Fair Trading (Enhanced Compliance) Act 2004

Victorian Legislation and Parliamentary Documents i Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENTS TO FAIR TRADING ACT 1999 3 3. Definitions 3 4. New section 24A inserted 3 24A. Right to payment for goods or services not supplied 3 5. When right to payment deemed to be asserted 4 6. When can the purchaser cancel the agreement? 4 7. What is a telephone marketing agreement? 4 8. Functions and powers of the Director 4 9. Conciliation and mediation 5 10. New section 105 substituted 5 105. Powers of the Director in relation to proceedings on behalf of consumers 5 11. Proceedings and costs 7 12. New section 106HA inserted 7 106HA. Power to obtain information and documents to monitor compliance 7 13. New section 114 substituted 9 114. Appointment of inspectors 9 14. Retention of seized banned goods 10 15. New section 129A inserted 11 129A. Court may order destruction of dangerous goods 11 16. New section 142A inserted 11 142A. Who can bring proceedings for offences? 11 17. Undertakings 12 18. Injunctions 12 19. New section 149A inserted 13 149A. Injunctions to do an act or thing 13 20. Interim injunctions 15 21. Power to rescind or vary injunctions 15 -- 1 of 98 -- Victorian Legislation and Parliamentary Documents Section Page ii 22. Undertakings as to damages and costs 15 23. New section 153 substituted 16 153. Adverse publicity orders 16 24. Orders to prohibit payment of money or transfer of other property 17 25. Defences 17 26. Actions for damages 18 27. New Schedule 1 substituted 18 SCHEDULE 1—Consumer Acts 18 28. Amendment to Schedule 2 19 PART 3—AMENDMENTS TO CO-OPERATIVES ACT 1996 20 29. New heading in Part 17 20 30. New Division 2 inserted in Part 17 20 Division 2—Infringement Notices 20 456A. Definition 20 456B. Power to serve a notice 20 456C. Form of notice 21 456D. Late payment of penalty 22 456E. Withdrawal of notice 22 456F. Payment expiates offence 23 456G. Application of penalty 23 456H. Prosecution after service of infringement notice 24 456I. Enforcement of infringement penalty 24 31. Repeal of section 467 25 32. New Schedule 6 substituted 25 SCHEDULE 6—Infringement Offences 25 PART 4—AMENDMENTS TO CREDIT (ADMINISTRATION) ACT 1984 26 33. Embargo provision 26 34. Advisory Committee 26 PART 5—AMENDMENTS TO ESTATE AGENTS ACT 1980 27 35. Definition 27 36. Repeal of sections 12A, 12B and 12C 27 37. Licensing of corporations 27 38. Headings in Part VI 27 39. Account deficiencies 27 -- 2 of 98 -- Victorian Legislation and Parliamentary Documents Section Page iii 40. New Division 2 inserted in Part VI 28 Division 2—Monitoring of Estate Agency Business 28 70. Definitions 28 70A. Production of identity card 29 70B. Accounts and other documents available for inspection and audit 29 70C. Estate agent to produce documents and answer questions 29 70D. Third parties to produce documents and answer questions relating to estate agent's business 30 70E. Ministers, police and public authorities to produce information to inspectors 31 70F. Certain other specified persons or bodies to produce information 31 70G. Powers on production of documents 32 70H. Order requiring supply of information and answers to questions 33 70I. Entry or search with consent 34 70J. Entry without consent or warrant 37 70K. Search warrants 38 70L. Announcement before entry 39 70M. Details of warrant to be given to occupier 40 70N. Seizure of things not mentioned in the warrant 40 70O. Embargo notice 41 70P. Copies of seized documents 42 70Q. Retention and return of seized documents or things 42 70R. Magistrates' Court may extend 3 month period 43 70S. Requirement to assist inspector during entry 44 70T. Refusal or failure to comply with requirement 44 70U. Rule against self-incrimination does not apply 44 70V. Offence to give false or misleading information 45 70W. Application of provisions relating to inspections 45 70X. Service of documents 46 70Y. Confidentiality 46 41. New section 93A inserted 47 93A. Application of Fair Trading Act 1999 47 42. Offences 48 43. Prosecutions 48 44. Corporations 49 -- 3 of 98 -- Victorian Legislation and Parliamentary Documents Section Page iv PART 6—AMENDMENTS TO FUNDRAISING APPEALS ACT 1998 50 45. New heading in Part 5 50 46. New Division 2 inserted in Part 5 50 Division 2—Infringement Notices 50 61C. Definition 50 61D. Power to serve a notice 50 61E. Form of notice 51 61F. Late payment of penalty 52 61G. Withdrawal of notice 52 61H. Payment expiates offence 53 61I. Application of penalty 53 61J. Prosecution after service of infringement notice 54 61K. Enforcement of infringement penalty 54 47. New section 68 substituted 55 68. Application of Fair Trading Act 1999 55 48. New Schedule inserted 56 SCHEDULE—Infringement Offences 56 PART 7—AMENDMENTS TO FUNERALS (PRE-PAID MONEY) ACT 1993 57 49. Repeal of section 16 57 50. Application of provisions of Fair Trading Act 1999 57 51. New section 18 substituted 58 18. Who may bring proceedings for an offence? 58 PART 8—AMENDMENTS TO INTRODUCTION AGENTS ACT 1997 59 52. Repeal of section 64 59 53. New section 69 substituted 59 69. Application of Fair Trading Act 1999 59 54. Repeal of section 71 60 PART 9—AMENDMENTS TO MOTOR CAR TRADERS ACT 1986 61 55. Repeal of section 33A 61 56. Embargo notice 61 57. New section 82CA inserted 61 82CA. Who may bring proceedings for offences? 61 58. New Division 3 inserted in Part 5A 62 Division 3—Application of Fair Trading Act 1999 62 82I. Application of Fair Trading Act 1999 62 59. Corporations 63 -- 4 of 98 -- Victorian Legislation and Parliamentary Documents Section Page v PART 10—AMENDMENTS TO PROSTITUTION CONTROL ACT 1994 64 60. Embargo notice 64 61. New sections 86 and 86A inserted 64 86. Who may bring proceedings for offences? 64 86A. Application of Fair Trading Act 1986 64 PART 11—AMENDMENTS TO RESIDENTIAL TENANCIES ACT 1997 66 62. Repeal of section 500 66 63. Application of Fair Trading Act 1999 66 64. Proceedings for offences 67 65. New Division 2A inserted in Part 13 67 Division 2A—Infringement Notices 67 510B. Definitions 67 510C. Power to serve a notice 68 510D. Form of notice 68 510E. Late payment of penalty 69 510F. Withdrawal of notice 69 510G. Payment expiates offence 70 510H. Application of penalty 71 510I. Prosecution after service of infringement notice 71 510J. Enforcement of infringement penalty 72 66. Repeal of section 533 72 67. New Schedule 2 substituted 72 SCHEDULE 2—Infringement Offences 72 PART 12—AMENDMENTS TO SALE OF LAND ACT 1962 74 68. Offences 74 69. Statement 74 70. Vendor bids 74 71. New Part IIA inserted 75 PART IIA—ENFORCEMENT 75 48A. Application of Fair Trading Act 1999 75 PART 13—AMENDMENTS TO SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989 77 72. New section 28E inserted 77 28E. Who may bring proceedings for offences? 77 73. New section 30 substituted 77 30. Application of Fair Trading Act 1999 77 -- 5 of 98 -- Victorian Legislation and Parliamentary Documents Section Page vi PART 14—AMENDMENTS TO TRAVEL AGENTS ACT 1986 79 74. Exemptions 79 75. Embargo notice 79 76. New Part 3B inserted 79 PART 3B—INFRINGEMENT NOTICES 79 39ZB. Definition 79 39ZC. Power to serve a notice 79 39ZD. Form of notice 80 39ZE. Late payment of penalty 81 39ZF. Withdrawal of notice 81 39ZG. Payment expiates offence 82 39ZH. Application of penalty 82 39ZI. Prosecution after service of infringement notice 83 39ZJ. Enforcement of infringement penalty 83 77. New sections 44 and 45 substituted 84 44. Application of Fair Trading Act 1999 84 45. Who may bring proceedings for offences? 84 78. New Schedule inserted 85 SCHEDULE—Infringement Offences 85 PART 15—AMENDMENTS TO OTHER ACTS 86 79. Amendment to Associations Incorporation Act 1981—New section 50C inserted 86 50C. Application of Fair Trading Act 1999 86 80. Amendment to Business Names Act 1962—New section 29 substituted 87 29. Application of Fair Trading Act 1999 87 81. Amendments to Domestic Building Contracts Act 1995 88 82. Amendment to Petroleum Products (Terminal Gate Pricing) Act 2000 89 83. Amendment to Trustee Companies Act 1984 90 84. Amendment to Utility Meters (Metrological Controls) Act 2002 90 63. Application of Fair Trading Act 1999 90 ═══════════════ ENDNOTES 92 -- 6 of 98 -- Victorian Legislation and Parliamentary Documents 1 Fair Trading (Enhanced Compliance) Act 2004† [Assented to 21 December 2004] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Fair Trading Act 1999 to enhance compliance with that Act and other Consumer Acts; and Victoria No. 103 of 2004 -- 7 of 98 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 2 (b) to amend the Co-operatives Act 1996, the Credit (Administration) Act 1984, the Estate Agents Act 1980, the Fundraising Appeals Act 1998, the Funerals (Pre-Paid Money) Act 1993, the Introduction Agents Act 1997, the Motor Car Traders Act 1986, the Prostitution Control Act 1994, the Residential Tenancies Act 1997, the Sale of Land Act 1962, the Second-Hand Dealers and Pawnbrokers Act 1989, the Travel Agents Act 1986 and other Consumer Acts to improve the operation of, and enhance compliance with, those Acts; and (c) to amend the Trustee Companies Act 1984 to correct the names of trustee companies. 2. Commencement (1) This Act (except section 37) comes into operation on the day after the day on which it receives the Royal Assent. (2) Section 37 comes into operation on 1 July 2005. __________________ s. 2 -- 8 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 3 PART 2—AMENDMENTS TO FAIR TRADING ACT 1999 3. Definitions (1) In section 3 of the Fair Trading Act 1999 for the definition of "Consumer Act" substitute— ' "Consumer Act" means— (a) an Act listed in Schedule 1; or (b) Part 5 of the Subdivision Act 1988;'. (2) In section 3 of the Fair Trading Act 1999 in paragraph (b) of the definition of "officer" for "and an employee" substitute "or an employee". 4. New section 24A inserted After section 24 of the Fair Trading Act 1999 insert— "24A. Right to payment for goods or services not supplied A person must not, in trade or commerce, assert a right to payment from another person for the supply of goods or services if, at the time of the assertion of the right to payment— (a) no request for the goods or services had been made by or on behalf of the other person; and See: Act No. 16/1999. Reprint No. 2 as at 30 August 2004. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 9 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 4 (b) the goods or services were not supplied. Penalty: 240 penalty units, in the case of a natural person. 600 penalty units, in the case of a body corporate. Example This offence would apply to the sending of false invoices, that is invoices for goods or services that have not been supplied.". 