2006
12Powers of owners corporations
13Audit of accounts
14Insurance for lots in multi-level dwellings
15New section 79 substituted
79Who chairs the general meeting?
16Proxies
17Secretary of committee
18Owners corporation certificate
19Application for registration
20Proposed Part 5 of the Subdivision Act 1988
21Functions of Business Licensing Authority
22Consequential amendment
Part 4—Partnership Act 1958
23Who may apply for registration?
24How an application is made?
25Winding up on Director's certificate
26Lodgment of certain documents with the Director
Part 5—Shop Trading Reform Act 1996
27Definitions
28Special local shop closing times
29Restraining orders
30Regulations
31Schedule 2
Part 6—Subdivision Act 1988
32New section 42A of the Subdivision Act 1988 inserted
42ARegistrar may approve forms
33Regulations
Part 7—Trade Measurement Act 1995
34Definitions
35Measuring instruments used for trade must be marked
36Use of class 4 measuring instruments
37Use of measuring instruments for pre-packed articles
38Unjust measurement
39Supplying incorrect measuring instrument
40Section 23 substituted
23Incorrect measurement or price calculation
41New section 25A inserted
25ASpecial provision for sale of firewood by volume
42Application for licence
43Grounds for refusal
44Conditions on all public weighbridge licences
45New sections 52A and 52B inserted
52AContinuation of weighbridge suitability statement in particular circumstances
52BIf weighbridge no longer suitable for use as a public weighbridge
46Surrender of licence
47New sections 54A, 54B, 54C and 54D inserted
54AEffect of relocation of licensed weighbridge
54BApplication to change licence holders due to change of partnership
54CEffect on licence of application under section 54B
54DApplication to amend condition of licence
48Grounds for disciplinary action
49Rights of appeal
50Regulations
51New Part 9 inserted
Part 9—TRANSITIONAL PROVISIONS
82Certificates of suitability
83Existing licensed public weighbridges
Part 8—Trade Measurement (Administration) Act 1995
52Other fees and charges may be prescribed
Part 9—Amendments and Repeals
Division 1—Repeals
53Repeal of Frustrated Contracts Act 1959
54Repeal of Hire-Purchase Act 1959
Division 2—Consequential and other amendments
55Chattel Securities Act 1987
56Credit Act 1984
57Local Government Act 1989
58Public Transport Competition Act 1995
59Road Safety Act 1986
60Amendments to Consumer Acts
Division 3—Repeal of Amending Act
61Repeal of amending Act
__________________
SCHEDULE—Amendments to Consumer Acts
1Associations Incorporation Act 1981
2Business Names Act 1962
3Domestic Building Contracts Act 1995
4Estate Agents Act 1980
70WAPowers of court if requirement to produce information not complied with
5Fundraising Appeals Act 1998
6Introduction Agents Act 1997
7Motor Car Traders Act 1986
82ATAPowers of court if requirement to produce information not complied with
8Petroleum Products (Terminal Gate Pricing) Act 2000
9Prostitution Control Act 1994
61WAPowers of court if requirement to produce information not complied with
10Residential Tenancies Act 1997
11Retirement Villages Act 1986
12Sale of Land Act 1962
13Second-Hand Dealers and Pawnbrokers Act 1989
26WAPowers of court if requirement to produce information not complied with
14Travel Agents Act 1986
39VAPowers of court if requirement to produce information not complied with
15Utility Meters (Metrological Controls) Act 2002
═══════════════
Endnotes
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
[Assented to 11 February 2008]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to amend the Fair Trading Act 1999—
(i)to re-enact in it the provisions of the Frustrated Contracts Act 1959;
(ii)to include provisions consequent on the repeal of the Hire-Purchase Act 1959;
(iii)to expand the powers of the Director to bring proceedings;
(iv)to provide for certain matters to be privileged;
(v)to provide power to seek a court order to enforce compliance with certain requirements of the Director or an inspector;
(vi)to improve generally the operation of that Act;
(b)to amend various Consumer Acts to provide power to seek a court order to enforce compliance with certain requirements of the Director or an inspector;
(c)to amend the Owners Corporations Act 2006 to improve the operation of that Act;
(d)to amend the Partnership Act 1958 to enable Early Stage Venture Capital Limited Partnerships to be registered and recognised in Victoria;
(e)to amend the Shop Trading Reform Act 1996 to repeal provisions relating to special local shop closing times that regulate Sunday trading;
(f)to amend the Subdivision Act 1988 to improve the operation of that Act;
(g)to amend the Trade Measurement Act 1995 and the Trade Measurement (Administration) Act 1995 to reflect changes to the national model legislation;
(h)to repeal—
(i)the Frustrated Contracts Act 1959; and
(ii)the Hire-Purchase Act 1959.
2Commencement
(1)This Act (except sections 3, 4, 10, 11, 53 to 56, 58 and 59 and Parts 7 and 8) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Parts 7 and 8 come into operation on 1 July 2008.
(3)Subject to subsection (4), sections 3, 4, 10, 11, 53 to 56, 58 and 59 come into operation on a day or days to be proclaimed.
