Fair Trading and Other Acts Amendment Act 2009

i Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 3 3 Definitions 3 4 Section 32V substituted 3 32V Application of Part 3 5 What is an unfair term? 3 6 Effect of unfair term 4 7 Injunctions to prevent continued use of unfair terms 4 8 Director may require the supply of information 4 9 Declaration by the Court or Tribunal 4 10 New section 32ZDA inserted 6 32ZDA Presumption that this Part applies to a contract 6 11 Non-punitive corrective advertising orders 7 12 New section 153A inserted 7 153A Punitive orders—Adverse publicity orders 7 13 Orders to prohibit payment of money or transfer of other property 8 14 Findings in proceedings to be evidence 8 15 Awards of compensation 8 16 Transitional provisions inserted in Schedule 3 8 14 Transitional provisions—Fair Trading and Other Acts Amendment Act 2009 8 17 Statute law revision 10 PART 3—AMENDMENTS TO THE RESIDENTIAL TENANCIES ACT 1997 11 18 Educational institutions 11 19 New section 505A inserted 11 505A Offences with respect to formal affiliation of premises with school or institution 11 -- 1 of 25 -- Section Page ii 20 New section 505B inserted 12 505B Offence not to display notice about affiliation of premises with school or institution 12 21 Regulations 13 PART 4—AMENDMENTS TO THE CONSUMER CREDIT (VICTORIA) AND OTHER ACTS AMENDMENT ACT 2008 14 22 Commencement 14 23 New sections 4 and 4A substituted for section 4 14 4 New section 9A inserted 14 4A Definitions 15 24 New section 5A inserted 18 5A New section 12A inserted 18 12A Registered credit provider to be member of approved EDR scheme 18 25 Amendments to section 6 18 26 Amendment to section 24 19 27 Substitution of section 40 19 40 Repeal of amending Act 19 PART 5—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 20 28 Amendment to Consumer Credit (Victoria) Act 1995 20 29 Amendment to Retirement Villages Act 1986 20 30 Amendment to Relationships Act 2008 20 31 Amendment to Veterans Act 2005 21 PART 6—REPEAL OF AMENDING ACT 22 32 Repeal of amending Act 22 ═══════════════ ENDNOTES 23 -- 2 of 25 -- 1 Fair Trading and Other Acts Amendment Act 2009 † No. 19 of 2009 [Assented to 10 June 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Fair Trading Act 1999— (i) to apply Part 2B of that Act to contracts to which the Consumer Credit (Victoria) Act 1995 applies; and Victoria -- 3 of 25 -- Part 1—Preliminary Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 2 (ii) to strengthen enforcement under that Act; and (iii) to amend certain definitions in that Act; and (b) to amend the Residential Tenancies Act 1997 in relation to rented premises or rooms in residential premises that may or may not be formally affiliated with a school or institution which provides education and training; and (c) to amend the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 to restructure provisions in that Act to enable certain provisions to be brought into operation at different times; and (d) to make consequential amendments to the Consumer Credit (Victoria) Act 1995, the Retirement Villages Act 1986, the Relationships Act 2008 and the Veterans Act 2005. 2 Commencement (1) This Act (other than sections 18, 20 and 21) comes into operation on the day after the day on which it receives the Royal Assent. (2) Subject to subsection (3), sections 18, 20 and 21 come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 March 2010, it comes into operation on that day. __________________ s. 2 -- 4 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 3 PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 3 Definitions (1) In section 3 of the Fair Trading Act 1999, in the definition of officer, in paragraph (a), for "in section 82A" substitute "officer of a corporation has in section 9". (2) In section 3 of the Fair Trading Act 1999, in the definition of trade or commerce, for "a business" substitute "any business or professional activity whether or". 4 Section 32V substituted For section 32V of the Fair Trading Act 1999 substitute— "32V Application of Part This Part does not apply to contractual terms that are required or expressly permitted by law, but only to the extent required or permitted.". 5 What is an unfair term? In section 32W of the Fair Trading Act 1999 omit "contrary to the requirements of good faith and". s. 3 See: Act No. 16/1999. Reprint No. 3 as at 23 February 2007 and amending Act Nos 69/2006, 75/2006, 77/2006, 17/2007, 2/2008, 6/2008 and 12/2008. LawToday: www. legislation. vic.gov.au -- 5 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 4 6 Effect of unfair term For section 32Y(2) of the Fair Trading Act 1999 substitute— "(2) A prescribed unfair term— (a) in a standard form contract to which the Consumer Credit (Victoria) Act 1995 applies is unenforceable from the time the unfair term is prescribed; (b) in any other standard form contract is void.". 7 Injunctions to prevent continued use of unfair terms (1) In section 32ZA(1) of the Fair Trading Act 1999, before "Tribunal" insert "Supreme Court, the County Court or the". (2) In section 32ZA(2) of the Fair Trading Act 1999, before "Tribunal" insert "Court or the". (3) In section 32ZA(3) of the Fair Trading Act 1999, for "Section" substitute "If the Tribunal grants an injunction under this section, section". 8 Director may require the supply of information In section 32ZB(1)(b) of the Fair Trading Act 1999, before "Tribunal" insert "court or". 