5. When right to payment deemed to be asserted In section 28 of the Fair Trading Act 1999, for "sections 24 and 27" substitute "sections 24, 24A and 27". 6. When can the purchaser cancel the agreement? In section 63(2) of the Fair Trading Act 1999, for "sections 61(1)(b), 61(1)(c) and 61(1)(i)" substitute "section 61(1)(b), 61(1)(c) or 61(1)(i)". 7. What is a telephone marketing agreement? In section 67A(3)(d) of the Fair Trading Act 1999 omit "for the purpose of ascertaining the cooling-off period in relation to each of the agreements,". 8. Functions and powers of the Director (1) After section 100(1)(b) of the Fair Trading Act 1999 insert— "(ba) to monitor compliance with this Act and the regulations and the Consumer Acts and the regulations under the Consumer Acts; (bb) to prepare and publish guidelines in relation to the operation and enforcement of this Act or the regulations or a Consumer Act or the regulations under a Consumer Act;". s. 5 -- 10 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 5 (2) For section 100(1)(f) of the Fair Trading Act 1999 substitute— "(f) to encourage the preparation and use of codes of practice for guidance in safeguarding and promoting the interests of purchasers of goods and services; (fa) to prepare codes of practice safeguarding and promoting the interests of purchasers of goods and services and submit those codes of practice to the Minister for inclusion in the regulations under this Act;". 9. Conciliation and mediation (1) Insert the following heading to section 104 of the Fair Trading Act 1999— "Conciliation and mediation". (2) In section 104(1) of the Fair Trading Act 1999, after "conciliation" insert "or mediation". 10. New section 105 substituted For section 105 of the Fair Trading Act 1999 substitute— '105. Powers of the Director in relation to proceedings on behalf of consumers (1) The Director may, subject to this section, institute or continue proceedings on behalf of, or defend proceedings brought against, a person or persons in respect of a consumer dispute. (2) The Director must not, under sub-section (1), institute or continue or defend proceedings unless the Director is satisfied— (a) that the person or persons have a good cause of action or a good defence to an action relating to the consumer dispute; and s. 9 -- 11 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 6 (b) that the person or persons are not bringing proceedings against a natural person who is acquiring goods or services of a kind ordinarily used for personal, household or domestic purposes; and (c) that it is in the public interest to institute, continue or defend proceedings on behalf of the person or persons. (3) The Director must not, under sub-section (1), institute, continue or defend proceedings on behalf of a person or persons unless— (a) the person has or the persons have given consent in writing; or (b) in the case of group proceedings or representative proceedings, the representative party has given consent. (4) After consent has been given under sub- section (3), the Director may institute or continue a proceeding or defence on behalf of a person or persons even if the person or any of the persons revokes the consent. (5) In this section— "consumer dispute" means a dispute between a purchaser or purchasers or a possible purchaser or purchasers and a supplier about a supply or supplies or possible supply or supplies of goods or services in trade or commerce; "proceeding" includes group proceeding and representative proceeding.'. s. 10 -- 12 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 7 11. Proceedings and costs (1) In section 106(1) of the Fair Trading Act 1999— (a) after "institutes" insert ", continues"; (b) in paragraph (c) after "recovered" insert "by the Director in respect of the person". (2) In section 106(1A) of the Fair Trading Act 1999 for "proceedings or defence" substitute "institution, defence or continuation of the proceedings". (3) In section 106(1B) of the Fair Trading Act 1999— (a) for "proceedings or defence" substitute "institution, defence or continuation of the proceedings"; (b) after "recovered" insert "by the Director in respect of the person". (4) In section 106(2) of the Fair Trading Act 1999 after "instituted" insert ", continued". 12. New section 106HA inserted In Division 4 of Part 8 of the Fair Trading Act 1999, before section 106I insert— "106HA. Power to obtain information and documents to monitor compliance (1) The Director may, by notice in writing, require a person who the Director believes is capable of providing information or producing documents that may assist the Director in monitoring compliance with this Act or the regulations— (a) to provide to the Director, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the s. 11 -- 13 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 8 time and in the manner specified in the notice, that information; or (b) to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents; or (c) to appear before the Director at a time and place specified in the notice to give that information, either orally or in writing, and produce those documents. (2) A person must not— (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or (b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or (c) obstruct or hinder the Director in exercising a power under this section. Penalty: 20 penalty units. (3) Subject to sub-section (4), a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. (4) Despite sub-section (3), the answer by a person to any question asked in a notice under this section or the provision by a person of any information or the production by any person of a document in compliance with a notice under this section, is not s. 12 -- 14 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 9 admissible in evidence against the person in any proceedings other than proceedings under this section. (5) If any documents are produced to the Director under this section, the Director may make copies of or take extracts from the documents and retain possession of those copies and extracts. (6) Section 106J does not apply to documents produced under this section.". 13. New section 114 substituted For section 114 of the Fair Trading Act 1999 substitute— '114. Appointment of inspectors (1) The Director may, by instrument, appoint as an inspector— (a) any employee under Part 3 of the Public Sector Management and Employment Act 1998; (b) any person who is appointed as an inspector, enforcement officer or authorised officer by or under any other Act; (c) any person who is appointed or authorised as an inspector, investigator, authorised officer or authorised person under an interstate Act. (2) An inspector appointed under sub-section (1)(a) or (1)(b) may also be appointed or authorised under an interstate Act as an inspector, investigator, authorised officer or authorised person under that Act. s. 13 -- 15 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 10 (3) The Director must not appoint a person as an inspector under this section unless the Director is satisfied that the person is appropriately qualified or has successfully completed appropriate training. (4) In this section "interstate Act" means— (a) Fair Trading (Consumer Affairs) Act 1973 of the Australian Capital Territory; (b) the Fair Trading Act 1987 of New South Wales; (c) the Consumer Affairs and Fair Trading Act of the Northern Territory; (d) the Fair Trading Act 1989 of Queensland; (e) the Fair Trading Act 1987 of South Australia; (f) the Consumer Affairs Act 1988 of Tasmania; (g) the Fair Trading Act 1987 of Western Australia; (h) a prescribed Act of a State (other than Victoria) or Territory.'. 14. Retention of seized banned goods After section 128(2)(b) of the Fair Trading Act 1999 insert— "; or (c) a court makes an order under section 129A permitting the destruction of the thing.". s. 14 -- 16 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 11 15. New section 129A inserted After section 129 of the Fair Trading Act 1999 insert— "129A. Court may order destruction of dangerous goods (1) If an inspector seizes goods under this Part that are of a kind in relation to which there is in force an interim ban order, a fixed term ban order or a permanent ban order, the Director may apply to a court for an order permitting destruction of the goods. (2) On an application under sub-section (1), the court may make an order permitting the destruction of the goods, if it is satisfied that it is appropriate to do so. (3) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the goods described in the application.". 16. New section 142A inserted After section 142 of the Fair Trading Act 1999 insert— "142A. Who can bring proceedings for offences? (1) Proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section. (2) In proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act it must be presumed, in the absence of s. 15 -- 17 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 12 evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) This section does not apply to proceedings for an indictable offence. (4) Sub-section (1) does not apply to a Consumer Act or the regulations under a Consumer Act if express provision is made in that Act specifying who may bring proceedings for offences against that Act or the regulations under that Act.". 17. Undertakings After section 146(2) of the Fair Trading Act 1999 insert— "(2A) The Director, with the consent of the person who gave an undertaking, may apply, at any time, to the Magistrates' Court for an order directing the person to comply with the undertaking. (2B) On an application under sub-section (2A), the Magistrates' Court may by order direct the person who gave the undertaking to comply with the undertaking.". 