(4)If a provision referred to in subsection (3) does not come into operation before 1 December 2008, it comes into operation on that day.
__________________
Part 2—Fair Trading Act 1999
3Definitions
In section 3 of the Fair Trading Act 1999 for the definition of hire-purchase agreement substitute—
"hire-purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether that agreement describes the instalments as rent or hire or otherwise) but does not include any agreement—
(a)by which the property in the goods in the agreement passes at the time of the agreement or on or at any time before delivery of the goods; or
(b)under which the person by whom the goods are being hired or purchased is a person who is engaged in the trade or business of selling goods of the same nature or description as the goods comprised in the agreement; or
(c)that is a regulated contract within the meaning of the Credit Act 1984; or
(d)that is a credit contract within the meaning of the Consumer Credit (Victoria) Code;".
4New Part 2C inserted
After Part 2B of the Fair Trading Act 1999 insert—
"Part 2C—Frustrated Contracts
Division 1—Introductory
32ZEDefinitions
In this Part—
court, in relation to any matter, means the court or arbitrator by or before whom the matter falls to be determined;
discharged contract means a contract to which this Part applies;
time of discharge, in relation to any contract, means the time at which—
(a)performance of the contract becomes impossible; or
(b)the contract is otherwise frustrated; or
(c)the contract is avoided by the operation of section 12 of the Goods Act 1958.
32ZFContracts to which this Part applies
(1)This Part applies to a contract if the parties to the contract are discharged from the further performance of the contract because—
(a)performance of the contract becomes impossible; or
(b)the contract is otherwise frustrated; or
(c)the contract is avoided by the operation of section 12 of the Goods Act 1958.
(2)This Part applies to contracts made before or after the commencement of section 4 of the Fair Trading and Consumer Acts Further Amendment Act 2008 if the time of discharge of the contract is after 29 September 1959.
(3)This Part does not apply to—
(a)any charter-party, except a time charter-party or a charter-party by way of demise; or
(b)any contract (other than a charter-party) for the carriage of goods by sea; or
(c)any contract of insurance except as provided for in section 32ZK.
Division 2—Consequences of frustration of contract
32ZGAdjustment of amounts paid or payable to parties to discharged contracts
(1)All amounts paid to any party under a discharged contract before the time of discharge are recoverable.
(2)All amounts payable to any party under a discharged contract before the time of discharge cease to be payable.
32ZHCourt may allow amounts paid or payable to be recovered or paid
Despite section 32ZG, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow a party to a discharged contract—
(a)to whom amounts were paid or are payable under that contract before the time of discharge; and
(b)who has incurred expenses before the time of discharge in or for the purpose of the performance of that contract—
to retain or recover (as the case may be) the whole or any part of the amounts paid or payable to that party under the contract in an amount not exceeding the expenses incurred.
32ZIParties to pay an amount for valuable benefits obtained
(1)This section applies if a party to a discharged contract obtained a valuable benefit (other than a payment of money to which section 32ZG or 32ZH applies) before the time of discharge because of anything done by another party in or for the purpose of the performance of the contract.
(2)Despite section 32ZG, the benefited party is liable to pay to that other party any amount (not exceeding the value of the benefit obtained) that the court considers just having regard to all the circumstances of the case.
(3)For the purpose of subsection (2), the Court may have regard in particular to—
(a)the amount of any expenses the benefited party incurred before the time of discharge in or for the purpose of the performance of the contract, including any amount paid or payable by the benefited party to any other party under the contract and retained or recoverable by that party under section 32ZG or 32ZH; or
(b)the effect, in relation to the benefit obtained, of the circumstances giving rise to the frustration or avoidance of the contract.
(4)For the purpose of this section, if a party to the contract has assumed obligations under the contract in consideration of the conferral of a benefit by another party to the contract on any other person (whether or not that person is a party to the contract), the court may, if in all the circumstances of the case it considers it just to do so, treat any benefit conferred on that other person as a benefit obtained by the party who has assumed those obligations.
32ZJCalculation of expenses incurred
In estimating, for the purposes of this Division, the amount of any expenses incurred by any party to a discharged contract, the court may include an amount that appears reasonable for—
(a)overhead expenses; and
(b)work or services performed personally by the party.
32ZKCircumstances in which amounts payable under contract of insurance excluded
In considering whether any amount is to be retained or recovered by any party to a discharged contract, the court must not take into account any amounts payable to a party under a contract of insurance because of the circumstances giving rise to the frustration or avoidance of the contract unless an obligation to insure is imposed—
(a)by an express provision in the frustrated or avoided contract; or
(b)by or under any enactment.
Division 3—General
32ZLCircumstances in which contract provisions continue to have effect despite frustration
If any contract to which this Part applies contains a provision that on the true construction of the contract—
(a)is intended to continue to have effect in circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract; or
(b)is intended to have effect whether or not circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract arise—
the court must give effect to that provision and must only give effect to Division 2 to the extent that the court is satisfied that it is consistent with the provision of the contract.
