Australian Consumer Law and Fair Trading Bill 2011

Amended Print

EXPLANATORY MEMORANDUM

Clause Notes

CHAPTER 1—PRELIMINARY

Clause 1 sets out the purposes of the Bill. These are—

to promote and encourage fair trading practices and a competitive and fair market;

to protect consumers;

to regulate trade practices;

to provide for codes of practice;

to provide for the powers and functions of the Director of Consumer Affairs Victoria including powers to conciliate disputes under the Bill and powers to carry out investigations into alleged breaches of the Bill;

to promote uniformity with the consumer laws of other jurisdictions through the interpretation and application of the Australian Consumer Law in Victoria consistently with those laws;

to regulate certain businesses;

to repeal and re-enact with amendments the Fair Trading Act 1999;

to repeal the Disposal of Uncollected Goods Act 1961, the Carriers and Innkeepers Act 1958 and the Landlord and Tenant Act 1958; and

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to amend the Credit (Administration) Act 1984 to close the Consumer Credit Fund and transfer any funds to the Victorian Consumer Law Fund.

Clause 2 provides for the commencement of the Bill. The Bill will come into operation on a day or days to be proclaimed, however, if any provision of the Bill has not come into operation before 1 December 2012, it will come into operation on that day.

A default date of 1 December 2012 has been specified in order to allow sufficient time for any amendments affecting the enforcement of the Bill in Victoria to be fully implemented.

Clause 3 defines key terms used in the Bill.

This clause also provides that unless the contrary intention appears, expressions used in the Bill have the same meaning as they have in the Australian Consumer Law (Victoria).

Clause 4 provides that the Bill binds the Crown not only in the right of Victoria but also, so far as Parliament's legislative powers permit, the Crown in all its other capacities. However, this is subject to clause 19, which makes it clear that in applying the Australian Consumer Law to the Crown, the Crown is not liable to pay any pecuniary penalty or to be prosecuted for a criminal offence under the Bill.

Clause 5 clarifies the extra-territorial application of the Bill.

Clause 5 ensures that investigative, compliance and enforcement activities under the Australian Consumer Law and the Bill can be pursued in Victoria when there is an appropriate connection with that jurisdiction. It provides that the Bill applies to—

the engaging in conduct in Victoria by persons outside of Victoria;

the engaging in conduct outside of Victoria by persons in Victoria;

a supply of goods or services where the contract is made in Victoria; and

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to a supply of goods or services to a person normally resident in Victoria or a body corporate whose principal place of business is in Victoria where the contract is made outside Victoria.

CHAPTER 2—THE AUSTRALIAN CONSUMER LAW

Chapter 2 of the Bill applies the Australian Consumer Law comprising of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth as in force from time to time and regulations made under section 139G of that Act as a law of Victoria. This Chapter re-enacts Part 2 of the Fair Trading Act 1999.

PART 2.1—DEFINITIONS

Clause 6 defines key terms used in this Chapter.

Subclause (2) provides that, expressions used in this Chapter have the same meaning as they have in the Australian Consumer Law (Victoria).

Subclause (3) provides that for the purposes of this Chapter, a jurisdiction is taken to have applied the Australian Consumer Law if a law of that jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text.

PART 2.2—APPLICATION OF AUSTRALIAN CONSUMER LAW

Clause 7 provides that the Australian Consumer Law text consists of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth and the regulations made under section 139G of that Act.

Clause 8 provides that the Australian Consumer Law text, as in force from time to time, applies as a law of Victoria and may be referred to as the Australian Consumer Law (Victoria). This clause also provides that the Australian Consumer Law, as applying in Victoria, is part of the Bill. This ensures that the administration and enforcement powers in the Bill which are expressed to apply in relation to "this Act" or contraventions of "this Act" apply and may be utilised for the purposes of the Australian Consumer Law unless otherwise provided.

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This clause is subject to clauses 9, 10 and 11 of the Bill. Clause 9 provides for future modifications of the Australian Consumer Law, clause 10 provides for the meaning of generic terms in the Australian Consumer Law, and clause 11 provides for the interpretation of the Australian Consumer Law.

The Australian Consumer Law contains offence provisions in Chapter 4. These offence provisions are similar to offence provisions that existed in the Fair Trading Act 1999 before the commencement of the Australian Consumer Law. The maximum penalty levels under the Australian Consumer Law generally reflect the higher penalty levels that were available under the Trade Practices Act 1974 of the Commonwealth for serious breaches.

Chapters 13, 14 and 15 of the Explanatory Memorandum for the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 of the Commonwealth further describe the intended operation of the Australian Consumer Law offence provisions. Chapter 14 describes the relationship between the proposed uniform national offence provisions of the Australian Consumer Law and recommendations contained in the Productivity Commission's 2008 Review of Australia's Consumer Policy Framework. The Explanatory Memorandum to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 of the Commonwealth noted the Productivity Commission's observation that some enforcement tools have not been available to all regulators and that this can restrict their ability to adopt regulatory responses that are tailored to the severity of breaches of the relevant laws.

The Australian Consumer Law provisions encompass the following categories—

contraventions with a maximum pecuniary penalty of up to $1000 (natural persons) or $5000 (bodies corporate). This category applies to multiple pricing (sections 44(2) and 165(1) of the Australian Consumer Law);

contraventions with a maximum pecuniary penalty of up to $3000 (natural persons) or $15 000 (bodies corporate). This category applies to conduct including a failure to give an itemised bill on request (section 101(3) of the Australian Consumer Law);

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contraventions with a maximum pecuniary penalty of up to $6000 (natural persons) or $30 000 (bodies corporate). This category applies to conduct including that relating to lay-by agreements (for example, an agreement that requires a termination charge for the lay-by agreement, section 97(2) and 189(1) of the Australian Consumer Law);

contraventions with a maximum pecuniary penalty of up to $10 000 (natural persons) or $50 000 (bodies corporate). This category includes calling on a person in relation to an unsolicited consumer agreement outside of permitted hours (section 73(1) and 170(1) of the Australian Consumer Law), failing to leave on request when making an unsolicited call (sections 75(1) and 172(1) of the Australian Consumer Law) and failing to advise a consumer of the cooling off period (sections 76 and 173(1) of the Australian Consumer Law); and

contraventions with a maximum pecuniary penalty of up to $220 000 (natural persons) or $1 100 000 (bodies corporate). This category is reserved for serious offences related to supplying goods that are non-compliant with a safety standard (sections 106(1) and 194(1) of the Australian Consumer Law), supplying goods subject to an interim or permanent ban (sections 118(1) and 197(1) of the Australian Consumer Law), bait advertising (sections 35(2) and 157(2) of the Australian Consumer Law), unconscionable conduct within the meaning of the unwritten law (section 20(1) of the Australian Consumer Law), false or misleading representations about goods or services (sections 29(1) and 151(1) of the Australian Consumer Law) and misleading conduct as to the nature of goods (sections 33(1) and 155(1) of the Australian Consumer Law).

Most of the provisions in Chapters 2 and 3 have an equivalent criminal offence provision in Chapter 4 of the Australian Consumer Law, and will attract equivalent criminal penalties. Some notable exclusions are misleading or deceptive conduct (section 18), the consumer guarantee provisions in Division 1 of Part 3-2 and a failure to provide an itemised bill or receipt (sections 100 and 101).

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Clause 9 provides for the Governor in Council to declare by order that any future modification to the Australian Consumer Law made by a Commonwealth law does not apply as a law of Victoria. The declaration has effect only if published within 2 months of the date of the modification. A subsequent order may provide that the declaration ceases to apply to the modification.

Clause 10 defines the generic terms used in the Australian Consumer Law.

Subclause (1) defines regulator for the purposes of the Australia Consumer Law (Victoria) to mean the Director of Consumer Affairs Victoria.

Subclause (2) provides that, for the purposes of the application of the Australian Consumer Law (Victoria), the expression court has the meaning given by clause 223 of the Bill.

Clause 11 applies the Act Interpretation Act 1901 of the Commonwealth as a law of Victoria for the purposes of interpreting the Australian Consumer Law (Victoria) and states that the Interpretation of Legislation Act 1984 does not apply to the Australian Consumer Law (Victoria) and instruments made under that law. This provision is included to ensure consistent interpretation of the Australian Consumer Law in each jurisdiction across Australia.

Clause 12 confirms the application of the Australian Consumer Law of Victoria. This clause operates in conjunction with clause 5, which deals more specifically with the question of the extra-territorial application of the Bill and the Australian Consumer Law (Victoria).

PART 2.3—REFERENCES TO AUSTRALIAN CONSUMER LAW

Clause 13 provides that unless the contrary intention appears or the context otherwise requires, a reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any participating jurisdiction. The expressions "instrument" and "participating jurisdiction" are defined in clause 3.

Clause 14 provides for references to the Australian Consumer Law of another jurisdiction.

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PART 2.4—APPLICATION OF AUSTRALIAN CONSUMER LAW TO CROWN

Clause 15 confirms that this Part does not apply to the Commonwealth.

Clause 16 provides that the application law of Victoria as defined in clause 3 of the Bill binds the Crown in right of Victoria and of each other jurisdiction in so far as the Crown carries on business either directly or by the authority of the relevant jurisdiction.

Clause 17 provides that the application law of another jurisdiction binds the Crown in right of Victoria in so far as the Crown carries on business either directly or by the authority of the Crown in right of Victoria.

Subclause (2) provides that if, because of this Chapter, a provision of the law of another jurisdiction binds the Crown in right of Victoria, the Crown in that right is subject to the law despite any prerogative right or privilege.

Clause 18 provides that certain activities carried on by the Crown are not to be regarded as carrying on a business for the purposes of clauses 16 and 17.

Clause 19 provides that nothing in the application law of either Victoria, or any participating jurisdiction makes the Crown, in any capacity, liable to a pecuniary penalty or to be prosecuted for an offence.

PART 2.5—MISCELLANEOUS

Clause 20 provides that authorities and officers of the Commonwealth, who have certain powers under the Australian Consumer Law, have those functions and powers with respect to the Australian Consumer Law (Victoria). It provides that those authorities and officers also have the power to do all things necessary and convenient to be done in connection with the performance of those functions and exercise of those powers.

Additionally, this clause clarifies, for the avoidance of doubt, that the Commonwealth Minister, who has functions and powers conferred on him or her under the Australian Consumer Law (Victoria) as a result of clause 8 of the Bill, is not a public

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authority for the purposes of section 38 of the Charter of Human Rights and Responsibilities Act 2006.