18. Injunctions (1) Insert the following heading to section 149 of the Fair Trading Act 1999— "Injunctions to restrain conduct". (2) In section 149(1) of the Fair Trading Act 1999, after "apply to the" insert "Supreme Court, County Court or". (3) In section 149(2) of the Fair Trading Act 1999, for "Magistrates' Court" substitute "Court". s. 17 -- 18 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 13 19. New section 149A inserted After section 149 of the Fair Trading Act 1999 insert— "149A. Injunctions to do an act or thing (1) The Supreme Court or the County Court, on the application of the Minister, the Director or any other person, may grant an injunction requiring a person to do any act or thing if the Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes— (a) a contravention of any provision of this Act; or (b) attempting or conspiring to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or (e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision. (2) The power of the Court under this section to grant an injunction requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and s. 19 -- 19 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 14 (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing. (3) Without limiting sub-section (1), an injunction under this section may require a person— (a) to institute a training program for the person's employees in relation to compliance with this Act; (b) to refund money to purchasers; (c) to transfer property to purchasers; (d) to disclose information about the person's business activities or business associates; (e) to honour any promise made in the course of misleading or deceptive conduct or in a false representation; (f) to destroy or dispose of goods used for the purpose of a contravention of this Act. (4) Despite sub-sections (1) and (3), only the Supreme Court may grant an injunction under this section requiring a person to transfer an interest in land. (5) An application for an injunction under this section may be made ex parte.". s. 19 -- 20 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 15 20. Interim injunctions (1) In section 150(1) of the Fair Trading Act 1999 before "Magistrates' Court" insert "Supreme Court, County Court or". (2) After section 150(1) of the Fair Trading Act 1999 insert— "(1A) The Supreme Court or County Court may grant an interim injunction pending determination of an application under section 149A in relation to an act or thing, if, in the opinion of the Court it is desirable to do so— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing.". 21. Power to rescind or vary injunctions In section 151 of the Fair Trading Act 1999— (a) for "The Magistrates' Court" substitute "A court"; and (b) after "section 149" insert "or 149A". 22. Undertakings as to damages and costs (1) In section 152(1) of the Fair Trading Act 1999— (a) after "section 149" insert ", 149A"; and (b) for "Magistrates' Court" (where twice occurring) substitute "court". s. 20 -- 21 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 16 (2) In section 152(2) of the Fair Trading Act 1999— (a) after "section 149" insert "or 149A"; (b) for "Magistrates' Court" substitute "court". 23. New section 153 substituted For section 153 of the Fair Trading Act 1999 substitute— '153. Adverse publicity orders (1) A court may, on the application of the Minister or the Director, make an adverse publicity order in relation to a person if the court is satisfied that the person has contravened or has been involved in a contravention of Part 2, 2A, 2B, 3, 4, 5 or 6. (2) 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 make an adverse publicity order in relation to the person. (3) 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 (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. s. 23 -- 22 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 17 (4) This section does not limit a court's powers under any other provision of this Act.'. 24. Orders to prohibit payment of money or transfer of other property In section 154(8) of the Fair Trading Act 1999— (a) in paragraph (a), after "Part 2," insert "2A, 2B,"; (b) for paragraph (b) substitute— "(b) proceedings on an application for an injunction under section 149, 149A, 150, 151A or 151B against a person alleged to have contravened Part 2, 2A, 2B, 3, 4, 5 or 6; or". 25. Defences (1) In section 155(1) of the Fair Trading Act 1999 for "a provision of Part 2" substitute "a prescribed provision". (2) In section 155(4) of the Fair Trading Act 1999— (a) for "a provision of Part 2" substitute "a prescribed provision"; (b) for "Part 2" (where secondly occurring) substitute "a prescribed provision". (3) After section 155(4) of the Fair Trading Act 1999 insert— '(5) In this section "prescribed provision" means a provision of this Act other than section 32ZA, Part 3, section 97, Part 8 or Part 10.'. s. 24 -- 23 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 18 26. Actions for damages In section 159(1) of the Fair Trading Act 1999 after "any person" insert "who contravened the provision or was". 27. New Schedule 1 substituted For Schedule 1 to the Fair Trading Act 1999 substitute— "SCHEDULE 1 CONSUMER ACTS Associations Incorporation Act 1981 Business Names Act 1962 Consumer Credit (Victoria) Act 1995 Co-operatives Act 1996 Credit Act 1984 Credit (Administration) Act 1984 Domestic Building Contracts Act 1995 Estate Agents Act 1980 Fair Trading Act 1999 Fundraising Appeals Act 1998 Funerals (Pre-Paid Money) Act 1993 Goods Act 1958 Introduction Agents Act 1997 Motor Car Traders Act 1986 Partnership Act 1958 Petroleum Products (Terminal Gate Pricing) Act 2000 Prostitution Control Act 1994 Residential Tenancies Act 1997 Retirement Villages Act 1986 Sale of Land Act 1962 Second-Hand Dealers and Pawnbrokers Act 1989 s. 26 -- 24 of 98 -- Victorian Legislation and Parliamentary Documents Part 2—Amendments to Fair Trading Act 1999 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 19 Trade Measurement Act 1995 Trade Measurement (Administration) Act 1995 Travel Agents Act 1986 Utility Meters (Metrological Controls) Act 2002 __________________". 28. Amendment to Schedule 2 In Part 2 of Schedule 2 to the Fair Trading Act 1999, after "THE SUPPLIER OR THE SUPPLIER'S AGENT MUST NOT REQUIRE YOU TO PAY FOR SERVICES PROVIDED TO YOU DURING THE COOLING-OFF PERIOD" insert "(UNLESS, IN THE CASE OF A TELEPHONE MARKETING AGREEMENT, THE SERVICES ARE BEING PROVIDED TO YOU ON A CONTINUING BASIS)". __________________ s. 28 -- 25 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 20 PART 3—AMENDMENTS TO CO-OPERATIVES ACT 1996 29. New heading in Part 17 After the heading to Part 17 of the Co-operatives Act 1996 insert— "Division 1—General Enforcement Provisions". 30. New Division 2 inserted in Part 17 At the end of Part 17 of the Co-operatives Act 1996 insert— 'Division 2—Infringement Notices 456A. Definition In this Division— "authorised officer" means— (a) an inspector appointed under Part 15; (b) a member of the police force; (c) a person authorised in writing by the Registrar. 456B. Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against a provision of this Act specified in Schedule 6. See: Act No. 84/1996. Reprint No. 2 as at 1 July 2002 and amending Act Nos 106/2003 and 10/2004. LawToday: www.dms. dpc.vic. gov.au s. 29 -- 26 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 21 (2) An infringement notice may be served on a person— (a) by delivering it personally to the person; or (b) by sending it by post addressed to the person at the person's last known place of residence or business. 456C. Form of notice An infringement notice must be in a form approved by the Registrar and must set out— (a) the date of the notice; (b) the provision of this Act that creates the offence; (c) the date, time and place of the alleged offence; (d) the nature and a brief description of the alleged offence; (e) the infringement penalty for the alleged offence set out in the regulations; (f) the manner in which the infringement penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; (h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; s. 30 -- 27 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 22 (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court; (j) any other prescribed particulars. 456D. Late payment of penalty An authorised officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and (b) the infringement notice has not been withdrawn. 456E. Withdrawal of notice (1) A member of the police force may withdraw an infringement notice issued by a member of the police force under this Division within 28 days after it was served. (2) The Registrar may withdraw an infringement notice issued by any other authorised officer under this Division within 28 days after it was served. (3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement notice was served. s. 30 -- 28 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 23 (4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must be refunded on the notice being withdrawn, and the Consolidated Fund is, to the necessary extent, appropriated accordingly. (5) Proceedings for the offence in respect of which the infringement notice has been served may still be taken or continued despite the withdrawal of the notice. 456F. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time specified in the notice or payment is accepted in accordance with section 456D, then— (a) the person on whom the notice was served has expiated the offence by that payment; and (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for the offence. 456G. Application of penalty (1) An infringement penalty paid under this Division must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Division is not and must not be taken to be— s. 30 -- 29 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 24 (a) an admission of guilt in relation to the offence; or (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. (3) The payment of an infringement penalty under this Division must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 456H. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment specified in the notice or in accordance with section 456D; or (b) the notice is withdrawn. 456I. Enforcement of infringement penalty Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement notice is an infringement notice within the meaning of Schedule 7 to that Act; and (b) the infringement penalty has not been paid within the time specified in the notice or in accordance with section 456D; and s. 30 -- 30 of 98 -- Victorian Legislation and Parliamentary Documents Part 3—Amendments to Co-operatives Act 1996 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 25 (c) the notice has not been withdrawn; and (d) a charge has not been filed in accordance with section 456H.'. 31. Repeal of section 467 Section 467 of the Co-operatives Act 1996 is repealed. 32. New Schedule 6 substituted For Schedule 6 to the Co-operatives Act 1996 substitute— "SCHEDULE 6 INFRINGEMENT OFFENCES Section 71 Section 250 Section 75 Section 251 Section 192(4) Section 252(4) Section 238(2) Section 254(2) Section 244(1) Section 256(1) Section 246(6) Section 256(2) Section 246(7) Section 256(3) Section 248 Section 376(1) Section 249 Section 409A __________________". __________________ s. 31 -- 31 of 98 -- Victorian Legislation and Parliamentary Documents Part 4—Amendments to Credit (Administration) Act 1984 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 26 PART 4—AMENDMENTS TO CREDIT (ADMINISTRATION) ACT 1984 33. Embargo provision In section 32(1) of the Credit (Administration) Act 1984 omit "or section 124". 