32ZMPerformed part of contract not frustrated
If it appears to the court that part of a contract to which this Part applies—
(a)is wholly performed before the time of discharge; or
(b)is wholly performed before the time of discharge except for payment in respect of that part of the contract of amounts that are or can be ascertained under the contract—
the court must treat that part of the contract as if it were a separate contract that had not been frustrated or avoided and Division 2 will only apply to the remainder of that contract.
32ZNNature of action
All actions and proceedings to recover amounts under this Part are taken to be founded on simple contract.
32ZOLimitation period
Subject to Part II of the Limitation of Actions Act 1958, a cause of action under this Part is taken to have first accrued at the time of discharge.
__________________".
5Functions and powers of the Director
In section 100(1)(e) of the Fair Trading Act 1999 for "in accordance with this Act or with a Consumer Act" substitute "to achieve the purposes of this Act or the purposes of a Consumer Act".
6New section 152A inserted
After section 152 of the Fair Trading Act 1999 insert—
"152A Powers of court if requirement of Director or inspector not complied with
(1)Subject to subsection (3), if the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 106HA, 106I or 118, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 118 or 131, the inspector may certify that failure to a court.
(3)The Director or an inspector cannot certify a failure to a court under subsection (1) or (2) if the person to whom the failure relates has been charged with an offence against section 106HA(2), 106I(3) or 132 (as applicable).
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence under section 106HA(2), 106I(3) or 132 (as applicable) in respect of that failure.".
7Defences
In section 155(5) of the Fair Trading Act 1999 for "section 32ZA" substitute "section 32ZB(5)".
8Consumer documents to be clear
(1)In section 163(3)(b) of the Fair Trading Act 1999 for "10 point font" substitute "10 point Times New Roman font, or a minimum font of an equivalent size".
(2)In section 163(4) of the Fair Trading Act 1999 for—
(a)"contract" substitute "document";
(b)"contracts" substitute "documents".
9New section 163A inserted
After section 163 of the Fair Trading Act 1999 insert the following—
"163A Complaints etc. are privileged
If a person in good faith—
(a)makes a complaint to the Director under section 103; or
(b)produces or gives a document or any information or evidence to the Director, an inspector or the Tribunal in relation to a matter that constitutes or may constitute a contravention of this Act or another Consumer Act—
the person is not liable in any way for any loss, damage or injury suffered by another person by reason only of the making of that complaint or the production or giving of that document, information or evidence.".
10New clause 12 inserted in Schedule 3
After clause 11 of Schedule 3 to the Fair Trading Act 1999 insert—
"12 Continuation of existing hire-purchase agreements
(1)Despite the repeal of the Hire-Purchase Act 1959, that Act continues to apply to any hire-purchase agreement and any agreement made in connection with a hire-purchase agreement entered into and in operation immediately before 1 April 1998 and existing before the commencement day.
(2)Despite the repeal of the Hire-Purchase Act 1959, sections 1(4B), 1(4C) and 1(6) of that Act continue to apply in respect of agreements to which they applied immediately before the commencement day as if that Act had not been repealed.
(3)In this clause commencement day means the date of commencement of section 54 of the Fair Trading and Consumer Acts Further Amendment Act 2008.".
11New clause 13 inserted in Schedule 3
At the end of Schedule 3 to the Fair Trading Act 1999 insert—
"13 Transitional—references to the Frustrated Contracts Act 1959
On and from the commencement of section 53 of the Fair Trading and Consumer Acts Further Amendment Act 2008, in any Act (other than this Act) or in any instrument made under any Act or in any other document of any kind a reference to the Frustrated Contracts Act 1959 is deemed to be a reference to Part 2C so far as it relates to any period after that commencement, unless the context otherwise requires.".
__________________
Part 3—Owners Corporations Act 2006
12Powers of owners corporations
(1)In section 3 of the Owners Corporations Act 2006 insert the following definition—
"ordinary resolution means a resolution other than a special resolution or a unanimous resolution;".
(2)In sections 25(1), 43 and 52(a)(i) of the Owners Corporations Act 2006 omit "at a general meeting".
(3)In section 62 of the Owners Corporations Act 2006 for "At a general meeting, the owners corporation" substitute "An owners corporation".
13Audit of accounts
In sections 35(1)(c) and 35(2)(c) of the Owners Corporations Act 2006, after "CPA Australia" insert ", the National Institute of Accountants".
14Insurance for lots in multi-level dwellings
For section 61(2) of the Owners Corporations Act 2006 substitute—
"(2)Subsection (1) does not apply to—
(a)a single-storey building; or
(b)a plan of subdivision that was registered under the Cluster Titles Act 1974 or the Strata Titles Act 1967 unless one or more lots in the plan is located above another lot in the plan.".
15New section 79 substituted
For section 79 of the Owners Corporations Act 2006 substitute—
"79 Who chairs the general meeting?
(1)The lot owners present at a general meeting may elect one of their number or the manager of the owners corporation to chair the meeting.
(2)If the chairperson of the owners corporation is present at a general meeting and an election under subsection (1) has not been made, the chairperson chairs the meeting.".
16Proxies
In section 87(3) of the Owners Corporations Act 2006 for "subregulation (1)" substitute "subsection (1)".