9 Declaration by the Court or Tribunal (1) In the heading to section 32ZC of the Fair Trading Act 1999, for "the Tribunal" substitute "Court or Tribunal". (2) In section 32ZC(1) of the Fair Trading Act 1999, before "Tribunal" insert "Supreme Court, the County Court or the". (3) In section 32ZC(2) of the Fair Trading Act 1999, before "Tribunal" insert "Court or the". s. 6 -- 6 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 5 (4) After section 32ZC(3) of the Fair Trading Act 1999 insert— "(4) If the Court or the Tribunal makes an order under subsection (1) declaring that a term of a consumer contract is an unfair term or that a term of a standard form contract is a prescribed unfair term, the Court or the Tribunal may make any one or more of the following orders— (a) an order for the payment of a sum of money— (i) by way of damages (including exemplary damages and damages in the nature of interest); or (ii) by way of restitution; (b) an order that the contract is varied in the manner specified in the order and that the variation takes effect from the time specified in the order; (c) an order that— (i) money paid by a person under the contract be refunded to that person; or (ii) property transferred by a person under the contract is returned to that person; (d) an order in the nature of an order for specific performance of the contract; (e) an order for rescission of the contract; (f) an order for rectification of the contract; (g) an order that all or any of the provisions in the contract are not to be enforced; s. 9 -- 7 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 6 (h) an order declaring that a debt is, or is not, owing; (i) an order that a person do something, including an order that— (i) the person repair or provide parts for goods provided under the contract to another person; or (ii) the person supply services required to be supplied under the contract to another person; (j) an order that a person refrain from doing something. (5) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.". 10 New section 32ZDA inserted After section 32ZD of the Fair Trading Act 1999 insert— "32ZDA Presumption that this Part applies to a contract (1) If it is alleged in any proceeding under this Part or in any other proceeding in respect of a matter arising under this Part that a contract is a consumer contract or a standard form contract to which this Part applies, it is to be presumed, unless the contrary is established, that this Part applies to the contract. (2) A presumption under subsection (1) does not apply in respect of any criminal proceedings against a natural person.". s. 10 -- 8 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 7 11 Non-punitive corrective advertising orders (1) For the heading to section 153 of the Fair Trading Act 1999 substitute— "Non-punitive orders—Corrective advertising orders". (2) In section 153(1) of the Fair Trading Act 1999— (a) omit "Minister or the"; (b) for "an adverse publicity" substitute "a corrective advertising". (3) Section 153(2) of the Fair Trading Act 1999 is repealed. (4) In section 153(3) of the Fair Trading Act 1999, for "an adverse publicity order" substitute "a corrective advertising order". 12 New section 153A inserted After section 153 of the Fair Trading Act 1999 insert— "153A Punitive orders—Adverse publicity orders (1) If in any proceedings for an offence against this Act, a person is found guilty of an offence against this Act, the court, in addition to any other penalty it may fix or order it may make, may, on the application of the Director, make an adverse publicity order in relation to the person. (2) In this section, an adverse publicity order, in relation to a person, means an order that— (a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or s. 11 -- 9 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 8 (b) requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order. (3) This section does not limit a court's powers under any other provision of this Act.". 13 Orders to prohibit payment of money or transfer of other property (1) After section 154(1)(a) of the Fair Trading Act 1999 insert— "(ab) an order prohibiting, either absolutely or subject to conditions, the relevant person from parting with possession of, or transferring or encumbering, any of that person's money or property;". (2) In section 154(1)(b) of the Fair Trading Act 1999, after "parting with possession of" insert ", or transferring or encumbering,". 14 Findings in proceedings to be evidence In section 157 of the Fair Trading Act 1999, for "151C or 153" substitute "151C, 153 or 153A". 15 Awards of compensation In section 160(1)(a) of the Fair Trading Act 1999, for "$1000" substitute "$10 000". 16 Transitional provisions inserted in Schedule 3 After clause 13 in Schedule 3 to the Fair Trading Act 1999 insert— "14 Transitional provisions—Fair Trading and Other Acts Amendment Act 2009 (1) Despite the amendment of this Act by section 4 of the Fair Trading and Other Acts Amendment Act 2009, Part 2B does s. 13 -- 10 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 9 not apply to contractual terms contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies (other than a contract in a prescribed class of contract) if the contract was entered into before the commencement of that section 4 unless a term of that contract is varied on or after that commencement, in which case Part 2B applies to that term on and from the time the variation takes effect. (2) Section 32ZDA applies only to a proceeding that commences on or after the commencement of section 10 of the Fair Trading and Other Acts Amendment Act 2009. (3) The Act as in force immediately before the commencement of sections 