Clause 21 provides that where an act or omission is an offence against the Australian Consumer Law (Victoria), and is also an offence against the Australian Consumer Law of another participating jurisdiction, an offender is not liable to be punished for the offence under the Australian Consumer Law (Victoria) if the offender has been punished under the Australian Consumer Law of another participating jurisdiction. Similarly, if a person has been ordered to pay a pecuniary penalty under the Australian Consumer Law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (Victoria) with respect to that same conduct.

CHAPTER 3—CONTRACTSChapter 3 of the Bill sets out the statutory conditions and warranties implied into contracts for the supply of consumer goods and services. This Chapter re-enacts Parts 2A and 2C of the Fair Trading Act 1999.

PART 3.1—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY

Division 1—Supply of goods or services

Clause 22 provides for limitation of liability in relation to the supply of recreational services.

Subclause (1) provides that a term of a contract of supply of recreational services is not void under section 64 of the Australian Consumer Law (Victoria) by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying—

the application of any or all of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) to the supply of the recreational services under the contract; or

the exercise of a right conferred by Subdivision B in relation to the supply of the recreational services under the contract; or

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any liability of the supplier for a failure to comply with a guarantee under Subdivision B in relation to the supply of the recreational services under the contract.

Section 64 of the Australian Consumer Law provides that a term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying—

the application of any of the consumer guarantees in Division 1 of Part 3-2; or

a person's ability to exercise a right conferred by such a provision;

a person's liability for a failure to comply with a consumer guarantee.

A term of a contract is not taken, for the purposes of section 64, to exclude, restrict or modify the application of a consumer guarantee unless the term does so expressly or is inconsistent with the consumer guarantee.

Subclause (2) provides that subclause (1) only applies if the contract for recreational services was entered into on or after 1 June 2004 and the exclusion, restriction or modification is limited to liability for death or personal injury. The contract term must be in the prescribed form and contain any prescribed particulars, unless exempted by an Order made under clause 23.

Subclause (3) provides that despite subclause (1) a person cannot rely on a contract term which complies with subclause (2) to limit liability if the person supplying the recreational services has done or omitted to do something with reckless disregard that, would but for subclause (1) be an act or omission to which Subdivision B would apply, or would give rise to a right or constitute a failure to comply with a guarantee applying under Subdivision B.

Subclause (4) defines key terms for the purpose of this clause.

Clause 23 provides for the Governor-in-Council, on the Minister's recommendation, to make an order exempting a term (or a class of term) of a contract of supply for recreational services from the requirements in clause 22(2)(c)(i). An Order made under

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this clause has effect according to its terms, may be subject to conditions and must be published in the Government Gazette. The Governor in Council, on the Minister's recommendation, may also vary or revoke any Order made under this clause. An Order made under this clause ceases to have effect on the expiry of the anniversary of the date that it was published in the Government Gazette or on an earlier date, if one is specified in the Order.

The Minister must ensure that a copy of any Order made under this clause is laid before each House of Parliament on or before the 6th sitting day after the Order is made. However, a failure to comply with this requirement will not affect the operation or effect of the Order, although the Scrutiny of Acts and Regulations Committee of Parliament may report the failure to each House.

Parliamentary disallowance applies to an Order made under this clause, as do the scrutiny suspension and disallowance provisions of the Subordinate Legislation Act 1994.

Clause 24 gives the purchaser a right to rescind a contract of supply of goods for innocent misrepresentation.

Clause 25 provides for the consequences of a discharge or rescission of a contract of supply of goods either under clause 24 or for a repudiation or breach of condition by the supplier, and also provides for the adjustment of the parties' rights.

Clause 26 sets out the circumstances when a discharge or rescission has effect and clarifies that the clause does not apply to a rejection of goods under the Australian Consumer Law.

Clause 27 provides for a purchaser to have certain rights of rescission and damages following antecedent negotiations.

Subclause (1) provides that where a representation is made to a purchaser in the course of antecedent negotiations by a dealer or person acting on behalf of the supplier, the purchaser shall have the same rights to rescind the contract and obtain damages against the supplier as they would have had if the representation has been made by an agent of the supplier acting with the supplier's authority. This clause also confers on the purchaser a right to damages against the person making the representation and against any other person on whose behalf the representation

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may have been made, as if the purchaser had bought the goods or services in question from those persons.

Subclause (2) provides that if a warranty is given to a purchaser by a dealer or person acting on behalf of the supplier, in the course of any antecedent negotiations, the purchaser has the same right of action in damages under that warranty against the person or the dealer.

Subclause (3) provides that it is immaterial to a purchaser's rights as to whether the goods or services supplied were purchased by the supplier from a dealer by whom or on whose behalf the antecedent negotiations were conducted.

Subclause (4) provides that nothing in this clause prevents a statement being both a representation and a warranty.

Subclause (5) provides that nothing in this clause entitles a purchaser to an amount of damages that exceeds the amount of loss suffered.

Clause 28 provides for the supplier's right to be indemnified for any damage suffered by the supplier under clause 27 arising from any representation or warranty made by a person conducting antecedent negotiations on the supplier's behalf, or by a dealer conducting antecedent negotiations on that person's behalf. The clause also provides for a dealer to be indemnified by a person for any damage arising by reason of the operation of clause 27.

Clause 29 provides that a contract of supply or a term in that contract that purports to exclude, restrict or modify the operation of clauses 27 or 28 is void.

Clause 29 also provides that a contract of supply or a term in that contract is void if that contract or term purports to preclude a right of action or a defence based on or arising out of a representation or a warranty referred to in clause 27(1) or (2).

Clause 30 provides that it is an offence attracting a maximum penalty of 60 penalty units for a natural person and 120 penalty units for a body corporate to include or permit to be included a provision in a contract that is void by reason of clause 29.

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Division 2—General

Clause 31 clarifies the interaction between the Goods Act 1958 and the Australian Consumer Law.

Subclause (1) provides that sections 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) applies.

Subclause (2) provides that section 4(2) of the Goods Act 1958 applies in relation to this Part and the Australian Consumer Law (Victoria).

Subclause (3) provides that a reference to a condition in Part I of the Goods Act 1958 includes a reference to a guarantee within the meaning of the Australian Consumer Law (Victoria).

Subclause (4) provides that nothing in Division 1 of Part 3.2 of the Australian Consumer Law (Victoria) affects the application of the Goods Act 1958 or any other Act or law to a contract of supply of goods or services except where the Australian Consumer Law (Victoria) expressly provides otherwise.

Clause 32 limits the liability of a guarantor charged with performing a purchaser's obligations under a contract of supply of goods or services.

Subclause (1) provides that the liability of a guarantor cannot exceed the amount for which the purchaser is liable and the reasonable costs of and incidental to enforcing the contact of guarantee.

Subclause (2) provides that, in the case where the purchaser is a minor, the guarantor is liable to the same extent as if the purchaser had not been a minor when the contact was made.

However, subclause (3) provides that subclause (2) does not apply unless the contact of guarantee includes a prominent statement stating that the guarantor may not have a right to recover from a purchaser, who is a minor, the amounts that the guarantor is liable to pay under the contact of supply.

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Subclause (4) defines key terms for the purpose of this clause, while subclause (5) further clarifies the meaning of domestic partner.

Clause 33 limits the liability of a person who provides a mortgage, charge, pledge or other security to secure the purchaser's obligations.

Clause 34 provides that a contact of supply is not illegal, void or unenforceable by reason only that the supplier is guilty of an offence under this Part. If a supplier commits an offence under this Part, the purchaser does not aid, abet, counsel or procure the commission of the offence simply by being a party to the contract.

PART 3.2—FRUSTRATED CONTRACTS

Division 1—Introductory

Clause 35 sets out the contracts to which this Part applies.

Subclause (1) provides that this Part applies to a contract where the parties are discharged from the further performance of the contract because performance becomes impossible, the contract is otherwise frustrated or the contract is avoided by section 12 of the Goods Act 1958 relating to the sale of perishable goods.

Subclause (2) provides that this Part applies to contracts made before or after 1 July 2008, if the time of discharge of the contract is after 29 September 1959.

Subclause (3) provides that this Part does not apply to any charter-party (with certain exceptions); contracts for the carriage of goods by sea and contracts of insurance except as provided for under clause 40.

Division 2—Consequences of frustrated contract

Clause 36 provides that all amounts paid to any party under a discharged contract before the discharge are recoverable; and that all amounts payable to any party under a discharged contract before the time of discharge cease to be payable.

Clause 37 provides that, despite clause 36, the court, if it considers it just to do so, may allow a party to a discharged contract to whom amounts were paid or are payable under the contract before it

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was discharged and who has incurred expenses as a result of the contract before it was discharged to retain or recover the whole or part of the amounts paid or payable.

Clause 38 provides that a party who obtained a valuable benefit from the performance of a contract before it was discharged may be liable to pay some or all of that benefit to the other party in certain circumstances.

Subclause (1) states that this clause applies if a party to a discharged contract obtained a valuable benefit (other than a payment of money to which clauses 36 or 37 apply) before the time of discharge because of anything done by another party in performance of the contract.

Subclause (2) states that despite clause 36 the benefited party is liable to pay to that other party any amount (not exceeding the value of the benefit) that the court considers just.

Subclause (3) provides a list of factors the court may have regard to in determining where the benefited party is liable to pay.

Subclause (4) provides that where a party to a contract assumes an obligation under the contract in consideration of the conferral of a benefit on any other person, the court may treat any benefit conferred on another person as a benefit obtained by the party who has assumed those obligations where it is just to do so.

Clause 39 sets out what the court may include in estimating the amount of any expenses incurred by a party to a discharged contract for the purposes of this Division.

Clause 40 provides that in considering whether an amount should be retained or recovered under a discharged contract, the court must not take into account any amounts payable under a contract of insurance which has been frustrated or avoided unless an obligation to insure is imposed by an express provision in the frustrated or avoided contract; or by or under any enactment.

Division 3—General

Clause 41 provides that where a contract contains a provision that, on the true construction of the contract, is intended to have or continue

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to have effect in circumstances where the contact is or would have otherwise been frustrated or avoided, the court must give effect to that provision, and must only give effect to Division 2 of this Part to the extent that it is consistent with the provision.

