Fair Trading and Consumer Acts Further Amendment Act 2008
Fair Trading and Consumer Acts Further
Amendment Act 2008
No. 2 of 2008
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 3
PART 2—FAIR TRADING ACT 1999 4
3 Definitions 4
4 New Part 2C inserted 5
PART 2C—FRUSTRATED CONTRACTS 5
Division 1—Introductory 5
32ZE Definitions 5
32ZF Contracts to which this Part applies 5
Division 2—Consequences of frustration of contract 6
32ZG Adjustment of amounts paid or payable to parties to
discharged contracts 6
32ZH Court may allow amounts paid or payable to be
recovered or paid 6
32ZI Parties to pay an amount for valuable benefits obtained 7
32ZJ Calculation of expenses incurred 8
32ZK Circumstances in which amounts payable under contract
of insurance excluded 8
Division 3—General 9
32ZL Circumstances in which contract provisions continue
to have effect despite frustration 9
32ZM Performed part of contract not frustrated 9
32ZN Nature of action 10
32ZO Limitation period 10
5 Functions and powers of the Director 10
6 New section 152A inserted 10
152A Powers of court if requirement of Director or inspector
not complied with 10
i
-- 1 of 52 --
Section Page
7 Defences 11
8 Consumer documents to be clear 11
9 New section 163A inserted 12
163A Complaints etc. are privileged 12
10 New clause 12 inserted in Schedule 3 12
12 Continuation of existing hire-purchase agreements 12
11 New clause 13 inserted in Schedule 3 13
13 Transitional—references to the Frustrated Contracts
Act 1959 13
PART 3—OWNERS CORPORATIONS ACT 2006 14
12 Powers of owners corporations 14
13 Audit of accounts 14
14 Insurance for lots in multi-level dwellings 14
15 New section 79 substituted 15
79 Who chairs the general meeting? 15
16 Proxies 15
17 Secretary of committee 15
18 Owners corporation certificate 15
19 Application for registration 15
20 Proposed Part 5 of the Subdivision Act 1988 16
21 Functions of Business Licensing Authority 17
22 Consequential amendment 17
PART 4—PARTNERSHIP ACT 1958 19
23 Who may apply for registration? 19
24 How an application is made? 19
25 Winding up on Director's certificate 19
26 Lodgment of certain documents with the Director 19
PART 5—SHOP TRADING REFORM ACT 1996 20
27 Definitions 20
28 Special local shop closing times 20
29 Restraining orders 20
30 Regulations 20
31 Schedule 2 21
PART 6—SUBDIVISION ACT 1988 22
32 New section 42A of the Subdivision Act 1988 inserted 22
42A Registrar may approve forms 22
33 Regulations 22
ii
-- 2 of 52 --
Section Page
PART 7—TRADE MEASUREMENT ACT 1995 23
34 Definitions 23
35 Measuring instruments used for trade must be marked 24
36 Use of class 4 measuring instruments 24
37 Use of measuring instruments for pre-packed articles 24
38 Unjust measurement 24
39 Supplying incorrect measuring instrument 25
40 Section 23 substituted 25
23 Incorrect measurement or price calculation 25
41 New section 25A inserted 26
25A Special provision for sale of firewood by volume 26
42 Application for licence 26
43 Grounds for refusal 27
44 Conditions on all public weighbridge licences 27
45 New sections 52A and 52B inserted 28
52A Continuation of weighbridge suitability statement in
particular circumstances 28
52B If weighbridge no longer suitable for use as a public
weighbridge 29
46 Surrender of licence 30
47 New sections 54A, 54B, 54C and 54D inserted 30
54A Effect of relocation of licensed weighbridge 30
54B Application to change licence holders due to change
of partnership 31
54C Effect on licence of application under section 54B 32
54D Application to amend condition of licence 33
48 Grounds for disciplinary action 33
49 Rights of appeal 33
50 Regulations 34
51 New Part 9 inserted 34
PART 9—TRANSITIONAL PROVISIONS 34
82 Certificates of suitability 34
83 Existing licensed public weighbridges 35
PART 8—TRADE MEASUREMENT (ADMINISTRATION)
ACT 1995 36
52 Other fees and charges may be prescribed 36
PART 9—AMENDMENTS AND REPEALS 37
Division 1—Repeals 37
53 Repeal of Frustrated Contracts Act 1959 37
54 Repeal of Hire-Purchase Act 1959 37
iii
-- 3 of 52 --
Section Page
Division 2—Consequential and other amendments 37
55 Chattel Securities Act 1987 37
56 Credit Act 1984 38
57 Local Government Act 1989 38
58 Public Transport Competition Act 1995 39
59 Road Safety Act 1986 39
60 Amendments to Consumer Acts 39
Division 3—Repeal of Amending Act 39
61 Repeal of amending Act 39
__________________
SCHEDULE—Amendments to Consumer Acts 40
1 Associations Incorporation Act 1981 40
2 Business Names Act 1962 40
3 Domestic Building Contracts Act 1995 40
4 Estate Agents Act 1980 41
70WA Powers of court if requirement to produce information
not complied with 41
5 Fundraising Appeals Act 1998 42
6 Introduction Agents Act 1997 42
7 Motor Car Traders Act 1986 42
82ATA Powers of court if requirement to produce information
not complied with 42
8 Petroleum Products (Terminal Gate Pricing) Act 2000 43
9 Prostitution Control Act 1994 44
61WA Powers of court if requirement to produce information