17Secretary of committee
In section 107 of the Owners Corporations Act 2006 after "committee" (where secondly occurring) insert "or the manager of the owners corporation".
18Owners corporation certificate
In section 151(2) of the Owners Corporations Act 2006 after "by" insert "the fee determined by the owners corporation, which must not exceed".
19Application for registration
In section 180(2)(a) of the Owners Corporations Act 2006 omit "and must be verified by statutory declaration".
20Proposed Part 5 of the Subdivision Act 1988
(1)In section 211 of the Owners Corporations Act 2006, in proposed section 27E(1) of the Subdivision Act 1988, after "accompanied by" insert "a document specifying".
(2)In section 211 of the Owners Corporations Act 2006, in proposed section 27H of the Subdivision Act 1988, for "The Registrar" substitute—
"(1)The Registrar".
(3)In section 211 of the Owners Corporations Act 2006, at the end of proposed section 27H of the Subdivision Act 1988, insert—
"(2)Without limiting subsection (1), if there is a special resolution of the members, an owners corporation may apply to the Registrar to alter the purposes of the owners corporation.
(3)Without limiting subsection (1), if there is a special resolution of the members of an unlimited owners corporation and a special resolution of the members of a limited owners corporation, the owners corporations may apply to the Registrar to alter the functions or obligations of the limited owners corporation that are to be carried out or complied with by the unlimited owners corporation.
Note
See section 27C.
(4)On the Registrar altering the purposes of the owners corporation, the altered purposes become the purposes of the owners corporation.
(5)On the Registrar altering the functions or obligations of the limited owners corporation that are to be carried out or complied with by the unlimited owners corporation, section 27C(5) applies as if the alteration were the registration of the plan and that subsection referred to the functions or obligations as so altered.".
(4)In section 211 of the Owners Corporations Act 2006, in proposed section 32AI(1)(c) of the Subdivision Act 1988, for "the registered plan" substitute "the lot or lots to be consolidated, subdivided or altered".
21Functions of Business Licensing Authority
At the end of section 220 of the Owners Corporations Act 2006 insert—
'(2)After section 6(a)(iv) of the Business Licensing Act 1998 insert—
"(iva)the Owners Corporations Act 2006;".'.
22Consequential amendment
(1)In Schedule 3 to the Owners Corporations Act 2006, for item 10.2(b) substitute—
'(b)in subsection (2) for "body corporate" (wherever occurring) substitute "owners corporation";'.
(2)In Schedule 3 to the Owners Corporations Act 2006, after item 10.2 insert—
'10.3After section 98CA(2)(c) insert—
"(ca)be accompanied by the relevant owners corporation documents; and".
10.4After section 98CA(2) insert—
"(3)In this section and section 98CB owners corporation documents means the documents required under Part 5 of the Subdivision Act 1988 to accompany a plan of subdivision.".
10.5In section 98CB—
(a)in subsection (2) for "and the plan of subdivision" substitute ", the plan of subdivision and the owners corporation documents";
(b)in subsection (4) after "plan of subdivision" insert "and owners corporation documents".'.
__________________
Part 4—Partnership Act 1958
23Who may apply for registration?
After section 87(2)(a)(ii) of the Partnership Act 1958 insert—
"(iii)an ESVCLP within the meaning of that Act; or".
24How an application is made?
In section 88(2)(h) of the Partnership Act 1958 for "or an AFOF" (wherever occurring) substitute ", an AFOF or an ESVCLP".
25Winding up on Director's certificate
In section 108(1)(b)(i) of the Partnership Act 1958 for "or an AFOF" substitute ", an AFOF or an ESVCLP".
26Lodgment of certain documents with the Director
In section 120(1) and 120(3) of the Partnership Act 1958 for "or an AFOF" (wherever occurring) substitute ", an AFOF or an ESVCLP".
__________________
Part 5—Shop Trading Reform Act 1996
27Definitions
(1)In section 3(1) of the Shop Trading Reform Act 1996, in the definition of shop for "occasions;" substitute "occasions.".
(2)In section 3(1) of the Shop Trading Reform Act 1996, the definition of special local shop closing times is repealed.
(3)Section 3(2) of the Shop Trading Reform Act 1996 is repealed.
28Special local shop closing times
Section 6 of the Shop Trading Reform Act 1996 is repealed.
29Restraining orders
In section 9 of the Shop Trading Reform Act 1996—
(a)in subsection (1), omit "or against a local law referred to in section 6(2)";
(b)subsection (2)(b) is repealed;
(c)in subsection (2)(c) omit "or the local law";
(d)in subsection (4) omit "or the local law, as the case requires".
30Regulations
(1)For section 11(1) of the Shop Trading Reform Act 1996 substitute—
"(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.".
(2)Section 11(2)(b) of the Shop Trading Reform Act 1996 is repealed.
31Schedule 2
Schedule 2 to the Shop Trading Reform Act 1996 is repealed.