Clause 42 provides that if it appears to the court that any part of a contract is wholly completed before the time of discharge or completed except for payments of money, the court must treat that part of the contract as if it were a separate contract that has not been frustrated or avoided and Division 2 only applies to the remainder of the contract.

Clause 43 provides that all actions and proceedings to recover amounts under this Part are taken to be founded on simple contract.

Clause 44 provides that, subject to Part II of the Limitation of Actions Act 1958 the limitation period for a cause of action under this Part is taken to have first accrued at the time of discharge.

CHAPTER 4—GENERAL BUSINESS PROVISIONSChapter 4 of the Bill contains a series of general business provisions.

Part 4.1 of this Chapter regulates debt collection and re-enacts Part 5B of the Fair Trading Act 1999.

Part 4.2 of this Chapter provides a framework for uncollected goods under bailment.

Part 4.3 regulates the credit reporting agencies and re-enacts Part 5A of the Fair Trading Act 1999.

PART 4.1—DEBT COLLECTION

Clause 45 creates the offence of engaging in a prohibited debt collection practice. The section contains a list of prohibited debt collection practices derived from section 93M of the Fair Trading Act 1999.

Subclause (1) provides that a person must not in trade or commerce engage in a prohibited debt collection practice while collecting or attempting to collect a debt or repossessing or attempting to repossess a good. This offence attracts a minimum penalty of 1200 penalty units for a body corporate and 240 penalty units for a natural person.

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Subclause (2) defines what constitutes prohibited debt collection practices, and gives examples of conduct that falls into each category of prohibited collection practices.

Paragraph (a) prohibits a person using physical violence, undue harassment or coercion.

Paragraphs (b), (c) and (d) prohibit a person entering or threatening to enter a private residence without lawful authority, using any threat, deception or misrepresentation to obtain consent to enter a private residence, or refusing to leave a private residence or workplace when requested to do so.

Paragraphs (e) and (f) prohibit a person doing or threatening to do any act that may intimidate or expose to ridicule another person or a member of a family of that person.

Paragraph (g) prohibits a person using a document that is not an official document which resembles or purports to be an official document. Section 4(1) of the Unauthorised Documents Act 1958 creates a similar offence with respect to judicial process. Similar to the Unauthorised Documents Act 1958, it is not intended that any person be coerced or misled by the resemblance, merely that a document is used that conveys the impression it is an official document when it is not. This is to ensure that any person, regardless of their level of sophistication, can readily and easily distinguish between an officially issued document and a private demand for payment. Examples of documents that would contravene this subclause by resembling notices issued under the Infringements Act 2006 can be found in the case Corporation of the City of Adelaide v Adelaide City Fines Pty Ltd (2009) 253 ALR 417.

Paragraph (h) prohibits a person impersonating an agent or employee of the State, another state, a territory or the Commonwealth. This is to ensure that any person can readily and easily distinguish government officials and private citizens collecting debts. Paragraph (i) prohibits any attempt or threat to take possession of any property where a person does not have an entitlement to take possession. This provision is intended to make it an offence for a person to attempt to deprive or threaten to deprive another person of his or her property without lawful authority.

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Paragraph (j) prohibits disclosure of and threats to disclose debt information, without the consent of the debtor, to other persons who do not have a clear and legitimate interest in the information.

Paragraph (k) prohibits the use of certain false or misleading representations regarding debt collection. A notable example deals with threats to give to a credit reporting agency information that could affect another person's creditworthiness that could not be given or, if given, would be false or misleading. Section 18R of the Privacy Act 1988 of the Commonwealth makes it an offence for a credit provider (within the meaning of that Act) to intentionally give a credit report that includes false or misleading information, while section 18E(8) of that Act restricts what information can be given by the credit provider.

Paragraph (l) prohibits contacting a debtor by a method which the debtor has asked not to be used unless there is no other method available. For example, a debtor may specify that no communication be made by telephone.

Paragraph (m) prohibits contact with a person about a debt after the person has advised in writing that they do not wish to be contacted about that debt unless the contact is by way of an action issued through the court or the threat of an action which the person to whom the debt is owed is entitled to issue through the court and which the person intends to take.

Paragraph (n) prohibits communicating with a person under 18 years of age in relation to a debt, if the person is not the debtor. This is intended to ensure children are protected in the debt collection process.

Paragraph (o) prohibits a person demanding payment of a debt from another person without having a belief on reasonable grounds that the other person is the debtor and is liable for the debt. This is intended to prevent "speculative" debt collection where the creditor does not know the identity or contact details of a debtor. For example, it is intended to prohibit a person demanding payment of a debt from several people with the same or similar name as a debtor in the hope one will pay the debt. It is also intended to prevent demands for payment of a debt after the debt has been repaid. The section is not intended to prevent attempts to locate or identify the debtor.

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Paragraph (p) prohibits communication with a person that is unreasonable in its frequency, nature or content.

Subclause (3) defines debtor for the purposes of this clause to include a guarantor of a debtor and a mortgagor.

Subclause (4) defines official document for the purposes of subclause (2)(g) to include any document resembling a summons, a court document, a Tribunal document or a notice issued under the Infringements Act 2006 along with any other communication that is authorised, issued or approved by a court, the Tribunal, a government or a government agency. The reference to notices issued under the Infringements Act 2006 has been added to prevent the use of documents that may cause a person to believe they had received a fine. Section 38 of the Interpretation of Legislation Act 1984 also defines the term document.

Subclause (5) clarifies that police officers, bailiffs sheriffs and other agents and employees of the State, another state, a territory or the Commonwealth are exempt from the operation of this section when acting in an official capacity. This is to avoid doubt about the applicability of the section.

Clause 46 creates a power for a court or VCAT to award stand-alone damages to compensate any person who has experienced distress or humiliation as a result of a course of conduct contravening clause 45 without the need to demonstrate other loss or injury (including psychiatric injury). This is intended to ensure that the costs of consumer detriment caused by unfair debt collection practices are recognised and borne by the person who caused the detriment.

Subclause (1) creates a power for a court or VCAT to award damages of up to $10 000 (or a prescribed amount) if a person has experienced humiliation or distress due to a course of conduct in contravention of clause 45 with respect to a consumer debt. The award of damages can be made against the person who engaged in the contravening conduct or a person involved in that conduct as an accessory in a manner similar to former section 159 of the Fair Trading Act 1999.

Subclause (2) defines course of conduct and applies clause 197 of the Bill through a definition of person involved. A requirement that a course of conduct consisting of

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contraventions on two or more occasions has been included to ensure that one-off accidental and technical breaches of clause 45 do not give rise to a cause of action under subclause (1). Compensation for one-off offences remains available under clause 218.

Subclause (3) provides that the remedy under subclause (1) applies despite any other remedy that may be available, and that it is not intended to affect any other remedy. For example, if a person enters another person's private residence without lawful authority, the first person may also be liable for damages in trespass.

Subclause (4) excludes clauses 28BB and 28GG of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to ensure that where a claim is a small claim heard at VCAT, restrictions on legal representation and costs awards will not apply. The restriction on costs awards has been removed to give VCAT discretion to award costs, for example if litigation under this section is frivolous or vexatious.

Subclause (5) excludes the operation of Part VBA of the Wrongs Act 1958 to clarify that a person claiming damages under the section will not have to meet the threshold level of "significant injury" or undergo an assessment of impairment.

Clause 47 prohibits certain groups of people from engaging in debt collection. This includes people who have been found to have contravened legislation that prohibits undue harassment, coercion or physical violence in the collection of payments. This is intended to capture both criminal and civil contraventions of such legislation. Failure to comply with the section will lead to a penalty of 240 penalty units or two years imprisonment for a natural person or 1200 penalty units for a body corporate. Additionally, a natural person who has been found guilty of an offence against clause 45 will be prohibited from acting as a debt collector for five years.

Clause 48 enables prohibited persons to apply to the Business Licensing Authority for permission to operate as a debt collector.

Clause 49 sets out the test that a permission application must meet. Permission may be granted if the Business Licensing Authority is satisfied that it will not be contrary to the public interest to do so.

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Clause 50 provides for the Business Licensing Authority to impose conditions on any permission granted. Failure to comply with the section will lead to a penalty of 240 penalty units or two years imprisonment for a natural person or 1200 penalty units for a body corporate.

Clause 51 enables a person whose interests have been affected by a decision under clause 49 and clause 50 to apply to VCAT for a review of the decision.

Clause 52 provides that it is an offence for a debt collector to charge a debtor for debt collection activity. A penalty of 120 penalty units applies to this offence.

Subclause (2) clarifies that enforcement expenses can be recovered where a credit contract permits such recovery and, in cases where a debt is not wholly or predominately accrued in connection with personal, domestic or household purposes, where a term of an agreement permits such recovery.

Subclause (3) provides that it is a defence if the debt collector had an honest and reasonable belief that the enforcement expenses did not exceed those reasonably incurred by the creditor.

Subclause (4) provides for the recovery of any costs or expenses recovered in contravention of subclause (1).

Subclause (5) defines certain terms for the purposes of this clause.

Clause 53 prohibits a prohibited person from knowingly purchasing or accepting an assignment of a consumer debt from a creditor for the purpose of collecting that debt. Failure to comply with the section will lead to a penalty of 240 penalty units or two years imprisonment for a natural person or 1200 penalty units for a body corporate.

PART 4.2—DISPOSAL OF UNCOLLECTED GOODS

Division 1—Preliminary

Clause 54 defines when goods under bailment will be uncollected goods for the purposes of the Part.

Clause 55 defines the term "relevant charge" for the purposes of the Part.

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Clause 56 details the application of the Part.

Subclause (1) applies the Part to all goods under bailment.

Subclause (2) excludes the operation of the Part from other Acts that specify procedures for the disposal of uncollected goods.

Subclause (3) provides that, subject to the exclusions in subclause (2), the Part applies in addition to any other remedy or right a person may have to dispose of uncollected goods.

Subclause (4) provides that the Part applies only to the extent no agreement exists between the parties concerning the disposal of uncollected goods or if there is an agreement only in respect of matters not dealt with by the agreement.

Subclause (5) provides that the Part does not apply to a lease or other agreement to which Part IVA of the Landlord and Tenant Act 1958 applied immediately before its repeal under clause 236 of this Bill. Many commercial leases specify Part IVA of the Landlord and Tenant Act 1958 as the means to dispose of goods left behind by tenants.

Subclause (6) clarifies that this Part does not affect the right of a provider and a receiver to make an agreement concerning the disposal of uncollected goods.