11 and 12 of the Fair Trading and Other Acts Amendment Act 2009 continues to apply to any order made under section 153 before that commencement. (4) The amendments made to section 154 by section 13 of the Fair Trading and Other Acts Amendment Act 2009 apply only to prescribed proceedings against a person that commence on or after the commencement of that section 13. (5) The amendment to section 160(1)(a) made by section 15 of the Fair Trading and Other Acts Amendment Act 2009 applies only in relation to an offence committed on or after the commencement of that section 15. s. 16 -- 11 of 25 -- Part 2—Amendments to the Fair Trading Act 1999 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 10 (6) For the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates and section 15 of the Fair Trading and Other Acts Amendment Act 2009 commences on a date between those 2 dates, the offence is taken to have been committed before the commencement of that section.". 17 Statute law revision (1) in section 32O(5) of the Fair Trading Act 1999, for "section 32NA" substitute "section 32NB". (2) In Schedule 1 to the Fair Trading Act 1999— (a) omit "Conveyancers Act 2006"; (b) after "Consumer Credit (Victoria) Act 1995" insert "Conveyancers Act 2006". __________________ s. 17 -- 12 of 25 -- Part 3—Amendments to the Residential Tenancies Act 1997 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 11 PART 3—AMENDMENTS TO THE RESIDENTIAL TENANCIES ACT 1997 18 Educational institutions (1) After section 21(2) of the Residential Tenancies Act 1997 insert— "(3) Before entering a written agreement referred to in subsection (2), a school or institution must consider any prescribed criteria.". (2) At the end of section 21 of the Residential Tenancies Act 1997 insert— "Note There are offences in sections 505A and 505B in Part 13 relating to this section.". 19 New section 505A inserted After section 505 of the Residential Tenancies Act 1997 insert— "505A Offences with respect to formal affiliation of premises with school or institution (1) An owner or operator of residential premises or a person acting on behalf of that owner or operator must not represent that the residential premises has a formal affiliation with a school or institution which provides education and training if the premises does not have that affiliation. Penalty: 300 penalty units. See: Act No. 109/1997. Reprint No. 4 as at 23 March 2006 and amending Act Nos 23/2006, 32/2006, 48/2006, 85/2006, 17/2007, 2/2008, 6/2008, 12/2008, 44/2008 and 52/2008. LawToday: www. legislation. vic.gov.au s. 18 -- 13 of 25 -- Part 3—Amendments to the Residential Tenancies Act 1997 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 12 (2) An owner or operator of residential premises or a person acting on behalf of that owner or operator must not engage in conduct that is liable to mislead the public that this Act does not, because of section 21(1), apply to a tenancy agreement in respect of a rented premises, or a room, that is, or is in, the residential premises. Penalty: 300 penalty units.". 20 New section 505B inserted After section 505A of the Residential Tenancies Act 1997 insert— "505B Offence not to display notice about affiliation of premises with school or institution The owner or operator of any residential premises that is formally affiliated with a school or institution which provides education and training must display prominently in a public or common area of the residential premises a notice in the prescribed form— (a) which has been endorsed in the prescribed manner by the school or institution (as the case may be); and (b) which specifies that this Act does not apply to a tenancy agreement or room in respect of the residential premises because of the formal affiliation of the residential premises with the school or institution. Penalty: 10 penalty units.". s. 20 -- 14 of 25 -- Part 3—Amendments to the Residential Tenancies Act 1997 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 13 21 Regulations Before section 511(1)(d) of the Residential Tenancies Act 1997 insert— "(a) criteria to be considered by a school or institution which provides education and training before entering a written agreement referred to in section 21(2); (b) the form of a notice required to be displayed under section 505B; (c) endorsements by schools or institutions which provide education and training of notices required to be displayed under section 505B;". __________________ s. 21 -- 15 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 14 PART 4—AMENDMENTS TO THE CONSUMER CREDIT (VICTORIA) AND OTHER ACTS AMENDMENT ACT 2008 22 Commencement For section 2(3) of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 substitute— "(3) If sections 4, 5, 5A, 20 and 23 and Parts 5 and 6 do not come into operation before 1 July 2009, they come into operation on that day.". 23 New sections 4 and 4A substituted for section 4 For section 4 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 substitute— '4 New section 9A inserted In Part 4 of the Consumer Credit (Victoria) Act 1995, before section 10 insert— "9A Definitions In this Part— approved EDR scheme means— (a) an external dispute resolution scheme that is approved by the Australian Securities and Investments Commission in accordance with section 912A(2)(b) of the Corporations Act; or s. 22 See: Act No. 6/2008. Statute Book: www. legislation. vic.gov.au -- 16 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 15 (b) a dispute resolution scheme prescribed by the regulations to be an approved EDR scheme for credit providers.". 