__________________
Part 6—Subdivision Act 1988
32New section 42A of the Subdivision Act 1988 inserted
After section 42 of the Subdivision Act 1988 insert—
"42A Registrar may approve forms
(1)Subject to this Act and the regulations, the Registrar may from time to time approve forms for use under this Act.
(2)The Registrar must publish a copy of each approved form on the Internet site for the Office of Titles.
(3)If the Registrar approves a form for use under this Act, any form in or to the like effect of that form is sufficient in law.".
33Regulations
After section 43(1)(j) of the Subdivision Act 1988 insert—
"(ja)prescribing forms for the purposes of this Act; and".
__________________
Part 7—Trade Measurement Act 1995
34Definitions
(1)In section 3(1) of the Trade Measurement Act 1995 insert the following definitions—
"firewood means any wood, including dockings, edgings, mill ends, offcuts and timber products, that—
(a)is intended for use as firewood; and
(b)is in billets or lengths of not more than 2×4 m;
pack, for the purpose of deciding who packs or has packed an article as a prepacked article, includes authorise, direct, cause or permit a person to pack an article as a prepacked article;
use, in relation to the use of a measuring instrument for trade, includes—
(a)have the measuring instrument in possession for use; and
(b)make the measuring instrument available for use; and
(c)authorise, direct, cause or permit a person to do an act mentioned in paragraph (a) or (b) or anything else that is the use of the measuring instrument for trade;
weighbridge suitability statement, for a public weighbridge licence, means a statement, signed by the administering authority, that the weighbridge mentioned in the licence is suitable for use as a public weighbridge.".
(2)In section 3(1) of the Trade Measurement Act 1995, in the definition of class 4 measuring instrument—
(a)for "pattern that" substitute "pattern that, in accordance with the approved pattern";
(b)for "is marked with a symbol" substitute "has a symbol on it".
(3)In section 3(1) of the Trade Measurement Act 1995, in paragraph (e) of the definition of sell, for "paragraph (a), (b), (c) or (d)" substitute "paragraphs (a) to (d) or anything else that is a sale".
35Measuring instruments used for trade must be marked
In section 7(4) of the Trade Measurement Act 1995 for "is taken not to have committed" substitute "may not be prosecuted for".
36Use of class 4 measuring instruments
For section 7A(b) of the Trade Measurement Act 1995 substitute—
"(b)for weighing a thing to decide freight or haulage charges for the thing; or".
37Use of measuring instruments for pre-packed articles
In section 7B of the Trade Measurement Act 1995 for "approved for trade use under the National Measurement Act" substitute "of an approved pattern".
38Unjust measurement
In section 8(5) of the Trade Measurement Act 1995 for "is taken not to have committed" substitute "may not be prosecuted for".
39Supplying incorrect measuring instrument
(1)In section 9(2) of the Trade Measurement Act 1995 omit "for trade" (where thirdly occurring).
(2)After section 9(2) of the Trade Measurement Act 1995 insert—
"(2A)Subject to subsection (3)(b), it does not matter whether the person who used the measuring instrument purchased it or took it on lease, hire or loan for trade.".
40Section 23 substituted
For section 23 of the Trade Measurement Act 1995 substitute—
"23 Incorrect measurement or price calculation
(1)This section applies to a person who, for the purpose of the sale of an article at a price determined by reference to the measurement of the article, operates a measuring instrument to measure the article or decides the measurement of the article.
(2)For this section—
(a)a reference to the person's measurement of the article is a reference to the person's operation of the measuring instrument or measurement of the article as mentioned in subsection (1); and
(b)it does not matter whether the person's measurement of the article is for the article's sale by the person or by anyone else at any time.
(3)For any sale of the article at any time, the person commits an offence if, because of the person's measurement of the article—
(a)the person directly or indirectly misleads any party to the sale as to the measurement of the article or the calculation of the price, to the party's detriment; or
(b)the price paid or required to be paid is not the price correctly determined by reference to the correct measurement of the article and as a result any party to the sale suffers or would suffer detriment.
Penalty:200 penalty units.".
41New section 25A inserted
After section 25 of the Trade Measurement Act 1995 insert—
"25A Special provision for sale of firewood by volume
To apply section 23 to a sale of firewood by volume, the volume stated for the sale of the firewood (the stated volume) is taken to comply with that section if, when the firewood is stacked with as few gaps as practicable, the volume worked out using the stack's dimensions is at least the stated volume.".
42Application for licence
(1)In section 44(1)(b) of the Trade Measurement Act 1995 after "licence" insert "for a single weighbridge".
(2)After section 44(2) of the Trade Measurement Act 1995 insert—
"(2A)If the licensing authority grants a licence to a partnership, the licence must state—
(a)the names of all the partners; and
(b)if the partnership has a registered business name, the registered business name.
(2B)Each partner stated in the licence, including the licence as amended under section 54B, is taken to be a holder of the licence.".
(3)In section 44(3) of the Trade Measurement Act 1995 for "The application" substitute
"An application under this section".
43Grounds for refusal
After section 45(1) of the Trade Measurement Act 1995 insert—
"(1A)If the applicant is a partnership, subsection (1) applies to each member of the partnership.