Clause 57 preserves the operation of the common law in relation to the bailment of goods except to the extent that this Part otherwise provides.

Division 2—Disposal of Uncollected Goods

Clause 58 provides that a receiver may dispose of uncollected goods under this Division. However, a receiver must not dispose of uncollected goods if a dispute exists between the provider and the receiver regarding the relevant charge and an application has been made to the court under clause 69 for an order determining the relevant charge payable.

Clause 59 provides that any person with an interest in the goods may take delivery of the goods on payment of the relevant charge at any time before they are disposed of.

Clause 60 provides for the disposal of low value uncollected goods.

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Subclause (1) enables a receiver to dispose of uncollected low value goods (up to $200 in value) after the provider has been notified in writing of the receiver's intention to dispose of the goods and has been given at least 28 days to collect them.

Subclause (2) provides that where a receiver cannot locate or communicate with the provider of the goods after reasonable attempts to do so, he or she may dispose of the goods 60 days after they become uncollected goods.

Subclause (3) provides that a receiver may dispose of the goods by any means.

Clause 61 provides for the disposal of medium value uncollected goods.

Subclause (1) enables a receiver to dispose of uncollected medium value goods of between $200 and $5000 (excluding motor vehicles) in value after the provider and the owner of the goods (if the receiver knows that the provider and the receiver are different people) have been notified in writing of the receiver's intention to dispose of the goods and have been given at least 28 days to collect them.

Subclause (2) provides that where a receiver cannot locate or communicate with the provider or the owner of the goods after reasonable attempts to do so, he or she may dispose of the goods 90 days after they become uncollected goods.

Subclause (3) provides that a receiver must dispose of the goods by public auction or private sale, and must take reasonable care to obtain the best price that can reasonably be obtained.

Clause 62 provides for the disposal of high value uncollected goods.

Subclause (1) enables a receiver to dispose of uncollected high value goods of over $5000 in value (or $200 in the case of a motor vehicle as per the definition of high value, for goods) after the provider, the owner (if the receiver knows that the provider and the owner are different people), any person with a publicly registered interest in the goods and any other person the receiver knows claims an interest in the goods have been notified in writing of the receiver's intention to dispose of the goods and have been given at least 28 days in which to collect them.

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Subclause (2) provides that where a receiver cannot locate or communicate with the provider or the owner of the goods after reasonable attempts to do so, he or she may dispose of the goods 180 days after they become uncollected goods.

Subclause (3) provides that a receiver must dispose of the goods by a public auction that is publicly advertised at least seven days in advance or held over a period of at least seven days (for example, an online auction can last over seven days).

Clause 63 prohibits the sale of a motor vehicle of high value under this Part unless the seller obtains a written search result from the Personal Property Securities Register under section 170(2)(b) of the Personal Property Securities Act 2009 of the Commonwealth. This offence attracts a maximum penalty of 60 penalty units for a natural person and 120 penalty units for a body corporate. It is expected that such search results will include details of any person who has a publicly registered interest in the motor vehicle, as well as information on whether a vehicle is stolen.

Clause 64 permits VicRoads to release details of the registered operator of a motor vehicle to a receiver who provides the required information to enable the receiver to contact the registered operator for the purposes of clauses 62 and 68.

Clause 65 enables a receiver to dispose of uncollected perishable goods.

Subclause (1) allows the disposal to be by sale, appropriation or destruction after the provider has been notified, orally or in writing, of the receiver's intention to dispose of the goods and has been given a reasonable opportunity to collect the goods.

Subclause (2) permits a receiver to dispose of perished goods but requires the receiver to make reasonable attempts to provide oral or written notice of the disposal to a provider.

Clause 66 specifies the matters that must be included in a notice of intention to dispose of uncollected goods.

Clause 67 provides that a notice under this Division may be served personally or by post. This clause also provides that a notice to a person with a publicly registered interest in uncollected goods

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is taken to have been given if it has been sent to the person's address as recorded in the register.

Division 3—Applications to court, court order and related provisions

Clause 68 enables a receiver to apply to a court for an order authorising the disposal of uncollected goods, specifies what must be included in an application, and to whom the application must be sent.

Clause 69 enables a provider or a receiver to apply to a court for an order determining the amount of the relevant charge payable to the receiver if a dispute exists.

Clause 70 sets out the orders a court may make following an application under clause 68 or 69.

Subclause (1) empowers a court to make an order authorising the disposal of specified goods under bailment, determining the amount of the relevant charge and any other orders to give effect to such orders.

Subclause (2) provides that an order for the disposal of specified goods under bailment must specify the means of disposal of the goods, the date by which the goods may be disposed of and the relevant charge due to the receiver in respect of the goods.

Clause 71 provides that, if a court has made an order for the disposal of uncollected goods, any person with an interest in the goods may take delivery of the goods on payment of the relevant charge at any time before they are disposed of.

Clause 72 suspends the operation of an order under clause 70 in circumstances where other legal proceedings are commenced for the recovery of the goods to which the order relates. If any such proceedings are successful, the order made under clause 70 ceases to have effect.

Division 4—Miscellaneous

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Clause 73 specifies how the proceeds of a sale of uncollected goods are to be dealt with.

Subclause (1) entitles a receiver to retain from the proceeds of sale of goods under Division 2 the relevant charge due to the receiver in respect of the goods.

Subclause (2) provides that the remainder of the proceeds are to be dealt with as if the receiver were a business and the proceeds were unclaimed money under the Unclaimed Money Act 2008.

Subclause (3) preserves the right of the receiver to recover the amount of any deficiency from the provider as a debt.

Clause 74 specifies record-keeping requirements that must be complied with within 7 days of the disposal of uncollected goods.

Subclause (1) requires a receiver to prepare a record containing specified information in relation to goods disposed of under Division 2.

Subclause (2) requires a receiver to keep the record for at least 6 years, and further provides that the receiver must make the record available, on request, for inspection by the provider, the owner or by any other person claiming an interest in the goods.

Clause 75 provides that the purchaser of any goods sold under Division 2 acquires good title to the goods, free of any other interest, if the goods are bought without notice of any failure by the receiver to comply with the provisions of the proposed Part or of any defect or want of title in the provider.

Subclause (2) provides that a receiver who disposes of the goods by appropriation in accordance with Division 2 receives good title to those goods.

Clause 76 provides for the issue of receipts for the sale of motor vehicles to ensure that a purchaser of a motor vehicle can demonstrate how their possession of the vehicle came about. Subclause (1) requires a seller of a motor vehicle to issue a receipt. Subclause (2) specifies the information that must be included in the receipt.

Clause 77 provides for the interaction between this Part, and other provisions in the Bill.

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Subclause (1) confers jurisdiction on VCAT to hear disputes under this Part as consumer and trader disputes within the meaning of Chapter 7.

Subclause (2) states that clause 153, which allows for emergency entry by inspectors appointed under this Bill to search for goods that may be dangerous or subject to a ban order does not apply to this Part.

Subclause (3) states that Part 8.2 of the Bill does not apply to this Part, thereby ensuring that remedies that are not currently applied to the disposal of uncollected goods are not applied in future.

PART 4.3—FAIR REPORTING

Clause 78 provides that a consumer who disputes the accuracy or completeness of any information compiled by a credit reporting agent in relation to the consumer may serve a notice requesting the agent to correct the information. The credit reporting agent must, within 30 days of the notice, inform the consumer whether or not the agent has made the amendment, supplement or deletion from the information recorded in relation to the consumer. The credit reporting agent must also notify all persons who have been supplied with information relating to the consumer of the amendment, supplement or deletion.

Clause 79 provides that where a credit reporting agent fails to provide a consumer with information required under clause 78(3) or fails to make an amendment requested by a consumer or the consumer is not satisfied with the amendment, supplement or deletion, the consumer may apply to the Magistrates' Court for an order requiring the credit reporting agent to make any or any further amendment, supplement or deletion from the information.

Clause 80 sets out the powers of the Magistrates' Court in relation to applications under clause 79.

Subclause (1) provides that the Magistrates' Court may order persons to be excluded from the court and in the case of disobedience may order removal from the court.

Subclause (2) provides that the Magistrates' Court may order a credit reporting agent to amend, supplement or delete any item

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of information concerning the consumer that the Court is satisfied is inaccurate, misleading or irrelevant to the purpose for which the information is kept or which should be amended, supplemented or deleted by reason of effluxion of time and to give any person to whom the agent has provided information with respect to the consumer, full particulars of the amendment, supplement or deletion. A credit reporting agent who does not comply with an order under this clause commits an offence and is liable of a maximum penalty of 60 penalty units or imprisonment for 6 months.

CHAPTER 5—SPECIFIC BUSINESS PROVISIONSChapter 5 contains provisions relating to the regulation of specific businesses.

Part 5.1 re-enacts Part 5AA of the Fair Trading Act 1999 and regulates introduction agents.

Part 5.2 limits the common law strict liability of accommodation providers.

PART 5.1—INTRODUCTION AGENTS

Division 1—Interpretation

Clause 81 defines introduction agent.

Clause 82 defines introduction service.

Clause 83 defines who carries on a business for the purposes of this Part.

Clause 84 provides that an introduction agency is not to be operated out of premises used to provide sex work services. This ensures that introduction agencies and sex work are conducted separately.

Division 2—Persons who are not introduction agents

Clause 85 provides that this Part does not apply to any person who is does not act as an introduction agent in carrying out an activity specified in clauses 86 to 91.

Clause 86 provides an exemption for activities with a community purpose, provided the net proceeds are solely applied to furthering that purpose. Community purpose is defined in this clause to mean

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activities with a philanthropic or benevolent purpose or sporting or recreational purposes.

Clause 87 provides an exemption for non-profit activities covering activities that do not have a significant commercial purpose or character and do not primarily seek to make a profit.

Clause 88 provides an exemption for publishers of advertisements for people who are seeking personal or social relationships.

Clause 89 provides an exemption for information service providers, and provides a definition of information provider and information service for the purposes of this clause.

Clause 90 provides an exemption for organisers of dances and similar social activities.

Clause 91 ensures that a licensee or approved manager under the Sex Work Act 1994 is not treated as an introduction agent merely by providing sex work services and people who provide a means for a person to offer introduction services such as newspaper publishers are not treated as introduction agents.

Division 3—Persons who must not act as introduction agents

Clause 92 sets out circumstances in which persons must not operate as introduction agents.