4A Definitions (1) Insert the following definitions in section 9A of the Consumer Credit (Victoria) Act 1995— "associate, in relation to a person, means— (a) a spouse or domestic partner of the person, other than a spouse or domestic partner— (i) who is not, and has never been, involved in the person's business of providing credit; or (ii) who will not be involved in the person's proposed business of providing credit; or (b) if the person is a body corporate, a director of the body corporate; disqualifying offence means an offence involving fraud, dishonesty, violence or drug trafficking punishable on conviction by— (a) in the case of a natural person, imprisonment for 3 months or more (whether or not in addition to a fine); or (b) in the case of a body corporate, a fine of 100 penalty units or more; s. 23 -- 17 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 16 domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); Register means the Register of Credit Providers under section 19; relevant business means the business of— (a) providing credit; or (b) finance broking; or (c) providing financial services within the meaning of the Corporations Act; s. 23 -- 18 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 17 relevant licence or registration means— (a) a licence or registration as a credit provider under the law of another State or of a Territory; or (b) a licence or registration as a finance broker under the law of any Australian jurisdiction; or (c) an Australian financial services licence under the Corporations Act; spouse of a person means a person to whom the person is married.". (2) At the end of section 9A of Consumer Credit (Victoria) Act 1995 insert— "(2) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and (c) a person is not a domestic partner of another person only because they are co-tenants.".'. s. 23 -- 19 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 18 24 New section 5A inserted After section 5 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 insert— '5A New section 12A inserted After section 12 of the Consumer Credit (Victoria) Act 1995 insert— "12A Registered credit provider to be member of approved EDR scheme A registered credit provider must not carry on business as a credit provider unless the registered credit provider is a member of an approved EDR scheme. Penalty: 120 penalty units, in the case of a natural person; 600 penalty units, in the case of a body corporate.".'. 25 Amendments to section 6 (1) In the heading to section 6 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008, for "sections 12A and 12B" substitute "section 12B". (2) In section 6 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008, for "After section 12" substitute "After section 12A". (3) In section 6 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008, omit all words and expressions beginning with "12A Registered credit provider" and ending with "body corporate.". s. 24 -- 20 of 25 -- Part 4—Amendments to the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 19 26 Amendment to section 24 In section 24 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008, in proposed new section 52 of the Consumer Credit (Victoria) 1995 Act, for "section 6" substitute "section 5A". 27 Substitution of section 40 For section 40 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 substitute— "40 Repeal 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).". __________________ s. 26 -- 21 of 25 -- Part 5—Consequential Amendments to other Acts Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 20 PART 5—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 28 Amendment to Consumer Credit (Victoria) Act 1995 In section 40A(1) of the Consumer Credit (Victoria) Act 1995, for "152 and 153" substitute "152, 153 and 153A". 29 Amendment to Retirement Villages Act 1986 In section 40(2) of the Retirement Villages Act 1986, for "153 and 155" substitute "153, 153A and 155". 30 Amendment to Relationships Act 2008 Item 69 in Schedule 1 to the Relationships Act 2008 is repealed. See: Act No. 41/1995. Reprint No. 3 as at 21 August 2008 and amending Act Nos 4/2008, 6/2008, and 12/2008. LawToday: www. legislation. vic.gov.au s. 28 See: Act No. 126/1986. Reprint No. 5 as at 9 November 2006 and amending Act Nos 97/2005, 69/2006, 28/2007, 2/2008, 4/2008 and 12/2008. LawToday: www. legislation. vic.gov.au -- 22 of 25 -- Part 5—Consequential Amendments to other Acts Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 21 31 Amendment to Veterans Act 2005 In section 59(1) of the Veterans Act 2005, for "153 and 156" substitute "153, 153A and 156". __________________ See: Act No. 98/2005. Reprint No. 1 as at 23 October 2008. LawToday: www. legislation. vic.gov.au s. 31 -- 23 of 25 -- Part 6—Repeal of Amending Act Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 22 PART 6—REPEAL OF AMENDING ACT 32 Repeal of amending Act This Act is repealed on 1 March 2011. 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). ═══════════════ s. 32 -- 24 of 25 -- Fair Trading and Other Acts Amendment Act 2009 No. 19 of 2009 23 ENDNOTES † Minister's second reading speech— Legislative Assembly: 4 December 2009 Legislative Council: 2 April 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Trading Act 1999, the Residential Tenancies Act 1997, the Consumer Credit (Victoria) and Other Acts Amendment Act 2008, the Consumer Credit (Victoria) Act 1995, the Retirement Villages Act 1986, the Relationships Act 2008, the Veterans Act 2005 and for other purposes." Endnotes -- 25 of 25 --