not complied with 44
10 Residential Tenancies Act 1997 45
11 Retirement Villages Act 1986 45
12 Sale of Land Act 1962 45
13 Second-Hand Dealers and Pawnbrokers Act 1989 45
26WA Powers of court if requirement to produce information
not complied with 45
14 Travel Agents Act 1986 46
39VA Powers of court if requirement to produce information
not complied with 46
15 Utility Meters (Metrological Controls) Act 2002 47
═══════════════
ENDNOTES 48
iv
-- 4 of 52 --
Victoria
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
1 Purposes
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;
1
-- 5 of 52 --
Part 1—Preliminary
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 1
(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.
2
-- 6 of 52 --
Part 1—Preliminary
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 2
2 Commencement
(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.
__________________
3
-- 7 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 3
PART 2—FAIR TRADING ACT 1999
3 Definitions
In section 3 of the Fair Trading Act 1999 for the
definition of hire-purchase agreement
substitute—
See:
Act No.
16/1999.
Reprint No. 3
as at
23 February
2007
and
amending
Act Nos
69/2006,
75/2006,
77/2006 and
17/2007.
Law Today:
www.
legislation.
vic.gov.au
"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;".
4
-- 8 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 4
4 New Part 2C inserted
After Part 2B of the Fair Trading Act 1999
insert—
"PART 2C—FRUSTRATED CONTRACTS
Division 1—Introductory
32ZE Definitions
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.
32ZF Contracts 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.
5
-- 9 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 4
(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
32ZG Adjustment 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.
32ZH Court 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
6
-- 10 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 4
(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.
32ZI Parties 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.
7
-- 11 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 4
(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.
32ZJ Calculation 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.
32ZK Circumstances 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.
8
-- 12 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 4
Division 3—General
32ZL Circumstances 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.
32ZM Performed 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.
9
-- 13 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 5
32ZN Nature of action
All actions and proceedings to recover
amounts under this Part are taken to be
founded on simple contract.
32ZO Limitation 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.
__________________".
5 Functions 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".
6 New 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.
10
-- 14 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 7
(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.".
7 Defences
In section 155(5) of the Fair Trading Act 1999
for "section 32ZA" substitute "section 32ZB(5)".
8 Consumer 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".
11
-- 15 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 9
9 New 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.".
10 New 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
12
-- 16 of 52 --
Part 2—Fair Trading Act 1999
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 11
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.".
11 New 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.".
__________________
13
-- 17 of 52 --
Part 3—Owners Corporations Act 2006
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 12
PART 3—OWNERS CORPORATIONS ACT 2006
12 Powers of owners corporations
(1) In section 3 of the Owners Corporations Act
2006 insert the following definition—
See:
Act No.
69/2006.
Statute Book:
www.
legislation.
vic.gov.au
"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".
13 Audit 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".
14 Insurance 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.".
14
-- 18 of 52 --
Part 3—Owners Corporations Act 2006
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 15
15 New 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.".
16 Proxies
In section 87(3) of the Owners Corporations Act
2006 for "subregulation (1)" substitute
"subsection (1)".
17 Secretary of committee
In section 107 of the Owners Corporations Act
2006 after "committee" (where secondly
occurring) insert "or the manager of the owners
corporation".
18 Owners 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".
19 Application for registration
In section 180(2)(a) of the Owners Corporations
Act 2006 omit "and must be verified by statutory
declaration".