34. Advisory Committee (1) For section 86AA(3)(b) of the Credit (Administration) Act 1984, substitute— "(b) such amounts as the Minister determines from time to time to be paid in respect of— (i) the remuneration of the members of the Advisory Committee established under section 86AC; and (ii) the reasonable costs and expenses of that Committee in performing its functions under this Part.". (2) In section 86AB(b) of the Credit (Administration) Act 1984 omit "(otherwise than by the conduct of legal proceedings)". (3) After section 86AC(2) of the Credit (Administration) Act 1984 insert— "(2A) A member of the Committee is entitled to be paid such remuneration as is determined from time to time by the Minister.". __________________ See: Act No. 10091. Reprint No. 4 as at 1 September 1999 and amending Act Nos 35/2000 and 106/2003. LawToday: www.dms. dpc.vic. gov.au s. 33 -- 32 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 27 PART 5—AMENDMENTS TO ESTATE AGENTS ACT 1980 35. Definition In section 4(1) of the Estate Agents Act 1980 insert the following definition— ' "inspector" means an inspector appointed under the Fair Trading Act 1999;'. 36. Repeal of sections 12A, 12B and 12C Sections 12A, 12B and 12C of the Estate Agents Act 1980 are repealed. 37. Licensing of corporations Sections 15(2), 15(2A), 15(5) and 15(6) of the Estate Agents Act 1980 are repealed. 38. Headings in Part VI (1) In the heading to Part VI of the Estate Agents Act 1980, for "ACCOUNTS AND AUDIT" substitute "ACCOUNTS, AUDIT AND MONITORING OF ESTATE AGENCY BUSINESS". (2) After the heading to Part VI of the Estate Agents Act 1980 insert the following heading— "Division 1—Accounts and Audit". 39. Account deficiencies (1) After section 64(15) of the Estate Agents Act 1980 insert— "(16) An auditor is not required to report a deficiency under this section if— (a) the deficiency was caused solely by an error by an authorised deposit-taking institution or by inadvertence; and (b) the deficiency is rectified within 2 business days of its discovery.". See: Act No. 9428. Reprint No. 8 as at 1 February 2004 and amending Act Nos 41/2003 and 17/2004. LawToday: www.dms. dpc.vic. gov.au s. 35 -- 33 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 28 (2) After section 90(2) of the Estate Agents Act 1980 insert— "(3) This section does not apply to a deficiency of money in or payable into a trust account if— (a) the deficiency was caused solely by an error by an authorised deposit-taking institution or by inadvertence; and (b) the deficiency is rectified within 2 business days of its discovery.". 40. New Division 2 inserted in Part VI For sections 70, 70A, 70B, 70C, 70D and 70E of the Estate Agents Act 1980 substitute— 'Division 2—Monitoring of Estate Agency Business 70. Definitions In this Division— "estate agent" includes licensed estate agent and any person— (a) whose estate agent's licence has expired or has been cancelled; or (b) who is a director or officer of a corporation which is a licensed estate agent; or (c) where the licence of a corporation has expired or has been cancelled, who was a director or officer of the corporation at the time the licence expired or was cancelled; s. 40 -- 34 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 29 "trust account" includes any account of or with respect to any moneys received or held by a person in respect of any transaction by that person as an estate agent. 70A. Production of identity card An inspector must produce his or her identity card for inspection— (a) before exercising a power under this Division other than a requirement made by post; and (b) at any time during the exercise of a power under this Division, if asked to do so. Penalty: 10 penalty units. 70B. Accounts and other documents available for inspection and audit An estate agent must, at all reasonable times at each office at which that estate agent carries on business as an estate agent, keep all documents (including trust accounts and records) relating to the business carried on at that office available for inspection or audit by an inspector in a form in which they can be readily and expeditiously inspected or audited by an inspector. Penalty: 25 penalty units. 70C. Estate agent to produce documents and answer questions For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may require an estate agent at a time and place specified by the inspector— s. 40 -- 35 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 30 (a) to answer orally or in writing any questions put by the inspector relating to the estate agent's business as an estate agent; (b) to supply orally or in writing information required by the inspector relating to that business; (c) to produce to the inspector specified documents or documents of a specified class (including trust accounts and records) relating to that business. 70D. Third parties to produce documents and answer questions relating to estate agent's business For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may require any person who has possession, custody or control of documents (including trust accounts and records) relating to an estate agent's business as an estate agent— (a) to answer orally or in writing any questions put by the inspector relating to the estate agent's business as an estate agent; (b) to supply orally or in writing information required by the inspector relating to that business; (c) to produce to the inspector specified documents or documents of a specified class (including trust accounts and records) relating to that business. s. 40 -- 36 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 31 70E. Ministers, police and public authorities to produce information to inspectors (1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, the Director or an inspector may request a specified public body within a time specified by the Director or inspector— (a) to answer orally or in writing any questions put by the inspector relating to an estate agent's business as an estate agent; (b) to supply orally or in writing information required by the inspector relating to that business. (2) An inspector can only make a request under sub-section (1) with the written consent of the Director. (3) A specified public body must comply with a request under sub-section (1). (4) In this section "specified public body" means— (a) a Minister; or (b) a public statutory authority; or (c) a municipal council; or (d) the Chief Commissioner of Police. 70F. Certain other specified persons or bodies to produce information (1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, the Director or an inspector may require a specified person or body within a time specified by the Director or inspector— s. 40 -- 37 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 32 (a) to answer orally or in writing any questions put by the inspector relating to an estate agent's business as an estate agent; (b) to supply orally or in writing information required by the inspector relating to that business. (2) An inspector can only make a requirement under sub-section (1) with the written consent of the Director. (3) In this section "specified person or body" means— (a) a person who is a publisher of a publication; or (b) a person who is the owner or operator of a broadcasting service; or (c) a person who is the owner or operator of a telecommunications service; or (d) a person who is the owner or operator of a postal service; or (e) a financial institution. 70G. Powers on production of documents (1) If any documents (including trust accounts and records) are produced to an inspector under section 70C or 70D, the inspector may— (a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts from the documents; s. 40 -- 38 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 33 (c) seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under this Act or the regulations; (d) seize the documents if the inspector— (i) considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under any Consumer Act; and (ii) believes on reasonable grounds, that it is necessary to seize the documents in order to prevent their concealment, loss or destruction or their use in the contravention of any Consumer Act; (e) secure any seized documents against interference; (f) retain possession of the documents in accordance with this Division. (2) An inspector must not require a person to produce a document at a place other than the person's place of business or an office of the Director without the consent of the person. 70H. Order requiring supply of information and answers to questions (1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector, with the written approval of the Director, may apply to the Magistrates' Court for an order requiring a person at a time and place specified by an inspector— s. 40 -- 39 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 34 (a) to answer orally or in writing any questions put by an inspector relating to an estate agency business; or (b) to supply orally or in writing information required by an inspector in relation to an estate agency business; or (c) to produce to the inspector specified documents or documents of a specified class in relation to an estate agency business. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of monitoring compliance with this Act or the regulations, the Court may grant the order sought. (3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect. (4) An inspector who executes an order under this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order. 70I. Entry or search with consent (1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector, with the consent of the occupier of the premises, may— (a) enter and search any premises; s. 40 -- 40 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 35 (b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (d) inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any premises with the consent of the occupier unless, before the occupier consents to that entry, the inspector has— (a) produced his or her identity card for inspection; and (b) informed the occupier— (i) of the purpose of the search; and (ii) that the occupier may refuse to give consent to the entry and search or to the seizure of anything found during the search; and (iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and s. 40 -- 41 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 36 (iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings. (3) If an occupier consents to an entry and search, the inspector who requested consent must before entering the premises ask the occupier to sign an acknowledgment stating— (a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search or to the seizure of anything or to the taking of any sample, copy or extract; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or taking of any thing during a search under this section, the inspector must before seizing or taking the thing ask the occupier to sign an acknowledgment stating— (a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. s. 40 -- 42 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 37 (5) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment before the inspector leaves the premises. (6) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or taking of the thing. 