Subclause (1) makes it an offence, attracting a maximum penalty of 120 penalty units or 12 months imprisonment for a natural person who is under 18, an insolvent under administration, or who has been found guilty of certain offences within the last five years, or is a represented person under the Guardianship and Administration Act 1986 or a licensee or approved manager under the Sex Work Act 1994 to act as an introduction agent.

Subclause (2) makes it an offence attracting a maximum penalty of 600 penalty units for a body corporate to act as an introduction agent if one or more of its directors is disqualified under subclause (1) or it has been found guilty in the last five years of certain offences; or it is an externally-administered body.

Subclause (3) defines key terms for the purpose of this clause.

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Division 4—Permission for disqualified persons to act as introduction agents

Clause 93 enables a person disqualified under clause 92 (other than a minor, a represented person, or a licensee or manager of a sex work service provider) to apply to the Business Licensing Authority for permission to act as an introduction agent.

Clause 94 enables the Business Licensing Authority to give its permission for a disqualified person to act as an introduction agent if it is satisfied it is not contrary to the public interest to do so.

Subclause (2) states that the Business Licensing Authority may refuse to give permission if the applicant refuses to or fails to provide further information required by the Authority under subclause (3).

Subclause (4) enables the Business Licensing Authority to revoke its permission if it is in the public interest to do so. A person affected by a decision under this subclause would be able to apply to VCAT under clause 96.

Subclause (5) requires that the revocation of a permission must not occur unless the Business Licensing Authority gives an affected person an opportunity to be heard.

Clause 95 enables the Business Licensing Authority to impose conditions on any permission granted. Failure to comply with any conditions imposed can lead to penalties of up to 600 penalty units for corporations, or 120 penalty units or 12 months imprisonment for natural persons.

Clause 96 enables a person whose interests have been affected by a decision under clauses 94 or 95 to apply to VCAT for a review of the decision.

Division 5—Introduction agreements

Clause 97 requires an introduction agreement to contain certain information, including a statement regarding the withdrawal period contained in Schedule 2. A maximum 240 penalty unit penalty applies if the agreement does not contain that information. An introduction agent who fails to comply with the terms of an introduction agreement may contravene Chapter 2 of this Bill (for example, by accepting payment

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without being able to supply as ordered), rendering that agent a disqualified person.

Clause 98 limits the amount of money an introduction agent can demand prior to the provision of an introduction service to no more than 30 per cent of the price of that service. Subclause (2) limits the application of the clause where the amount to be paid under the agreement is less than $1000. The limit applies where $1000 or less has been paid in the last month and $5000 or less has been paid in the last 12 months.

Clause 99 gives any person who has entered into an introduction agreement a right to withdraw from an agreement within 3 clear business days of entering into it. To effect a withdrawal, a person must give written notice. An introduction agent is entitled to retain the lesser of $250 or 10 per cent of the agreement's total amount, but must refund the balance of any money paid within 7 days. A maximum 240 penalty unit penalty will apply for a contravention.

PART 5.2—LIABILITY OF ACCOMMODATION PROVIDERS

At common law, innkeepers have long been subject to special rules that govern their rights and obligations. Among the duties imposed on innkeepers are: a duty to receive and entertain guests, a duty to take reasonable care for guest's safety, a duty to receive and look after guest's means of transport and a duty to safeguard a guest's property. In addition, an innkeeper can set rules of the house and take a lien over property.

Clause 100 clarifies the common law by specifying that only an accommodation provider is an innkeeper and that only an accommodation place is an inn.

Clause 101 details the liability of accommodation providers under this Part.

Subclause (1) provides that subject to subclause (2) and clause 102 an accommodation provider is liable to make good the loss of property of a guest in the accommodation place during the period of accommodation or while the property is deposited for safekeeping with the accommodation provider.

Subclause (2) specifies that an accommodation provider is not liable for the intentional or negligent act or omission of a guest. This restriction is not intended to affect any rights the guest may have under this Bill.

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Clause 102 imposes a limitation on the strict liability that an accommodation provider has under the common law doctrine of innkeeper's liability for the loss of the guest's property. The liability for the loss is limited to $300 for the unit of accommodation if the notice required by clause 104 is posted to ensure guests are aware of the limit on liability.

Subclause (2) sets out the circumstances where the $300 limitation does not apply. These include circumstances where the loss of the property occurred after the accommodation provider or the provider's agent accepts the property for depositing in the safekeeping service in accordance with clause 103 or the loss is caused by the fault of the accommodation provider or the provider's agent. In these circumstances the limitation does not apply and the accommodation provider is liable in accordance with the rules at common law.

Clause 103 provides for safekeeping requirements.

Subclause (1) requires that an accommodation provider must accept a guest's property for safekeeping unless the accommodation provider has a reasonable excuse for not doing so.

Subclause (2) specifies that, where a guest asks to use an accommodation provider's safekeeping service, the accommodation provider is entitled to inspect the property to be deposited by the guest and to ask the guest to describe and value the property. The accommodation provider must provide the guest with a receipt including the description and estimated value of the property and may require the guest to place the property in a container and seal it him or herself. This allows accommodation providers to protect themselves from fraudulent claims with regard to property deposited.

Subclause (3) provides that an accommodation provider is liable if the loss of a guest's property occurs after the accommodation provider has accepted the property for safekeeping.

Subclause (4) limits the accommodation provider's liability to $3000 for each accommodation unit provided for the use of the guest on the day of the loss despite the amount of the loss on the day or the number of guests using the accommodation who suffer a loss of property.

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Subclause (5) provides that the limitation on the accommodation provider's liability under subclause (4) does not apply if before, or at the time, the property is accepted for depositing in the safekeeping service, the guest, in writing, declares the value of the property is more than $3000 and, if asked to do so, pays or agrees to pay a fee for the accommodation provider accepting the property to deposit in the safekeeping service.

Subclause (6) includes examples of reasonable excuses under subclause (1).

Clause 104 sets out the requirement for an accommodation provider to ensure that guests are notified about the limits of liability imposed by this Part. This is achieved by requiring a notice be displayed in the reception area or main entrance. Additionally a notice must be displayed in the accommodation unit or drawn to the guest's attention in some other way, or given to a guest.

Clause 105 continues the common law right of an innkeeper's lien to be taken over the guest's property in circumstances where the bill for accommodation, food, beverages and other services has not been paid. This common law right applies to accommodation providers under this Bill. The lien gives the accommodation provider the right to retain possession of the property until the guest's account is paid. It is only a right to obtain possession, not a power of sale.

Clause 106 excludes Chapter 8 relating to prosecutions and remedies. This is because this Part is intended to be self-contained and does not contain offences.

CHAPTER 6—CONSUMER AFFAIRS VICTORIAPart 6.1 re-enacts Division 1 of Part 7 of the Fair Trading Act 1999.

Part 6.2 sets out the powers of the Director of Consumer Affairs Victoria and re-enacts Part 8 of the Fair Trading Act 1999.

Part 6.3 sets out the powers of the Director of Consumer Affairs Victoria to develop codes of practice and re-enacts Part 6 of the Fair Trading Act 1999.

Part 6.4 sets out inspection powers and re-enacts Part 10 of the Fair Trading Act 1999.

PART 6.1—ADMINISTRATION

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Clause 107 provides that there is to be a Director of Consumer Affairs Victoria employed under Part 3 of the Public Administration Act 2004.

Clause 108 provides that any other employees required to administer this Act can be employed under Part 3 of the Public Administration Act 2004.

Clause 109 sets out the functions of the Director of Consumer Affairs Victoria. Some of the key functions of the Director include—

advising persons of their rights under this Bill or other Consumer Acts;

receiving and dealing with complaints from persons in accordance with this Bill or other Consumer Acts;

monitoring compliance with this Bill and other relevant Acts and regulations;

investigating and prosecuting breaches of this Bill and other relevant Acts and regulations;

instituting and defending proceedings to achieve the purposes of this Bill or other Consumer Acts;

reporting to the Minister for Consumer Affairs on any matter in relation to fair trading which he or she has investigated;

educating and informing people on fair trading issues; and

any other function conferred on the Director by this Bill or any other Act.

Clause 110 provides that the Director of Consumer Affairs Victoria has all the powers necessary to perform his or her function.

Clause 111 provides that the Director of Consumer Affairs Victoria may delegate by instrument any of his or her functions under this Bill or any other Act, to a person or class of person employed under Part 3 of the Public Administration Act 2004, but cannot delegate the power of delegation or a power under clause 126 permitting him or her to require the production of information, documents and evidence.

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Clause 112 provides that the Director of Consumer Affairs Victoria must submit an annual report to the Minister for Consumer Affairs.

PART 6.2—POWERS OF DIRECTOR

Division 1—Disputes

Clause 113 provides that any person may make a written complaint to the Director of Consumer Affairs Victoria relating to any matter the Director is empowered to refer to conciliation under clause 114. Subclause (2) provides that the Director may ask for further information relating to the complaint, and subclause (3) provides that a complainant must give his or her name to the Director, along with other details required to establish his or her identity.

Clause 114 allows the Director of Consumer Affairs Victoria to refer to a consumer affairs employee for conciliation or mediation a dispute between either a purchaser or possible purchaser (in the case of a natural person) or a consumer or possible consumer (if not a natural person) and a supplier about a supply or possible supply of goods or services in trade on commerce.

A consumer affairs employee is defined to mean a person employed under Part 3 of the Public Administration Act 2004 in the administration of this Act.

The term consumer is defined in section 3 of the Australian Consumer Law (Victoria) as a person (either natural or non natural) who buys goods or services that cost up to $40 000; goods or services that cost more than $40 000 and are of a kind ordinarily acquired for domestic, household or personal use or consumption; or a vehicle or trailer primarily used to transport goods on public roads. A person will not be a consumer if they buy goods to resell or transfer into a product to sell.

Subclause (2) provides that a dispute referred to conciliation or mediation under subclause (1) must be reasonably likely to be settled.

Subclause (3) provides that the Director must refer a dispute, or a part of a dispute, under subclause (1) to another prescribed

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body or person if the dispute, or part of the dispute, falls within the jurisdiction of the other body or person.

Subclause (4) provides that subclause (1) applies whether or not a person has made a complaint under clause 113.

Clause 115 empowers the Director of Consumer Affairs Victoria to institute, continue or defend proceedings on behalf of a person or persons in relation to a consumer dispute.