(1B)Also, for a public weighbridge licence application for a weighbridge, the licensing authority must refuse the application if the administering authority considers the weighbridge is not suitable for use as a public weighbridge.".
44Conditions on all public weighbridge licences
(1)For section 50(1)(a) of the Trade Measurement Act 1995 substitute—
"(a)a condition that the licensee must not operate the weighbridge mentioned in the licence unless the licence or a copy of the licence has a weighbridge suitability statement written on it that is in force;
(aa)a condition that the weighbridge suitability statement is in force only until the end of—
(i)the period for which the fee payable in relation to the statement has been paid; or
(ii)the period as extended under section 52A;
(ab)a condition that the weighbridge mentioned in the licence is to be located at the place stated in the licence;".
(2)In section 50(1)(b) of the Trade Measurement Act 1995 for "a weighbridge operated pursuant to the licence" substitute "the weighbridge mentioned in the licence".
45New sections 52A and 52B inserted
After section 52 of the Trade Measurement Act 1995 insert—
"52A Continuation of weighbridge suitability statement in particular circumstances
(1)This section applies if—
(a)before the end of the period for which a weighbridge suitability statement is in force for a particular weighbridge, a licensee pays the fee for a new weighbridge suitability statement; and
(b)the administering authority has not caused the weighbridge to be examined for the purpose of providing a new weighbridge suitability statement.
(2)The licensee may continue to operate the weighbridge under the licence until the administering authority—
(a)issues to the licensee a copy of the public weighbridge licence for the weighbridge with a weighbridge suitability statement on it in force for the period for which the fee payable in relation to the statement has been paid; or
(b)decides the weighbridge is no longer suitable for use as a public weighbridge and gives written notice of the decision to the licensee under section 52B(2).
52BIf weighbridge no longer suitable for use as a public weighbridge
(1)This section applies if the administering authority decides a public weighbridge is no longer suitable for use as a public weighbridge.
(2)The administering authority may give the licensee a notice stating—
(a)why the administering authority considers the public weighbridge is no longer suitable for use as a public weighbridge; and
(b)that the licensee may make written representations to the administering authority within 28 days stating why the licensee considers the public weighbridge licence for the public weighbridge should not be cancelled.
(3)After considering any representations made to the administering authority, the administering authority may—
(a)decide to take no further action against the licensee; or
(b)recommend to the licensing authority that the public weighbridge licence for the public weighbridge be cancelled.
(4)The licensing authority may cancel the licence on the recommendation of the administering authority under subsection (3)(b).
(5)The administering authority must give the licensee a written notice stating—
(a)the decision and the reason for the decision; and
(b)that if the licensing authority cancels the licensee's licence, the licensee may appeal against the decision to the appeals tribunal under the Administration Act.
(6)This section does not limit section 7.".
46Surrender of licence
In section 54(2) of the Trade Measurement Act 1995 for "A licence" substitute "Subject to section 54B, a licence".
47New sections 54A, 54B, 54C and 54D inserted
After section 54 of the Trade Measurement Act 1995 insert—
"54A Effect of relocation of licensed weighbridge
(1)This section applies if a licensee moves a weighbridge from the location at which it was inspected before the issue of the weighbridge suitability statement for the weighbridge to another location at the place stated in the licence.
(2)The public weighbridge licence for the weighbridge is taken to have been surrendered under section 54.
54BApplication to change licence holders due to change of partnership
(1)This section applies if—
(a)a partnership is the holder of a licence; and
(b)there is or is proposed to be a change to the membership of the partnership (the change) with at least 1 partner before the change continuing as a partner after the change.
(2)The partnership may apply to the licensing authority to amend the licence to state the partners who are or will be the partners after the change.
(3)To the extent the change consists of a person ceasing to be a partner, the licensing authority must grant the application and amend the licence to remove the name of the partner from the licence.
(4)To the extent that the change involves a new partner being admitted to the partnership—
(a)the application must include the information about the new partner that the new partner would have to give to the licensing authority when applying for a licence of that kind; and
(b)after considering the application, the licensing authority must—
(i)grant the application and amend the licence to include the name of the new partner; or
(ii)refuse the application under subsection (5).
(5)The licensing authority must refuse an application to which subsection (4) applies if it would be refused under section 45 were it an application by the new partner for the licence.
(6)If the licensing authority refuses the application, the licensing authority must notify the partnership of the grounds for the refusal and the right of appeal against the refusal under section 59.
(7)If an application is granted relating to a change that is to happen at a later time, the licensing authority must amend the licence in accordance with the application from the later time.
(8)To amend a licence under this section, the licensing authority may endorse the amendment on the licence held by the partnership, or replace the licence with a licence stating the membership of the partnership after the change.
(9)An application must be accompanied by the application fee prescribed under the Administration Act.
54CEffect on licence of application under section 54B
(1)This section applies if a change within the meaning of section 54B happens—
(a)not more than 28 days before an application under the section is made; or
(b)after the application is made but before it is decided.
(2)From the day of the change, the relevant licence is taken to be held by the partnership as it exists after the change, and each partner is taken to be a holder of the licence, until—
(a)the application is granted; or
(b)if the application is refused—the end of the period allowed under section 59(2) for appeal against the refusal, and, if the partnership appeals, the end of the appeal.