15
-- 19 of 52 --
Part 3—Owners Corporations Act 2006
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 20
20 Proposed 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.
16
-- 20 of 52 --
Part 3—Owners Corporations Act 2006
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 21
(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".
21 Functions 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;".'.
22 Consequential 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—
'10.3 After section 98CA(2)(c) insert—
"(ca) be accompanied by the relevant owners
corporation documents; and".
17
-- 21 of 52 --
Part 3—Owners Corporations Act 2006
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 22
10.4 After 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.".
10.5 In 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".'.
__________________
18
-- 22 of 52 --
Part 4—Partnership Act 1958
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 23
PART 4—PARTNERSHIP ACT 1958
23 Who may apply for registration?
After section 87(2)(a)(ii) of the Partnership Act
1958 insert—
See:
Act No.
6330.
Reprint No. 7
as at
3 December
2003
and
amending
Act No.
108/2004.
Law Today:
www.
legislation.
vic.gov.au
"(iii) an ESVCLP within the meaning of that Act;
or".
24 How 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".
25 Winding 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".
26 Lodgment 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".
__________________
19
-- 23 of 52 --
Part 5—Shop Trading Reform Act 1996
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 27
PART 5—SHOP TRADING REFORM ACT 1996
27 Definitions
(1) In section 3(1) of the Shop Trading Reform Act
1996, in the definition of shop for "occasions;"
substitute "occasions.".
See:
Act No.
38/1996.
Reprint No. 3
as at
10 December
2003
and
amending
Act No.
108/2004.
Law Today:
www.
legislation.
vic.gov.au
(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.
28 Special local shop closing times
Section 6 of the Shop Trading Reform Act 1996
is repealed.
29 Restraining 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".
30 Regulations
(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.".
20
-- 24 of 52 --
Part 5—Shop Trading Reform Act 1996
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 31
(2) Section 11(2)(b) of the Shop Trading Reform
Act 1996 is repealed.
31 Schedule 2
Schedule 2 to the Shop Trading Reform Act
1996 is repealed.
__________________
21
-- 25 of 52 --
Part 6—Subdivision Act 1988
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 32
PART 6—SUBDIVISION ACT 1988
32 New section 42A of the Subdivision Act 1988
inserted
See:
Act No.
53/1988.
Reprint No. 5
as at
1 January
1999
and
amending
Act Nos
28/2000,
74/2000,
44/2001,
47/2004,
81/2004,
35/2006 and
47/2007.
Law Today:
www.
legislation.
vic.gov.au
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.".
33 Regulations
After section 43(1)(j) of the Subdivision Act
1988 insert—
"(ja) prescribing forms for the purposes of this
Act; and".
__________________
22
-- 26 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 34
PART 7—TRADE MEASUREMENT ACT 1995
34 Definitions
(1) In section 3(1) of the Trade Measurement Act
1995 insert the following definitions—
See:
Act No.
59/1995.
Reprint No. 1
as at
1 September
1999
and
amending
Act No.
17/2000.
Law Today:
www.
legislation.
vic.gov.au
"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.".
23
-- 27 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 35
(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".
35 Measuring 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".
36 Use 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".
37 Use 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".
38 Unjust measurement
In section 8(5) of the Trade Measurement Act
1995 for "is taken not to have committed"
substitute "may not be prosecuted for".
24
-- 28 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 39
39 Supplying 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.".
40 Section 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.
25
-- 29 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 41
(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.".
41 New 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.".
42 Application for licence
(1) In section 44(1)(b) of the Trade Measurement
Act 1995 after "licence" insert "for a single
weighbridge".
26
-- 30 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 43
(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".
43 Grounds 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.".
44 Conditions 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;
27
-- 31 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 45
(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".
45 New 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—
28
-- 32 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 45
(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).
52B If 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
29
-- 33 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 46
(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.".
46 Surrender of licence
In section 54(2) of the Trade Measurement Act
1995 for "A licence" substitute "Subject to
section 54B, a licence".
47 New 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.
30
-- 34 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 47
(2) The public weighbridge licence for the
weighbridge is taken to have been
surrendered under section 54.
54B Application 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
31
-- 35 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 47
(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.
54C Effect 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.
32
-- 36 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 48
(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.
54D Application 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.".
48 Grounds 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.".
49 Rights of appeal
(1) In section 59(1)(a) of the Trade Measurement
Act 1995 after "licence" insert "or an amendment
of a licence".
33
-- 37 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 50
(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".
50 Regulations
(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.".