70J. Entry without consent or warrant (1) For the purpose of monitoring compliance with this Act or the regulations or carrying out any audit under this Act, an inspector may (with the assistance, if necessary, of another inspector or a member of the police force) do all or any of the following— (a) enter and search any premises at which an estate agent is carrying on business at any time that the premises are open for business or between the hours of 9 a.m. and 5 p.m.; (b) seize or secure against interference anything that the Director or inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations or with an audit under this Act that is found on or in the premises; (c) inspect and make copies of or take extracts from any document kept on the premises. s. 40 -- 43 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 38 (2) An inspector must not enter or search any premises under sub-section (1) unless, before that entry, the inspector has produced his or her identity card for inspection by the occupier of the premises. 70K. Search warrants (1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of monitoring compliance with this Act or the regulations or the carrying out of any audit under this Act. (2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of monitoring compliance with this Act or the regulations or the carrying out of any audit under this Act, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989, authorising an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment— (a) to enter the premises specified in the warrant, if necessary by force; and (b) to do all or any of the following— (i) search for; (ii) seize; (iii) secure against interference; (iv) examine and inspect; s. 40 -- 44 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 39 (v) make copies of or take extracts from— a thing or things of a particular kind named or described in the warrant and which the inspector believes, on reasonable grounds, to be connected with a contravention of this Act or the regulations or with an audit under this Act. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants under this section. 70L. Announcement before entry (1) On executing a search warrant, the inspector executing the warrant— (a) must announce that he or she is authorised by the warrant to enter the premises; and s. 40 -- 45 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 40 (b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) An inspector need not comply with sub- section (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. 70M. Details of warrant to be given to occupier (1) If the occupier is present at premises where a search warrant is being executed, the inspector must— (a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises where a search warrant is being executed, the inspector must— (a) identify himself or herself to a person (if any) at the premises; and (b) give to the person a copy of the warrant. 70N. Seizure of things not mentioned in the warrant A search warrant under section 70K authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if— s. 40 -- 46 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 41 (a) the inspector believes, on reasonable grounds, that the thing— (i) is of a kind which could have been included in a search warrant issued under this Division; or (ii) will afford evidence about the contravention of any Consumer Act; and (b) in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other Consumer Act. 70O. Embargo notice (1) An inspector executing a search warrant who is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form— (a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who— (a) sells; or (b) leases; or s. 40 -- 47 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 42 (c) without the written consent of the inspector who issued the embargo notice, moves; or (d) transfers; or (e) otherwise deals with— the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 25 penalty units. (3) It is a defence to a prosecution for an offence against sub-section (2) to prove that the defendant moved the thing or the part of the thing for the purpose of protecting and preserving it. (4) Despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void. 70P. Copies of seized documents (1) If an inspector retains possession of a document taken or seized from a person under this Division, the inspector must give the person, within 21 days of the seizure, a copy of the document certified as correct by the inspector. (2) A copy of a document certified under sub- section (1) shall be received in all courts and tribunals to be evidence of equal validity to the original. 70Q. Retention and return of seized documents or things (1) If an inspector seizes a document or other thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. s. 40 -- 48 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 43 (2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 70R extending the period during which the document or thing may be retained. 70R. Magistrates' Court may extend 3 month period (1) An inspector may apply to the Magistrates' Court within 3 months after seizing a document or other thing under this Division, (or within a period extended by the Court under this section) for an extension of the period for which the inspector may retain the document or thing. (2) The Magistrates' Court may order such an extension if it is satisfied that retention of the document or other thing is necessary— (a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred or for any audit under this Act; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. s. 40 -- 49 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 44 (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. 70S. Requirement to assist inspector during entry To the extent that it is reasonably necessary to determine compliance with this Act or the regulations or to carry out any audit under this Act, an inspector exercising a power of entry under this Division who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person— (a) to give information to the inspector, orally or in writing; and (b) to produce documents to the inspector; and (c) to give reasonable assistance to the inspector. 70T. Refusal or failure to comply with requirement A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division. Penalty: 25 penalty units. 70U. Rule against self-incrimination does not apply (1) A person is not excused from answering a question or producing a document under this Division on the ground that the answer or document might tend to incriminate the person. s. 40 -- 50 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 45 (2) If the person claims, before answering a question, that the answer might tend to incriminate them, the answer is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer. 70V. Offence to give false or misleading information A person must not— (a) give information to an inspector under this Division that the person believes to be false or misleading in any material particular; or (b) produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 25 penalty units. 70W. Application of provisions relating to inspections Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the exercise or attempted exercise of a power of an inspector under this Division as if any reference in those sections to Part 10 of that Act were a reference to this Division. s. 40 -- 51 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 46 70X. Service of documents (1) A written requirement by an inspector under this Division may be given personally or by registered post to a person— (a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or information in response to a requirement of an inspector under this Division may send that document or information to the Director by registered post. 70Y. Confidentiality (1) An inspector must not, except to the extent necessary to carry out the inspector's functions under this Division, give to any other person, whether directly or indirectly, any information acquired by the inspector in carrying out those functions. Penalty: 25 penalty units. (2) Sub-section (1) does not apply to the giving of information— (a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or s. 40 -- 52 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 47 (d) to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or (e) to any client of the estate agent, if the information is a report of the result of the carrying out of any function of an inspector under this Division if and only to the extent that it directly concerns that client; or (f) with the written authority of the Director; or (g) with the written authority of the person to whom the information relates.". 41. New section 93A inserted After section 93 of the Estate Agents Act 1980 insert— "93A. Application of Fair Trading Act 1999 (1) Sections 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Division 2 of Part VI and section 93); or s. 41 -- 53 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 48 (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Division 2 of Part VI and section 93); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". 42. Offences For section 94(2) of the Estate Agents Act 1980 substitute— "(2) A person who is guilty of an offence against this Act for which no penalty is expressly provided is liable to a penalty of not more than 25 penalty units.". 43. Prosecutions For section 95(1) of the Estate Agents Act 1980 substitute— "(1) Proceedings for an offence against this Act or the regulations may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section. (1A) In proceedings for an offence against this Act or the regulations it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (1B) Sub-section (1) does not apply to proceedings for an indictable offence.". s. 42 -- 54 of 98 -- Victorian Legislation and Parliamentary Documents Part 5—Amendments to Estate Agents Act 1980 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 49 44. Corporations Section 96(2) of the Estate Agents Act 1980 is repealed. __________________ s. 44 -- 55 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 50 PART 6—AMENDMENTS TO FUNDRAISING APPEALS ACT 1998 45. New heading in Part 5 After the heading to Part 5 of the Fundraising Appeals Act 1998 insert— "Division 1—General Enforcement Provisions". 