54DApplication to amend condition of licence
(1)A licensee under a servicing licence may apply to the licensing authority for an amendment to a condition of the licence of a kind mentioned in section 48(2).
(2)The licensing authority may amend or refuse to amend the licence.
(3)An application must be accompanied by the application fee prescribed under the Administration Act.".
48Grounds for disciplinary action
At the end of section 56 of the Trade Measurement Act 1995 insert—
"(2)A ground for disciplinary action under subsection (1) exists in relation to a licensee who is a partnership if the ground exists in relation to any 1 or more of the members of the partnership.".
49Rights of appeal
(1)In section 59(1)(a) of the Trade Measurement Act 1995 after "licence" insert "or an amendment of a licence".
(2)After section 59(1)(e) of the Trade Measurement Act 1995 insert—
"(ea)to cancel a public weighbridge licence because the public weighbridge mentioned in the licence is no longer suitable for use as a public weighbridge; or".
50Regulations
(1)For section 80(2)(n) of the Trade Measurement Act 1995 substitute—
"(n)weighbridge suitability statements;".
(2)In section 80(2)(u) of the Trade Measurement Act 1995 for "instruments." substitute "instruments;".
(3)After section 80(2)(u) of the Trade Measurement Act 1995 insert—
"(v)the approval of forms for use under this Act.".
51New Part 9 inserted
After Part 8 of the Trade Measurement Act 1995 insert—
"__________________
Part 9—TRANSITIONAL PROVISIONS
82Certificates of suitability
A certificate of suitability for a public weighbridge that is in force immediately before the commencement of section 44 of the Fair Trading and Consumer Acts Further Amendment Act 2008, is taken to be a weighbridge suitability statement for the weighbridge's public weighbridge licence expiring when the certificate of suitability would otherwise have expired.
83Existing licensed public weighbridges
(1)This section applies if, immediately before the commencement of section 44 of the Fair Trading and Consumer Acts Further Amendment Act 2008, a licensee operates more than 1 public weighbridge under a public weighbridge licence.
(2)On the commencement—
(a)each public weighbridge is taken to be licensed under a separate public weighbridge licence; and
(b)a separate periodic licence fee is not payable because of paragraph (a) until the day the periodic licence fee is payable under section 52 after the commencement.
(3)Also, if, after the commencement—
(a)a licence for a public weighbridge that is taken under subsection (2)(a) to be licensed under a separate public weighbridge licence pays a separate periodic licence fee for the public weighbridge; and
(b)the administering authority decides the weighbridge is still suitable for use as a public weighbridge—
the licensing authority must issue to the licensee a separate public weighbridge licence for the weighbridge with a weighbridge suitability statement on it in force for the period for which the fee payable in relation to the statement has been paid.".
__________________
Part 8—Trade Measurement (Administration) Act 1995
52Other fees and charges may be prescribed
(1)After section 11(1)(c) of the Trade Measurement (Administration) Act 1995 insert—
"(ca)fees payable for providing weighbridge suitability statements or duplicates of weighbridge suitability statements;".
(2)After section 11(3) of the Trade Measurement (Administration) Act 1995 insert—
"(4)For this section, it does not matter whether the fee prescribed for a public weighbridge licence and a weighbridge suitability statement is a combined fee for the same period.".
__________________
Part 9—Amendments and Repeals
Division 1—Repeals
53Repeal of Frustrated Contracts Act 1959
The Frustrated Contracts Act 1959 is repealed.
54Repeal of Hire-Purchase Act 1959
The Hire-Purchase Act 1959 is repealed.
Division 2—Consequential and other amendments
55Chattel Securities Act 1987
In section 3(1) of the Chattel Securities Act 1987—
(a)for the definition of hire-purchase agreement substitute—
"hire-purchase agreement has the same meaning as in the Fair Trading Act 1999;";
(b)for the definition of hirer substitute—
"hirer means the person to whom goods are let, hired or agreed to be sold under a hire-purchase agreement and includes a person to whom the hirer's rights or liabilities under the agreement have passed by assignment or by operation of law;";
(c) for the definition of owner substitute—
"owner means the person letting, hiring or agreeing to sell goods under a hire-purchase agreement and includes a person to whom the owner's property in the goods or any of the owner's rights or liabilities under the agreement have passed by assignment or operation of law;".
56Credit Act 1984
In section 5(1) of the Credit Act 1984, in the definition of security interest for "Hire-Purchase Act 1959" substitute "Fair Trading Act 1999".
57Local Government Act 1989
Section 111A of the Local Government Act 1989 is repealed.
58Public Transport Competition Act 1995
In section 3(1) of the Public Transport Competition Act 1995, in the definition of hire and drive service for "Hire-Purchase Act 1959" substitute "Fair Trading Act 1999".
59Road Safety Act 1986
In section 3(1) of the Road Safety Act 1986 in the definition of hire-purchase agreement for "Hire-Purchase Act 1959" substitute "Fair Trading Act 1999".