51 New Part 9 inserted
After Part 8 of the Trade Measurement Act 1995
insert—
"__________________
PART 9—TRANSITIONAL PROVISIONS
82 Certificates 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.
34
-- 38 of 52 --
Part 7—Trade Measurement Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 51
83 Existing 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.".
__________________
35
-- 39 of 52 --
Part 8—Trade Measurement (Administration) Act 1995
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 52
PART 8—TRADE MEASUREMENT (ADMINISTRATION)
ACT 1995
52 Other fees and charges may be prescribed
(1) After section 11(1)(c) of the Trade Measurement
(Administration) Act 1995 insert—
See:
Act No.
60/1995.
Reprint No. 1
as at
12 August
1999
and
amending
Act Nos
17/2000,
44/2001,
108/2004 and
32/2006.
Law Today:
www.
legislation.
vic.gov.au
"(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.".
__________________
36
-- 40 of 52 --
Part 9—Amendments and Repeals
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 53
PART 9—AMENDMENTS AND REPEALS
Division 1—Repeals
53 Repeal of Frustrated Contracts Act 1959 See:
Act No.
6539.
Law Today:
www.
legislation.
vic.gov.au
The Frustrated Contracts Act 1959 is repealed.
54 Repeal of Hire-Purchase Act 1959 See:
Act No.
6531.
Reprint No. 4
as at
22 April 1999
and
amending
Act Nos
3/2000 and
79/2000.
Law Today:
www.
legislation.
vic.gov.au
The Hire-Purchase Act 1959 is repealed.
Division 2—Consequential and other amendments
55 Chattel Securities Act 1987 See:
Act No.
15/1987.
Reprint No. 3
as at
10 May 2007.
Law Today:
www.
legislation.
vic.gov.au
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
37
-- 41 of 52 --
Part 9—Amendments and Repeals
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 56
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;".
56 Credit Act 1984 See:
Act No.
10097.
Reprint No. 4
as at
23 February
2007
and
amending
Act Nos
34/1991 and
69/2006.
Law Today:
www.
legislation.
vic.gov.au
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".
57 Local Government Act 1989 See:
Act No.
11/1989.
Reprint No. 9
as at
1 April 2007
and
amending
Act No.
26/2007.
Law Today:
www.
legislation.
vic.gov.au
Section 111A of the Local Government Act 1989
is repealed.
38
-- 42 of 52 --
Part 9—Amendments and Repeals
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
s. 58
58 Public Transport Competition Act 1995 See:
Act No.
68/1995.
Reprint No. 2
as at
17 June 2004
and
amending
Act Nos
95/2005,
9/2006 and
47/2006.
Law Today:
www.
legislation.
vic.gov.au
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".
59 Road Safety Act 1986 See:
Act No.
127/1986.
Reprint No. 10
as at
9 November
2006
and
amending
Act Nos
19/1991,
97/2005,
48/2006,
81/2006,
14/2007 and
30/2007.
Law Today:
www.
legislation.
vic.gov.au
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".
60 Amendments 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
61 Repeal of amending Act
This Act is repealed on 1 December 2009.
__________________
39
-- 43 of 52 --
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
Sch.
SCHEDULE
AMENDMENTS TO CONSUMER ACTS
1 Associations 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.".
2 Business 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.".
3 Domestic 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).".
40
-- 44 of 52 --
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
Sch.
4 Estate Agents Act 1980
4.1 After 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.".
4.2 In section 93A(1) for "section 155" substitute
"sections 152A and 155".
41
-- 45 of 52 --
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
Sch.
5 Fundraising 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.".
6 Introduction 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.".
7 Motor Car Traders Act 1986
7.1 After 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.
42
-- 46 of 52 --
Fair Trading and Consumer Acts Further Amendment Act 2008
No. 2 of 2008
Sch.
(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.".
7.2 In section 82I(1) for "section 155" substitute
"sections 152A and 155".
8 Petroleum 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).".
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9 Prostitution Control Act 1994
9.1 After 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.".
9.2 In section 86A(1) for "section 155" substitute
"sections 152A and 155".
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10 Residential 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).".
11 Retirement 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).".
12 Sale 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.".
13 Second-Hand Dealers and Pawnbrokers Act 1989
13.1 After 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.
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(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.".
13.2 In section 30(1) for "section 155" substitute
"sections 152A and 155".
14 Travel Agents Act 1986
14.1 After 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
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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.".
14.2 In section 44(1) for "section 155" substitute
"sections 152A and 155".
15 Utility 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.".
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Endnotes
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."
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