46. New Division 2 inserted in Part 5 At the end of Part 5 of the Fundraising Appeals Act 1998 insert— 'Division 2—Infringement Notices 61C. Definition In this Division— "authorised officer" means— (a) an inspector; (b) a member of the police force; (c) a person authorised in writing by the Director. 61D. Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against a provision of this Act that is specified in the Schedule. (2) An infringement notice may be served on a person— (a) by delivering it personally to the person; or See: Act No. 78/1998. Reprint No. 1 as at 1 January 2002 and amending Act Nos 23/2002, 30/2003 and 114/2003. LawToday: www.dms. dpc.vic. gov.au s. 45 -- 56 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 51 (b) by sending it by post addressed to the person at the person's last known place of residence or business. 61E. Form of notice An infringement notice must be in a form approved by the Director and must set out— (a) the date of the notice; (b) the provision of this Act that creates the offence; (c) the date, time and place of the alleged offence; (d) the nature and a brief description of the alleged offence; (e) the infringement penalty for the alleged offence set out in the regulations; (f) the manner in which the infringement penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; (h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court; (j) any other prescribed particulars. s. 46 -- 57 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 52 61F. Late payment of penalty An authorised officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and (b) the infringement notice has not been withdrawn. 61G. Withdrawal of notice (1) A member of the police force may withdraw an infringement notice issued by a member of the police force under this Division within 28 days after it was served. (2) The Director may withdraw an infringement notice issued by any other authorised officer under this Division within 28 days after it was served. (3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement notice was served. (4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must be refunded on the notice being withdrawn, and the Consolidated Fund is, to the necessary extent, appropriated accordingly. s. 46 -- 58 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 53 (5) Proceedings for the offence in respect of which the infringement notice has been served may still be taken or continued despite the withdrawal of the notice. 61H. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time specified in the notice or payment is accepted in accordance with section 61F, then— (a) the person on whom the notice was served has expiated the offence by that payment; and (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for the offence. 61I. Application of penalty (1) An infringement penalty paid under this Division must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Division is not and must not be taken to be— (a) an admission of guilt in relation to the offence; or s. 46 -- 59 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 54 (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. (3) The payment of an infringement penalty under this Division must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 61J. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment specified in the notice or in accordance with section 61F; or (b) the notice is withdrawn. 61K. Enforcement of infringement penalty Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement notice is an infringement notice within the meaning of Schedule 7 to that Act; and (b) the infringement penalty has not been paid within the time specified in the notice or in accordance with section 61F; and s. 46 -- 60 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 55 (c) the notice has not been withdrawn; and (d) a charge has not been filed in accordance with section 61J.'. 47. New section 68 substituted For section 68 of the Fundraising Appeals Act 1998 substitute— "68. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C and 153) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Part 5); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Part 5); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". s. 47 -- 61 of 98 -- Victorian Legislation and Parliamentary Documents Part 6—Amendments to Fundraising Appeals Act 1998 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 56 48. New Schedule inserted After Part 7 of the Fundraising Appeals Act 1998 insert— "SCHEDULE INFRINGEMENT OFFENCES Section 9(1) Section 29(8) Section 14(2) Section 29(9) Section 14(3) Section 31(1) Section 24D(2) Section 31(2) Section 29(3) Section 32(2) Section 29(4) Section 33(4) Section 29(5) __________________". __________________ s. 48 -- 62 of 98 -- Victorian Legislation and Parliamentary Documents Part 7—Amendments to Funerals (Pre-Paid Money) Act 1993 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 57 PART 7—AMENDMENTS TO FUNERALS (PRE-PAID MONEY) ACT 1993 49. Repeal of section 16 Section 16 of the Funerals (Pre-Paid Money) Act 1993 is repealed. 50. Application of provisions of Fair Trading Act 1999 At the end of section 17A of the Funerals (Pre-Paid Money) Act 1993 insert— "(2) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (3) For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except an offence applied by sub-section (1)); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by sub-section (1)); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (2)).". See: Act No. 33/1993. Reprint No. 1 as at 17 May 2000 and amending Act Nos 17/2001 and 44/2001. LawToday: www.dms. dpc.vic. gov.au s. 49 -- 63 of 98 -- Victorian Legislation and Parliamentary Documents Part 7—Amendments to Funerals (Pre-Paid Money) Act 1993 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 58 51. New section 18 substituted For section 18 of the Funerals (Pre-Paid Money) Act 1993 substitute— "18. Who may bring proceedings for an offence? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Sub-section (1) does not apply to proceedings for an indictable offence.". __________________ s. 51 -- 64 of 98 -- Victorian Legislation and Parliamentary Documents Part 8—Amendments to Introduction Agents Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 59 PART 8—AMENDMENTS TO INTRODUCTION AGENTS ACT 1997 52. Repeal of section 64 Section 64 of the Introduction Agents Act 1997 is repealed. 53. New section 69 substituted For section 69 of the Introduction Agents Act 1997 substitute— "69. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Division 1 of Part 6); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Division 1 of Part 6); or See: Act No. 75/1997. Reprint No. 2 as at 10 February 2000 and amending Act No 44/2001. LawToday: www.dms. dpc.vic. gov.au s. 52 -- 65 of 98 -- Victorian Legislation and Parliamentary Documents Part 8—Amendments to Introduction Agents Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 60 (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". 54. Repeal of section 71 Section 71 of the Introduction Agents Act 1997 is repealed. __________________ s. 54 -- 66 of 98 -- Victorian Legislation and Parliamentary Documents Part 9—Amendments to Motor Car Traders Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 61 PART 9—AMENDMENTS TO MOTOR CAR TRADERS ACT 1986 55. Repeal of section 33A Section 33A of the Motor Car Traders Act 1986 is repealed. 56. Embargo notice In section 82AM(1) of the Motor Car Traders Act 1986 omit "or section 124". 57. New section 82CA inserted After section 82C of the Motor Car Traders Act 1986 insert— "82CA. Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section; or (c) a member of the police force. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Sub-section (1) does not apply to proceedings for an indictable offence.". See: Act No. 104/1986. Reprint No. 5 as at 10 December 2003. LawToday: www.dms. dpc.vic. gov.au s. 55 -- 67 of 98 -- Victorian Legislation and Parliamentary Documents Part 9—Amendments to Motor Car Traders Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 62 58. New Division 3 inserted in Part 5A After Division 2 of Part 5A of the Motor Car Traders Act 1986 insert— "Division 3—Application of Fair Trading Act 1999 82I. Application of Fair Trading Act 1999 (1) Sections 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Division 1); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Division 1); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". s. 58 -- 68 of 98 -- Victorian Legislation and Parliamentary Documents Part 9—Amendments to Motor Car Traders Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 63 59. Corporations Sections 85(2) and 85(3) of the Motor Car Traders Act 1986 are repealed. __________________ s. 59 -- 69 of 98 -- Victorian Legislation and Parliamentary Documents Part 10—Amendments to Prostitution Control Act 1994 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 64 PART 10—AMENDMENTS TO PROSTITUTION CONTROL ACT 1994 60. Embargo notice In section 61P(1) of the Prostitution Control Act 1994 omit "or section 124". 61. New sections 86 and 86A inserted For section 86 of the Prostitution Control Act 1994 substitute— "86. Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section; or (c) a member of the police force. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Sub-section (1) does not apply to proceedings for an indictable offence. 86A. Application of Fair Trading Act 1986 (1) Sections 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. See: Act No. 102/1994. Reprint No. 5 as at 20 September 2001 and amending Act Nos 52/2003 and 16/2004. LawToday: www.dms. dpc.vic. gov.au s. 60 -- 70 of 98 -- Victorian Legislation and Parliamentary Documents Part 10—Amendments to Prostitution Control Act 1994 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 65 (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Division 8A of Part 3); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Division 8A of Part 3); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". __________________ s. 61 -- 71 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 66 PART 11—AMENDMENTS TO RESIDENTIAL TENANCIES ACT 1997 62. Repeal of section 500 Section 500 of the Residential Tenancies Act 1997 is repealed. 63. Application of Fair Trading Act 1999 At the end of section 507A of the Residential Tenancies Act 1997 insert— "(2) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act (except Part 14) as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act (except Part 14). (3) For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Part 14 and an offence applied by sub- section (1)); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except Part 14 and an offence applied by sub- section (1)); or See: Act No. 109/1997. Reprint No. 3 as at 1 July 2003 and amending Act No. 93/2003. LawToday: www.dms. dpc.vic. gov.au s. 62 -- 72 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 67 (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (2)).". 