A consumer dispute is defined to mean 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, other than a dispute under or in relation to the National Consumer Credit Protection Act 2009 of the Commonwealth.

The term proceeding is defined to include group and representative proceedings.

Subclause (2) provides that the Director must not institute, continue or defend proceedings unless he or she is satisfied that: a good cause of action or good defence to an action exists; proceedings are not being brought against an individual or who acquiring goods or services of a kind ordinarily used for personal, household or domestic purposes; and that it is in the public interest to institute, continue or defend the proceedings.

Subclause (3) provides that the Director must not institute or continue or defend proceedings on behalf of another unless the person has given written consent, or, in the case of group or representative proceedings, the representative party has given consent. However, the Director need not obtain consent if proceedings are instituted, continued or defended under a provision of an Act that provides that the person's consent is not required.

Subclause (4) provides that if consent has been given under subclause (3), the Director may continue the proceeding or defence even if the consent is subsequently withdrawn.

A note to clause 115 clarifies that the clause is not intended to displace or limit the procedures for applications under sections 149 or 277 of the Australian Consumer Law (Victoria) relating to representative actions.

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Clause 116 provides that if the Director institutes, continues or defends proceedings on behalf of a person under clause 115—

the Director may settle the proceeding at any time;

the Director may take necessary steps to enforce any judgement obtained in favour of the person;

any amount recovered by the Director (other than an amount in respect of costs) in respect of the person is payable to the person;

any costs recovered are payable to the Director;

the person on whose behalf the proceeding is conducted is liable to pay an amount awarded against the person (not being costs); and

the Director is liable for any costs of or incidental to the proceedings that are payable by the person.

Subclause (2) provides that if the Director institutes, defends or continues proceedings on behalf of another without consent, or after consent has been revoked, the Director must compensate that person for any loss suffered as the result of the loss of any settlement offer or out of pocket expenses incurred by that person during the proceedings (after consent has been revoked). Further, the Director is liable to pay any amount awarded against that person.

Subclause (3) provides that, where proceedings are instituted, continued or defended on behalf of another without consent, or after consent has been revoked, any amount recovered by the Director in excess of what the Director must pay the person under subclause (2) may be applied by the Director to the payment of the costs of, and incidental to, the proceedings for which the Director is liable or which the Director has incurred.

Subclause (4) provides that where a counterclaim is, or may be, filed in a proceeding under clause 115 that is not related to the proceeding, the Director may apply to the court or the Tribunal to have the counterclaim not heard as part of the proceeding. Under subclause (5), if the court or Tribunal makes such an order, the court or Tribunal may make ancillary or consequential provisions that it thinks fit.

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Clause 117 provides that the Director of Consumer Affairs Victoria may grant legal assistance to a person who claims to be involved in a consumer dispute, in certain circumstances. This provision is distinct from clause 115 of this Bill in that it deals with grants of legal assistance by the Director, rather than the Director's power to institute, continue or defend proceedings relating to a consumer dispute.

Subclause (1)(a) and (b) provide that the Director may grant legal assistance to a person who claims to be involved in a consumer dispute if: the person wishes to bring legal proceedings (other than criminal proceedings) arising out of the supply to the person of goods or services or the disposal to the person of an interest in land; or the person wishes to make an appeal or seek judicial review in relation to such proceedings. Subclause (1)(c) empowers the Director to grant legal assistance to a person who is a party to legal proceedings, or proceedings relating to an appeal or review, of the type described above.

Subclause (2) provides that, for the purposes of granting legal assistance under subclause (1), the Director must—

be satisfied that the person has reasonable grounds for bringing, or being a party to, the proceedings; and

be of the opinion that it is desirable, in the general interests of consumers or of any class of consumers, that assistance should be granted; and

obtain the written approval of the Minister for Consumer Affairs to grant the assistance.

Subclause (3) provides that the Director may decide not to grant assistance if the Director is of the opinion that it should not be granted because of the person's financial position.

Subclause (4) provides that, if the Director decides to grant legal assistance under subclause (1), the Director must notify the person to whom the assistance is being granted. A person to whom assistance is granted must not withdraw from the proceedings (or discharge a legal practitioner acting in the proceedings) without the Director's consent.

Subclause (5) provides that legal assistance granted under this clause does not extend to expenses other than the costs of legal representation and expenses prescribed by regulation.

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Subclause (6) provides for expenses incurred in the provision of assistance under this clause, as well as court fees, to be met through appropriations from the Consolidated Fund.

Subclause (7) defines the expression consumer dispute as having the same meaning as it has in clause 115.

Clause 118 deals with costs and expenses relating to proceedings to which an assisted person is a party.

Subclause (1) provides that, if a person is granted assistance under clause 117, the court must, in making an order for costs, make the same order either in favour of or against the assisted person, as the court would have made if the person had not been an assisted person (except where the order is made against, or in favour of, another assisted party).

Subclause (2) provides that if the court makes an order for costs in favour of an assisted person, those costs are payable to the Director of Consumer Affairs Victoria and may be recovered by the Director as a debt due to the Crown. Subclause (2) further provides for costs paid to or recovered by the Director to be paid into the Consolidated Fund

Subclause (3) provides that, if an order for costs is made against an assisted person, the costs must be paid by the Director.

Subclause (4) provides that, except in the case of costs payable to the Director, money awarded by a court in favour of an assisted person is payable to the person without deduction.

Division 2—Show cause notices

Clause 119 provides that the Director of Consumer Affairs Victoria may serve a "show cause" notice on a supplier reasonably believed to have engaged in conduct that contravenes this Bill or the regulations, where it is likely that the supplier will continue to engage in that conduct and there is a danger that someone may, unless urgent action is taken, suffer harm, loss or damage as a result of the supplier's conduct. A "show cause" notice requires a supplier to show cause why it should be allowed to continue trading.

Subclause (3) sets out how a "show cause" notice must be served, and provides that the notice must specify the conduct which the supplier is believed to have engaged in, as well as

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the time period within which the supplier must respond to the notice; the steps the supplier needs to take to respond to the notice; and the consequences of failure to respond to the notice.

Subclause (4) provides that, despite the requirement in subclause (3)(a)(i) that a show cause notice be served personally on a supplier who is a natural person, the Director may apply to VCAT for an order that the notice may be served by post, facsimile or other electronic transmission, or by leaving it at the supplier's usual or last known residential or business address with a person apparently at least 16 years old who resides or is employed there. VCAT may make such an order if it appears that service in accordance with clause 119(3)(a)(i) cannot be promptly effected.

Subclause (5) states that it is an offence for a supplier to fail to respond to the notice within the specified time to continue trading past the expiry of the notice. The offence attracts a maximum penalty of 600 penalty units, for a natural person, and 1200 penalty units for a body corporate.

Subclause (6) provides for a supplier's right to seek a review of the decision to issue a show cause notice.

Subclause (7) makes it an offence for a supplier to make a statement to the Director, in response to a show cause notice, that is false or misleading in a material particular. The offence attracts maximum penalties of 600 penalty units and 1200 penalty units for natural persons and bodies corporate, respectively.

Division 3—Licence suspension

Clause 120 provides that the Director of Consumer Affairs Victoria may suspend a business licence and other trading and employment rights under the business licensing Acts administered by Consumer Affairs Victoria, where there are reasonable grounds to believe that the licensee has engaged in conduct that would constitute grounds for the initiation of disciplinary proceedings or the bringing of proceedings for an offence or an injunction under the relevant Act; it is likely that the licensee will continue to engage in that conduct; and there is a danger that a person

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may suffer substantial harm, loss or damage as a result of the conduct, unless urgent action is taken. The suspension must be by written notice issued to the licensee.

Subclause (3) sets out requirements for effective service of a notice of suspension, and provides that the notice must specify the conduct the licensee is believed to have engaged in and state the rights of review open to the licensee. Subclause (3) also provides that a notice issued under subclause (1) has effect whether or not the licensee has been given an opportunity to be heard on the matter.

Subclause (4) provides that, despite the requirement in subclause (3)(a)(i) that a notice be served personally on a licensee who is a natural person, the Director may apply to the Tribunal for an order that the notice may be served by post, facsimile or other electronic transmission, or by leaving it at the supplier's usual or last known residential or business address with a person apparently at least 16 years old who resides or is employed there. The Tribunal may make such an order if it appears that service in accordance with subclause (3)(a)(i) cannot be promptly effected.

Subclause (5) provides that the suspension takes effect on the service of the notice.

Clause 121 sets out the effect of a licence suspension.

Subclause (1) provides that clause 121 applies despite anything to the contrary in a business licensing Act or any other Act or law other than this Division.

Subclause (2) provides that if a notice is issued suspending an estate agent's licence under the Estate Agents Act 1980; a motor car trader's licence under the Motor Car Traders Act 1986; a licence within the meaning of the Sex Work Act 1994; or a travel agent's licence under the Travel Agents Act 1986, the licence is deemed to be suspended for the duration of the licence suspension period.

Subclauses (3) and (4) provide that if a notice is issued suspending a licensee's right to act as an agent's representative (within the meaning of the Estate Agents Act 1980) or

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participate in a customer service capacity in the business of a motor car trader (within the meaning of the Motor Car Traders Act 1986), the licensee is deemed, respectively, to be ineligible to act as an agent's representative, or to be employed in a customer service capacity for a motor car trader, for the licence suspension period.

Subclause (5) deals with notices that suspend approvals under Division 5 of Part 3 of the Sex Work Act 1994. If such a notice is issued, the approval is deemed to be suspended for the licence suspension period.

Subclause (6) deals with notices that suspend the registration or endorsement of registration of a licensee under the Second-Hand Dealers and Pawnbrokers Act 1989. If such a notice is issued, the registration or endorsement is deemed to be suspended for the licence suspension period.

Subclause (7) provides that if a notice is issued suspending a licensee's licence under the Conveyancers Act 2006, the licensee is deemed to be prohibited from carrying on a conveyancing business and/or undertaking conveyancing work as an employee of such a business, during the licence suspension period.

Clause 122 provides that a suspension under this Division lapses if an application is not made to VCAT under a business licensing Act to inquire into the conduct of the licensee, or court proceedings have not commenced in relation to the conduct of the licensee within the required period. The required period is defined to mean 14 days after service of the notice (or any extension allowed by VCAT or the court under clause 123 of this Bill).