60Amendments to Consumer Acts
On the coming into operation of an item in the Schedule, the Act specified in the heading to that item is amended as set out in that item.
Division 3—Repeal of Amending Act
61Repeal of amending Act
This Act is repealed on 1 December 2009.
__________________
SCHEDULE
Amendments to Consumer Acts
1Associations Incorporation Act 1981
After section 50C(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
2Business Names Act 1962
After section 29(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
3Domestic Building Contracts Act 1995
After section 124A(2) insert—
"(2AA)For the purposes of subsection (2), section 152A of the Fair Trading Act 1999 applies as if a reference in that section to any section of that Act were a reference to that section as applied by subsection (1) or (2).".
4Estate Agents Act 1980
4.1After section 70W insert—
"70WA Powers of court if requirement to produce information not complied with
(1)If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 70F, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 70C, 70D, 70F or 70S, the inspector may certify that failure to a court.
(3)The inspector cannot certify a failure to a court under subsection (2) if the person to whom the failure relates has been charged with an offence against section 70T.
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 70T in respect of that failure.".
4.2In section 93A(1) for "section 155" substitute "sections 152A and 155".
5Fundraising Appeals Act 1998
After section 68(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
6Introduction Agents Act 1997
After section 69(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
7Motor Car Traders Act 1986
7.1After section 82AT insert—
"82ATA Powers of court if requirement to produce information not complied with
(1)If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 82AD, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 82AA, 82AB, 82AD or 82AQ, the inspector may certify that failure to a court.
(3)The inspector cannot certify a failure to a court under subsection (1) if the person to whom the failure relates has been charged with an offence against section 82AR.
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 82AR in respect of that failure.".
7.2In section 82I(1) for "section 155" substitute "sections 152A and 155".
8Petroleum Products (Terminal Gate Pricing) Act 2000
After section 11(2) insert—
"(2AA)For the purposes of subsection (2), section 152A of the Fair Trading Act 1999 applies as if a reference in that section to any section of that Act were a reference to that section as applied by subsection (1) or (2).".
9Prostitution Control Act 1994
9.1After section 61W insert—
"61WA Powers of court if requirement to produce information not complied with
(1)Subject to subsection (3), if the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 61G, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 61D, 61E, 61G or 61T, the inspector may certify that failure to a court.
(3)The Director or an inspector cannot certify a failure to a court under subsection (1) or (2) if the person to whom the failure relates has been charged with an offence against section 61U.
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 61U in respect of that failure.".
9.2In section 86A(1) for "section 155" substitute "sections 152A and 155".
10Residential Tenancies Act 1997
After section 507A(2) insert—
"(2AA)For the purposes of subsection (2), section 152A of the Fair Trading Act 1999 applies as if a reference in that section to any section of that Act were a reference to that section as applied by subsection (1) or (2).".
11Retirement Villages Act 1986
After section 40(2) insert—
"(2A)For the purposes of subsection (2), section 152A of the Fair Trading Act 1999 applies as if a reference in that section to any section of that Act were a reference to that section as applied by subsection (1) or (2).".
12Sale of Land Act 1962
After section 48A(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
13Second-Hand Dealers and Pawnbrokers Act 1989
13.1After section 26W insert—
"26WA Powers of court if requirement to produce information not complied with
(1)If the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 26G, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 26D, 26E, 26G or 26T, the inspector may certify that failure to a court.
(3)The inspector cannot certify a failure to a court under subsection (2) if the person to whom the failure relates has been charged with an offence against section 26U.
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 26U in respect of that failure.".
13.2In section 30(1) for "section 155" substitute "sections 152A and 155".
14Travel Agents Act 1986
14.1After section 39V insert—
"39VA Powers of court if requirement to produce information not complied with
(1)Subject to subsection (3), if the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 39F, the Director may certify that failure to a court.
(2)Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 39C, 39D, 39F or 39S, the inspector may certify that failure to a court.
(3)The Director or an inspector cannot certify a failure to a court under subsection (1) or (2) if the person to whom the failure relates has been charged with an offence against section 39T.
(4)If the Director or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.
(5)If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence against section 39T in respect of that failure.".
14.2In section 44(1) for "section 155" substitute "sections 152A and 155".
15Utility Meters (Metrological Controls) Act 2002
After section 63(1) insert—
"(1AA)For the purposes of subsection (1), section 152A of the Fair Trading Act 1999 applies as if—
(a)a reference in that section to any section of the Fair Trading Act 1999 were a reference to section 106HA of that Act (as applied by subsection (1)); and
(b)section 152A(2) did not apply.".
═══════════════
Endnotes
Minister's second reading speech—
Legislative Assembly: 1 November 2007
Legislative Council: 6 December 2007
The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Trading Act 1999, the Owners Corporations Act 2006, the Partnership Act 1958, the Shop Trading Reform Act 1996, the Subdivision Act 1988, the Trade Measurement Act 1995, the Trade Measurement (Administration) Act 1995 and other Acts and to repeal the Frustrated Contracts Act 1959 and the Hire-Purchase Act 1959 and for other purposes."
0
0
0