64. Proceedings for offences For section 508(1) of the Residential Tenancies Act 1997 substitute— "(1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section; or (c) a member of the police force. (1A) Sub-section (1) does not apply to proceedings for an indictable offence or proceedings under Part 14.". 65. New Division 2A inserted in Part 13 After Division 2 of Part 13 of the Residential Tenancies Act 1997 insert— 'Division 2A—Infringement Notices 510B. Definitions In this Division— "authorised officer" means— (a) an inspector appointed under the Fair Trading Act 1999; (b) a member of the police force; (c) a person authorised in writing by the Director. s. 64 -- 73 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 68 510C. Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against a provision of this Act specified in Schedule 2. (2) An infringement notice may be served on a person— (a) by delivering it personally to the person; or (b) by sending it by post addressed to the person at the person's last known place of residence or business. 510D. Form of notice An infringement notice must be in a form approved by the Director and must set out— (a) the date of the notice; (b) the provision of this Act that creates the offence; (c) the date, time and place of the alleged offence; (d) the nature and a brief description of the alleged offence; (e) the infringement penalty for the alleged offence set out in the regulations; (f) the manner in which the infringement penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; s. 65 -- 74 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 69 (h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court; (j) any other prescribed particulars. 510E. Late payment of penalty An authorised officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and (b) the infringement notice has not been withdrawn. 510F. Withdrawal of notice (1) A member of the police force may withdraw an infringement notice issued by a member of the police force under this Division within 28 days after it was served. s. 65 -- 75 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 70 (2) The Director may withdraw an infringement notice issued by any other authorised officer under this Division within 28 days after it was served. (3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement notice was served. (4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must be refunded from the Residential Tenancies Fund on the notice being withdrawn. (5) Proceedings for the offence in respect of which the infringement notice has been served may still be taken or continued despite the withdrawal of the notice. 510G. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time specified in the notice or payment is accepted in accordance with section 510E, then— (a) the person on whom the notice was served has expiated the offence by that payment; and (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for the offence. s. 65 -- 76 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 71 510H. Application of penalty (1) An infringement penalty paid under this Division must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Division is not and must not be taken to be— (a) an admission of guilt in relation to the offence; or (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. (3) The payment of an infringement penalty under this Division must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 510I. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment specified in the notice or in accordance with section 510E; or (b) the notice is withdrawn. s. 65 -- 77 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 72 510J. Enforcement of infringement penalty Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement notice is an infringement notice within the meaning of Schedule 7 to that Act; and (b) the infringement penalty has not been paid within the time specified in the notice or in accordance with section 510E; and (c) the notice has not been withdrawn; and (d) a charge has not been filed in accordance with section 510I.'. 66. Repeal of section 533 Section 533 of the Residential Tenancies Act 1997 is repealed. 67. New Schedule 2 substituted For Schedule 2 to the Residential Tenancies Act 1997 substitute— "SCHEDULE 2 INFRINGEMENT OFFENCES Section 26(2) Section 43(2A) Section 29(1) Section 49 Section 29(2) Section 51(1) Section 34 Section 51(2) Section 35(1) Section 51(3) Section 41 Section 56 Section 43(1) Section 66(1) Section 43(2) Section 66(2) s. 66 -- 78 of 98 -- Victorian Legislation and Parliamentary Documents Part 11—Amendments to Residential Tenancies Act 1997 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 73 Section 66(3) Section 184(1) Section 66(4) Section 184(2) Section 96 Section 184(3) Section 97(1) Section 186(1) Section 99 Section 198(1) Section 100(1) Section 198(2) Section 100(2) Section 264 Section 100(2A) Section 287 Section 107 Section 295 Section 124 Section 298(1) Section 125(1) Section 298(2) Section 125(2) Section 358(1) Section 125(3) Section 358(2) Section 127(1) Section 369 Section 145 Section 372 Section 146(3) Section 373 Section 147 Section 377(1) Section 148(1) Section 377(2) Section 150(1) Section 377(3) Section 150(2) Section 382(2) Section 151(1) Section 405(1) Section 151(2) Section 405(4) Section 151(2A) Section 406 Section 160 Section 424(1) Section 166 Section 424(3) Section 182 Section 425 Section 183(1) Section 428 Section 183(2) __________________". __________________ s. 67 -- 79 of 98 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Sale of Land Act 1962 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 74 PART 12—AMENDMENTS TO SALE OF LAND ACT 1962 68. Offences Sections 16(2) and 16(3) of the Sale of Land Act 1962 are repealed. 69. Statement In section 32(2)(e) of the Sale of Land Act 1962, for "order" (where first occurring) substitute "order,". 70. Vendor bids (1) After section 38(5) of the Sale of Land Act 1962 insert— '(6) Sub-sections (1) and (2) do not apply to a bid made by a vendor who is a co-owner of the land or by a person (other than the auctioneer of the land) on behalf of a vendor who is a co-owner of the land if— (a) the bid was made to enable the vendor to purchase the interest of another co- owner in the land; and (b) the conditions under which the auction is conducted permit the making of bids by a vendor to purchase the interest of another co-owner in the land; and (c) before any bidding started, the auctioneer orally declared at the auction that a vendor may make bids to purchase the interest of a co-owner in the land. (7) In sub-section (6), "co-owner" means a joint tenant, whether at law or in equity or a tenant in common, whether at law or in equity, of the land.'. See: Act No. 6975. Reprint No. 12 as at 1 February 2004 and amending Act No. 92/1990. LawToday: www.dms. dpc.vic. gov.au s. 68 -- 80 of 98 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Sale of Land Act 1962 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 75 (2) After section 39(2) of the Sale of Land Act 1962 insert— "(3) Sub-section (1) does not apply to a bid made in accordance with section 38(6).". (3) In section 41(1)(c) of the Sale of Land Act 1962 for "vendor." substitute "vendor; and". (4) After section 41(1)(c) of the Sale of Land Act 1962 insert— "(d) the bid is not made on behalf of a vendor who is a co-owner to enable the vendor to purchase the interest of a co-owner in the land.". 71. New Part IIA inserted After Part II of the Sale of Land Act 1962 insert— "PART IIA—ENFORCEMENT 48A. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act; or s. 71 -- 81 of 98 -- Victorian Legislation and Parliamentary Documents Part 12—Amendments to Sale of Land Act 1962 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 76 (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act; or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". __________________ s. 71 -- 82 of 98 -- Victorian Legislation and Parliamentary Documents PArt 13—Amendments to Second-Hand Dealers and Pawnbrokers Act 1989 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 77 PART 13—AMENDMENTS TO SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989 72. New section 28E inserted After section 28D of the Second-Hand Dealers and Pawnbrokers Act 1989 insert— "28E. Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or (b) a person authorised by the Director for the purposes of this section; or (c) a member of the police force. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Sub-section (1) does not apply to proceedings for an indictable offence.". 73. New section 30 substituted For section 30 of the Second-Hand Dealers and Pawnbrokers Act 1989 substitute— "30. Application of Fair Trading Act 1999 (1) Sections 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. See: Act No. 54/1989. Reprint No. 5 as at 1 January 2003 and amending Act Nos 106/2003 and 10/2004. LawToday: www.dms. dpc.vic. gov.au s. 72 -- 83 of 98 -- Victorian Legislation and Parliamentary Documents PArt 13—Amendments to Second-Hand Dealers and Pawnbrokers Act 1989 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 78 (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Divisions 1 and 2 of Part 5 and section 28A(2)); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Divisions 1 and 2 of Part 5 and section 28A(2)); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". __________________ s. 73 -- 84 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 79 PART 14—AMENDMENTS TO TRAVEL AGENTS ACT 1986 74. Exemptions In section 5(1) of the Travel Agents Act 1986 after "declare that" insert "any or all of". 75. Embargo notice In section 39O(1) of the Travel Agents Act 1986 omit "or section 124". 76. New Part 3B inserted After Part 3A of the Travel Agents Act 1986 insert— 'PART 3B—INFRINGEMENT NOTICES 39ZB. Definition In this Part— "authorised officer" means— (a) an inspector; (b) a member of the police force; (c) a person authorised in writing by the Director. 39ZC. Power to serve a notice (1) An authorised officer may serve an infringement notice on any person that he or she has reason to believe has committed an offence against a provision of this Act specified in the Schedule. (2) An infringement notice may be served on a person— (a) by delivering it personally to the person; or See: Act No. 52/1986. Reprint No. 3 as at 1 September 1999 and amending Act Nos 35/2000, 44/2001, 8/2003, 78/2003, 106/2003 and 17/2004. LawToday: www.dms. dpc.vic. gov.au s. 74 -- 85 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 80 (b) by sending it by post addressed to the person at the person's last known place of residence or business. 