If within the required period after the service of the notice, an application is made to the Tribunal to inquire into, or court proceedings are commenced in relation to, the conduct of the licensee, the suspension continues until ordered by the Tribunal or the court.

Subclause (3) provides that if a suspension lapses after a notice of suspension is served, a licensee cannot be served with another notice for 6 months from the date of service of the first notice.

Subclause (4) clarifies that the Director's power to issue suspension notices does not limit or displace the Director's, or

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any other person's, power under a business licensing Act to suspend or cancel a licence, or take action against a licensee, in respect of the conduct concerned.

Clause 123 allows the Director of Consumer Affairs Victoria, within 14 days after service of a notice under clause 120, or before the end of an extension of that period, to make an application to VCAT or the court for a 14 day extension, or further extension, of the notice. VCAT or the court may make such an order, if in all the circumstances it considers it just and convenient to do so. VCAT or the court may adjourn such an application to enable notice of the application to be given to any person.

Clause 124 allows a licensee to apply to VCAT for a review of the decision to issue a notice under this Division.

Division 4—Obtaining information, documents and evidence

Clause 125 enables the Director of Consumer Affairs Victoria to gather information to assist in monitoring compliance with the Bill and regulations. The information is not admissible in any proceedings except those for refusing to comply with a notice under the section.

Subclause (1) provides that the Director may require, by written notice, a person believed to be capable of providing information or producing documents that may assist the Director in monitoring compliance with this Bill (or regulations made under the Bill) to provide that information, or produce those documents. A person may also be required to appear before the Director to give information (either orally or in writing), and produce those documents.

Subclause (2) makes it an offence to refuse, or fail, to comply with a notice, to the extent that a person is capable of complying with the notice; knowingly provide false or misleading information or evidence; or obstruct or hinder the Director in exercising a power under this clause. The maximum penalty that attaches to any of these offences is 20 penalty units.

Subclause (3) provides that a person is not excused from answering a question, providing information or producing or

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permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person. However, subclause (4) provides that a person's answer to a question asked in a notice under clause 125, or the provision of any information or production of a document in compliance with a clause 125 notice, is not admissible evidence against the person in proceedings other than proceedings under clause 125.

Subclause (5) provides that the Director may make copies of, or take extracts from, documents produced to the Director under clause 125, and may retain possession of them.

Subclause (6) provides that clause 127 of the Bill, which deals with the Director's powers in relation to documents, does not apply to documents produced under clause 125.

Clause 126 provides that the Director of Consumer Affairs Victoria may require, by written notice, a person believed to be capable of providing information, producing documents or giving evidence that relating to a matter that constitutes, or may constitute, a contravention of this Bill, to provide that information or produce those documents. A person may also be required to appear before the Director to give information (either orally or in writing), and produce those documents. Subclause (2) provides that a person may be required to give evidence on oath or affirmation. The Director or a person specified to be acting on the Director's behalf may administer the oath or affirmation.

Subclause (3) makes it an offence for a person to refuse, or fail, to comply with a notice under clause 126, to the extent that the person is capable of complying with the notice; knowingly provide false or misleading information or evidence; or obstruct or hinder the Director in exercising a power under clause 126. The maximum penalty that attaches to any of these offences is 60 penalty units.

Subclause (4) provides that 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. However, subclause (5) provides that a person's answer to a question asked in a notice under clause 126, or the provision of any information or production of a document in compliance with a clause 126 notice, is not admissible evidence

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against the person in proceedings other than proceedings under clause 126, or in the case of a body corporate, in any criminal proceedings other than proceedings under this Bill.

Clause 127 provides that the Director of Consumer Affairs Victoria may inspect and copy (or take extracts of) documents produced to the Director under this Division; seize the documents if considered necessary for obtaining evidence for the purposes of proceedings against a person or to prevent their concealment, loss or destruction; secure seized documents against interference; and retain possession of seized documents.

Clause 128 requires the Director of Consumer Affairs Victoria to give a certified copy of a seized document to the person from whom the document was seized within 21 days of the seizure. A certified copy of a seized document must be received in evidence as evidence of equal validity to the original.

Clause 129 requires the Director of Consumer Affairs Victoria to take reasonable steps to return documents seized under this Division if the reason for the seizure no longer exists and to take reasonable steps to return them in any case after 3 months unless within that 3 months proceedings have been commenced but not yet completed or the court has extended the period for retention under clause 130 of this Bill.

Clause 130 allows the Director of Consumer Affairs Victoria to apply to the Magistrates' Court for 3 month extensions of the period for which the Director may retain a seized document, with a maximum retention period of 12 months.

Subclause (2) provides that the Magistrates' Court may order an extension if satisfied that: the extension is in the interests of justice; the total retention period does not exceed 12 months; and retention of the document is necessary for the purposes of an investigation or to enable evidence to be obtained for a proceeding.

Subclause (3) makes it clear that the Magistrates' Court must consider the interests of the owner of the seized document or thing when considering an application under this clause.

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Clause 131 allows a person to complain to the Secretary to the Department of Justice about the Director of Consumer Affairs Victoria's exercise of a power under this Division.

Subclause (2) provides that the Secretary must investigate such a complaint and provide a written report on the investigation to the complainant.

Clause 132 provides for the mode of service of documents by the Director under this Division.

Subclause (2) deals with the mode of service of documents or information provided to the Director.

Clause 133 provides that the Director of Consumer Affairs Victoria may enter into, or approve of, an information sharing arrangement with a relevant agency for the purposes of sharing or exchanging information held by the Director and the relevant agency.

Subclause (2) places limits of the information to which an information sharing arrangement may relate.

Subclause (3) provides that, under an information sharing arrangement, the Director and the relevant agency are authorised to request and receive information from, and disclose information to, each other, but only to the extent reasonably necessary to assist in exercise of the Director's functions under this Bill or the functions of the relevant agency.

Subclause (4) clarifies that, without limiting subclause (3), the Director may refer to, or receive from, a fair trading agency or law enforcement agency, any fair trading or consumer matter. The Director may conduct a joint investigation into such a matter with a fair trading or law enforcement agency.

Subclause (5) clarifies that, despite any other law of Victoria, any fair trading or law enforcement agency is authorised to refer a fair trading or consumer matter to the Director or to conduct a joint investigation into the matter with the Director.

Subclause (6) ensures that clause 133 does not limit the powers of the Director under this Part; the operation of another Act that authorises or requires a relevant agency to disclose information; or the giving of information to a court or tribunal, pursuant to a court or tribunal order, to law enforcement agencies, to the

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Business Licensing Authority, or with the authority of the Secretary or the person concerned

Subclause (7) defines the terms fair trading agency, law enforcement agency, and relevant agency for the purposes of clause 133.

Division 5—Victorian Consumer Law Fund

Clause 134 establishes the Victorian Consumer Law Fund.

Subclause (1) provides for the establishment of a Trust Fund under the Financial Management Act 1994, to be known as the Victorian Consumer Law Fund.

Subclause (2) provides for the following amounts and monies to be paid into the Fund—

any pecuniary penalty ordered by a court under section 224 of the Australian Consumer Law (Victoria) to be paid to the State;

any amount ordered by a court under section 239(1) of the Australian Consumer Law (Victoria) to be paid into the Fund;

amounts paid under section 86A of the Credit Act 1984;

amounts required under the Consumer Credit (Victoria) Act 1995 to be paid into the Consumer Credit Fund;

any other amount required under the Bill to be paid into the Fund;

money appropriated by the Parliament for the purposes of the Fund; and

interest received on money invested in the Fund.

Subclause (3) provides that money must not be paid out of the Fund except in accordance with this Part.

Subclause (4) provides that the Treasurer may invest money in the Fund in such matters as the Treasurer determines.

Clause 135 deals with orders for payment to non-party consumers.

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Subclause (1) provides that this clause applies if, on the application of the Director of Consumer Affairs Victoria, a court makes an order (a non-party order) under section 239(1) of the Australian Consumer Law (Victoria) for an amount or amounts to be paid into the Fund to provide for the payment of money to non-party consumers. In relation to applications made by a party other than the Director, it is intended that the relevant defendant would generally be responsible for making payments to non-party consumers who have been identified or are easily identifiable.

Subclause (2) provides that orders to provide for payment to non-party consumers must—

require a notice to be given to non-party consumers to the extent that is practicable and in the manner specified in the order;

specify the manner in which a non-party consumer may make a claim for payment from the Fund;

specify the criteria that must be satisfied before a payment is made from the Fund to a non-party consumer;

specify the day by which a non-party consumer may make a claim for payment from the Fund;

specify the final day (being a day not more than 3 years from the day money is paid into the Fund under the order) on which a payment from the Fund may be made to a non-party consumer;

specify the treatment of any money remaining on the final payment day from amounts paid into the Fund pursuant to the order, and the interest earned on those amounts. This may include the return of some or all of the remaining money to the person against whom the order is made; making some or all of the remaining money available for the purposes of clauses 136 and 137; or any other treatment that the court considers appropriate.

Subclause (3) provides that the court may specify that any amount paid into the Fund pursuant to the order may be applied to the costs of disbursing payments to non-party consumers made pursuant to the order.

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Subclause (4) provides that the Director is responsible for the distribution of money from the Fund to non-party consumers pursuant to a non-party order.

Subclause (5) provides that the distribution of money from the Fund to non-party consumers must be made in accordance with the non-party order and may only be made from the amount or amounts paid into the Fund pursuant to the order.

Clause 136 deals with special purpose grants and provides that the Minister for Consumer Affairs may, on the recommendation of the Director of Consumer Affairs Victoria, make payment out of the Fund for the purposes of—

improving consumer well-being, consumer protection or fair trading; or

any other purpose consistent with the objects of the Australian Consumer Law (Victoria).

Subclause (2) provides that a payment under subclause (1) may be made to the Director or to any other person or organisation.

Subclause (3) provides that a payment under subclause (1) may only be made from money paid into the Fund in the following circumstances—

pecuinary penalties paid into the Fund under clause 134(2)(a), and the interest earned on those payments;

money appropriated by the Parliament for the for the Fund and the interest earned on that money;

any money paid into the Fund pursuant to a non-party order remaining on the final payment day that the order has specified may be applied for the purposes of this clause.

Clause 137 deals with the administration expenses of the Victorian Consumer Law Fund.

Subclause (1) provides that the Director of Consumer Affairs Victoria may approve payment from the Fund for any reasonable expenses incurred in administering the Fund.