39ZD. Form of notice An infringement notice must be in a form approved by the Director and must set out— (a) the date of the notice; (b) the provision of this Act that creates the offence; (c) the date, time and place of the alleged offence; (d) the nature and a brief description of the alleged offence; (e) the infringement penalty for the alleged offence set out in the regulations; (f) the manner in which the infringement penalty may be paid; (g) the time (not being less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid; (h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served; (i) that the person is entitled to disregard the notice and defend any proceedings in respect of the alleged offence in the Magistrates' Court; (j) any other prescribed particulars. s. 76 -- 86 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 81 39ZE. Late payment of penalty An authorised officer may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if— (a) neither a charge has been filed nor a courtesy letter served under Part 2 of Schedule 7 to the Magistrates' Court Act 1989 in respect of the offence to which the infringement penalty relates; and (b) the infringement notice has not been withdrawn. 39ZF. Withdrawal of notice (1) A member of the police force may withdraw an infringement notice issued by a member of the police force under this Part within 28 days after it was served. (2) The Director may withdraw an infringement notice issued by any other authorised officer under this Part within 28 days after it was served. (3) The withdrawal of an infringement notice is to be effected by serving a withdrawal notice on the person on whom the infringement notice was served. (4) If the penalty sought in the infringement notice has been paid before the notice is withdrawn, the amount of the penalty must be refunded on the notice being withdrawn, and the Consolidated Fund is, to the necessary extent, appropriated accordingly. s. 76 -- 87 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 82 (5) Proceedings for the offence in respect of which the infringement notice has been served may still be taken or continued despite the withdrawal of the notice. 39ZG. Payment expiates offence If an infringement notice is not withdrawn and the infringement penalty is paid within the time specified in the notice or payment is accepted in accordance with section 39ZE, then— (a) the person on whom the notice was served has expiated the offence by that payment; and (b) no proceedings may be taken against that person in respect of that offence; and (c) no conviction is to be taken to have been recorded against that person for the offence. 39ZH. Application of penalty (1) An infringement penalty paid under this Part must be applied in the same way as a fine paid under an order of a court made on an offender being convicted or found guilty of the offence to which the infringement penalty relates. (2) The payment of an infringement penalty under this Part is not and must not be taken to be— (a) an admission of guilt in relation to the offence; or s. 76 -- 88 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 83 (b) an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence, and the payment does not in any way affect or prejudice any such claim or proceeding. (3) The payment of an infringement penalty under this Part must not be referred to in any report provided to a court for the purpose of determining sentence for any offence. 39ZI. Prosecution after service of infringement notice A charge may be filed in respect of an offence to which an infringement notice relates if— (a) the infringement penalty has not been paid within the time for payment specified in the notice or in accordance with section 39ZE; or (b) the notice is withdrawn. 39ZJ. Enforcement of infringement penalty Payment of the infringement penalty may be enforced in accordance with Part 2 of Schedule 7 to the Magistrates' Court Act 1989 if— (a) the infringement notice is an infringement notice within the meaning of Schedule 7 to that Act; and (b) the infringement penalty has not been paid within the time specified in the notice or in accordance with section 39ZE; and (c) the notice has not been withdrawn; and (d) a charge has not been filed in accordance with section 39ZI.'. s. 76 -- 89 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 84 77. New sections 44 and 45 substituted For sections 44 and 45 of the Travel Agents Act 1986 substitute— "44. Application of Fair Trading Act 1999 (1) Sections 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Part 3A); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Part 3A); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)). 45. Who may bring proceedings for offences? (1) Proceedings for an offence against this Act may only be brought by— (a) the Director; or s. 77 -- 90 of 98 -- Victorian Legislation and Parliamentary Documents Part 14—Amendments to Travel Agents Act 1986 Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 85 (b) a person authorised by the Director for the purposes of this section; or (c) a member of the police force. (2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings. (3) Sub-section (1) does not apply to proceedings for an indictable offence.". 78. New Schedule inserted After Part 4 of the Travel Agents Act 1986 insert— "SCHEDULE INFRINGEMENT OFFENCES Section 8(5) Section 21(3) Section 11A(2) Section 24 Section 12(2) Section 30 Section 14(1) Section 31 Section 17(11) Section 32(1) Section 18 Section 41(1) Section 18A(3) Section 41(3) __________________". __________________ s. 78 -- 91 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 86 PART 15—AMENDMENTS TO OTHER ACTS 79. Amendment to Associations Incorporation Act 1981—New section 50C inserted After section 50B of the Associations Incorporation Act 1981 insert— "50C. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except Part VIIIA); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except Part VIIIA); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". See: Act No. 9713. Reprint No. 6 as at 1 November 2003. LawToday: www.dms. dpc.vic. gov.au s. 79 -- 92 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 87 80. Amendment to Business Names Act 1962—New section 29 substituted For section 29 of the Business Names Act 1962 substitute— "29. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except section 13); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except section 13); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". See: Act No. 6853. Reprint No. 6 as at 1 November 2003. LawToday: www.dms. dpc.vic. gov.au s. 80 -- 93 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 88 81. Amendments to Domestic Building Contracts Act 1995 (1) At the end of section 124A of the Domestic Building Contracts Act 1995 insert— "(2) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (3) For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except an offence applied by sub-section (1)); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by sub-section (1)); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (2)).". (2) Section 129 of the Domestic Building Contracts Act 1995 is repealed. See: Act No. 91/1995. Reprint No. 5 as at 1 July 2002 and amending Act Nos 30/2003, 35/2004 and 37/2004. LawToday: www.dms. dpc.vic. gov.au s. 81 -- 94 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 89 82. Amendment to Petroleum Products (Terminal Gate Pricing) Act 2000 (1) At the end of section 11 of the Petroleum Products (Terminal Gate Pricing) Act 2000 insert— "(2) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. (3) For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except an offence applied by sub-section (1)); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by sub-section (1)); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (2)).". (2) Section 12 of the Petroleum Products (Terminal Gate Pricing) Act 2000 is repealed. See: Act No. 71/2000. LawToday: www.dms. dpc.vic. gov.au s. 82 -- 95 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 90 83. Amendment to Trustee Companies Act 1984 In Schedule 2 to the Trustee Companies Act 1984— (a) for "Austrust Ltd" substitute "Tower Trust Limited"; (b) for "The Equity Trustees Executors and Agency Company Limited" substitute "Equity Trustees Limited"; (c) for "Executor Trustee Australia Ltd" substitute "Executor Trustee Australia Limited"; (d) for "IOOF Australia Trustee Ltd" substitute "Tower Trust (SA) Limited"; (e) for "National Australia Trustees Limited" substitute "National Australia Trustees Ltd"; (f) for "National Mutual Trustees Limited" substitute "Perpetual Trustees Consolidated Limited"; (g) for "Perpetual Trustees Victoria Ltd" substitute "Perpetual Trustees Victoria Limited". 84. Amendment to Utility Meters (Metrological Controls) Act 2002 For sections 63 and 64 of the Utility Meters (Metrological Controls) Act 2002 substitute— "63. Application of Fair Trading Act 1999 (1) Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act. See: Act No. 10168. Reprint No. 4 as at 20 September 2001 and amending Act No. 9/2002. LawToday: www.dms. dpc.vic. gov.au s. 83 See: Act No. 48/2002. LawToday: www.dms. dpc.vic. gov.au -- 96 of 98 -- Victorian Legislation and Parliamentary Documents Part 15—Amendments to Other Acts Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 91 (2) For the purposes of sub-section (1), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to— (a) proceedings for an offence against a provision of this Act (except section 47); or (b) proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (1)) against a person alleged to have contravened a provision of this Act (except section 47); or (c) proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub- section (1)).". ═══════════════ s. 84 -- 97 of 98 -- Victorian Legislation and Parliamentary Documents Fair Trading (Enhanced Compliance) Act 2004 Act No. 103/2004 92 ENDNOTES † Minister's second reading speech— Legislative Assembly: 11 November 2004 Legislative Council: 7 December 2004 The long title for the Bill for this Act was "to amend the Fair Trading Act 1999 to enhance compliance with that Act, to amend the Co- operatives Act 1996, the Credit (Administration) Act 1984, the Estate Agents Act 1980, the Fundraising Appeals Act 1998, the Funerals (Pre-Paid Money) Act 1993, the Introduction Agents Act 1997, the Motor Car Traders Act 1986, the Prostitution Control Act 1994, the Residential Tenancies Act 1997, the Sale of Land Act 1962, the Second-Hand Dealers and Pawnbrokers Act 1989, the Travel Agents Act 1986, the Trustee Companies Act 1984 and other Acts and for other purposes." Endnotes -- 98 of 98 --