Subclause (2) provides that a payment under subclause (1) may only be made from the following money—

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pecuniary penalties paid into the Fund under clause 134(2)(a), and the interest earned on those payments;

money appropriated by the Parliament for the Fund and the interest earned on that money;

any money paid into the Fund pursuant to a non-party order that the order specifies may be applied to the cost of disbursing payments to non-party consumers, or any money paid into the Fund pursuant to a non-party order remaining on the final payment day and that the order has specified may be applied for the purposes of this section.

PART 6.3—CODES OF PRACTICE

Clause 138 provides that the Director of Consumer Affairs Victoria may, with the approval of the Minister for Consumer Affairs, prepare a draft code of practice for fair trading between a class of suppliers and any purchasers, or by a particular class of persons and a particular class of purchasers, or in relation to the supply of particular goods or services. The Director must prepare such a code where directed to do so by the Minister.

Clause 139 provides that if the Director of Consumer Affairs Victoria is satisfied that suppliers of goods and services (or persons associated with the supply of goods and services) have, in consultation with other interested persons, agreed to abide by a code of practice, the Director may submit the code to the Minister for Consumer Affairs for the Minister's consideration.

Clause 140 provides that the Minister for Consumer Affairs may recommend to the Governor in Council that the Governor in Council make regulations that prescribe a code of practice prepared and submitted to the Minister under clause 138 or submitted under clause 139. This clause further provides that the Minister may recommend that the Governor in Council make regulations prescribing the code, with amendments made by the Minister.

Clause 141 provides that it is an offence not to comply with a code of practice prescribed by the Governor in Council under clause 140. The maximum penalty that attaches to this offence is 20 penalty units.

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PART 6.4—INSPECTION POWERS

Division 1—Inspectors

Clause 142 provides for the appointment of inspectors by the Director of Consumer Affairs Victoria.

Subclause (1) sets out the categories of individuals that the Director may appoint as an inspector.

Subclause (2) provides that the appointment of an inspector must be made by instrument.

Subclause (3) provides that the Director must not appoint a person as an inspector unless the Director is satisfied of that the person is appropriately qualified or has successfully completed appropriate training.

Subclause (4) provides that an inspector appointed by the Director under subclause (1) may also be appointed as an inspector in another State under an interstate Act. The term interstate Act is defined in subclause (5).

Clause 143 provides that the Director of Consumer Affairs Victoria must issue identification to each inspector, and that identification must contain a photograph of that inspector.

Clause 144 provides that an inspector must produce his or her identification before excising any power under this Part and at any time during the exercise of a power under this Part, if requested to do so. It is an offence, attracting a maximum penalty of 10 penalty units, for an inspector not to comply with this clause. However, an inspector is not required to produce his or her identification when inspecting premises open to the public or when making a requirement by post.

Division 2—Requirements to produce information

Clause 145 provides that an inspector may seek a court order.

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Subclauses (1) and (2) provide that an inspector may, with the written approval of the Director of Consumer Affairs Victoria, apply to the Magistrates' Court for an order requiring a person who the inspector reasonably believes may have contravened this Bill or the regulations to answer questions, provide information or produce documents in relation to the alleged contravention.

Subclause (3) provides that the Magistrates' Court may grant an order sought under subclause (1) if it is satisfied there are reasonable grounds to believe that a person or persons may have contravened this Bill or the regulations.

Subclause (4) provides that the Magistrates' Court, when making an order, must specify a day, not later than 28 days after the making of the order, on which the order ceases to have effect.

Clause 146 sets out what an inspector may do with documents produced to the inspector under an order made under clause 145. An inspector may inspect, copy, seize, secure or retain possession of any documents provided. However, an inspector may also seize documents if he or she believes it is necessary for the purpose of obtaining evidence for the purpose of any proceedings under the Bill or regulations (or any other Consumer Act or regulations made under such an Act).

Clause 147 provides that an inspector must, as soon as practicable after executing an order under this Division, notify the Magistrates' Court in writing of the listed information.

Subclause (2) provides that the Magistrates' Court may direct an inspector to bring before the Court any document seized under clause 146(1)(c).

Subclause (3) provides that the Magistrates' Court may direct that a document brought before it under subclause (2) is to be returned to its owner if this is consistent with the interests of justice. Such a direction may be subject to any condition imposed by the Court.

Clause 148 provides that the Director of Consumer Affairs Victoria, or an inspector (with the written approval of the Director), may require a publisher of information to produce specified information to the Director or the inspector for the purpose

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of monitoring compliance with this Bill or the regulations. The information which the Director or an inspector may require a publisher to produce is information with is required to be kept by the publisher under this Bill or the regulations, or which has been published by the publisher. Subclause (3) makes it clear that information must be produced in the form in which it is retained by the publisher. The term publisher is defined in subclause (4).

Division 3—Entry and search of premises with consent

Clause 149 provides that an inspector may enter or search a premises with the consent of the occupier of the premises.

Subclause (1) provides that if an inspector believes on reasonable grounds that a person has contravened this Bill or the regulations, the inspector may, with the occupier's consent, enter and search the premises and exercise a power referred to in subclauses (2) and (3) of clause 149 of the Bill.

Subclause (2) provides that, when entering a premises with the consent of an occupier, an inspector may seize any thing the inspector finds on the premise, or examine, take and keep samples of any goods the inspector finds on the premises, if the inspector believes on reasonable grounds that the goods are connected with the alleged contravention. In the case of any document on the premises, an inspector may: require the document to be produced for examination; examine, make copies or take extracts from the document (or arrange for copies to be made or extracts taken); and remove the document for as long as reasonably necessary to make copies or take extracts.

Subclause (3) provides that an inspector may make any still or moving image or audio-visual recording if the inspector reasonably believes it is necessary to do so for the purpose of establishing the alleged contravention.

Clause 150 provides that an inspector must not enter and search a premises under clause 149 unless, before the occupier has consented to the entry and search, the inspector has produced his or her identification and informed the occupier of the purpose of the search, and that the occupier may refuse to consent to the entry and search, or to the seizure of anything found during the search, as well as the taking of any sample of goods or any copy or extract from a document found during the search.

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An occupier must also be informed that anything seized or taken with consent may be used as evidence.

Clause 151 provides that before an inspector enters and searches premises under clause 149 of the Bill, the inspector must ask the occupier to sign an acknowledgment.

Subclause (2) sets out what an acknowledgement for the purposes of subclause (1) must contain. The acknowledgement must state: the purpose of the search; that the occupier may refuse to give consent to the entry and search, or to the seizure of anything or the taking of any sample of goods or any copy or extract from a document; and that anything seized or taken with the occupier's consent may be used as evidence. The acknowledgement must also state that the occupier has consented to the entry and search, and the date and time of that consent.

Subclause (3) provides that if the occupier consents to the inspector seizing or taking anything from the premises during the search, before seizing or taking the thing, the inspector must ask the occupier to sign an acknowledgment.

Subclause (4) provides that an acknowledgement for the purposes of subclause (3) must state that the occupier has consented to the seizure or taking of the thing, and the date and time of that consent.

Subclause (5) provides that the inspector must give a copy of a signed acknowledgement to the occupier before leaving the premises.

Subclause (6) provides that if, in any proceeding, a signed acknowledgement is not produced to the court or tribunal, it is to 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.

Division 4—Entry and search of premises without consent

Clause 152 allows an inspector to enter and inspect any part of a premises that is, at the time of entry and inspection, open to the public.

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Clause 153 provides inspectors with certain emergency entry powers.

Subclause (1) enables an inspector to enter and search any premises at any time, if the inspector reasonably believes that there is evidence of goods being supplied from the premises which are dangerous if used or which are being supplied in contravention of an interim or permanent ban.

Subclause (2) provides that an inspector may receive assistance in exercising powers under subsection (1) from another inspector, police or any other person necessary to provide the inspector with technical assistance.

Clause 154 sets out an inspector's powers during emergency entry.

Subclause (1) provides that if, during an emergency entry an inspector reasonably believes that goods being supplied from the premises present a threat of imminent injury or death, the inspector may seize the goods; secure the goods against interference; require the occupier to remove the goods; and examine, take and keep samples of the goods.

Subclause (2) provides that the inspector may undertake certain actions in relation to documents on the premises if the inspector reasonably believes that it is necessary to do so, including: examine, copy or take extracts from the document (or arrange for this to be done); or remove the document in order to make copies or take extracts. An inspector may also make any still or moving image or audio-visual recording.

Subclause (3) provides that if an inspector finds goods during an emergency entry which the inspector believes do not present a threat of imminent injury or death, the inspector may issue a notice prohibiting the removal. The notice may be given to the occupier of the premises or the person presumed to have control over the business or may be affixed to the goods.

Subclause (4) provides that certain provisions relating to embargo notices also extend and apply to a notice given under subclause (3).

Subclause (5) provides that a notice under subclause (3) ceases to have effect at the end of 72 hours after the notice is given or affixed.

Subclause (6) provides that if an inspector exercises a power of entry under this clause in the absence of the owner or occupier

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the inspector must leave a notice setting out certain details about the entry and the procedure for contacting the Director for further details of the entry.

Subclause (7) provides that it is an offence to remove goods from premises in contravention of a notice under this clause.

Clause 155 enables an inspector to enter premises without consent or a search warrant in certain circumstances.

Subclause (1) sets out that an inspector may enter and search any premises for the purposes of monitoring compliance with this Bill or the regulations, or an order made by a court or tribunal under this Bill or the regulations, at which the inspector believes on reasonable grounds a person is conducting a business or supplying goods or services; or a person is keeping a record or document that is required to be kept under the Bill and may indicate compliance.

Subclause (2) sets out the powers of an inspector under this clause, including certain powers to examine, seize and secure things found on the premises, take and keep samples, and examine and test equipment that is of a kind used in connection with the supply of goods and services.

Subclause (3) provides that a power under this clause must not be exercise in any part of the premises that is used for residential purposes and can only be exercised between the hours of 9 a.m. to 5 p.m., or when the premises are open for business.

Subclause (4) provides that if an inspector exercises a power of entry under this clause in the absence of the owner or occupier the inspector must leave a notice setting out certain details about the entry and the procedure for contacting the Director for further details of the entry.

Clause 156 enables an inspector to use electronic equipment found at premises when acting under clause 155.

Subclause (1) provides that if an inspector finds an information storage device and equipment to access the device and the inspector believes on reasonable grounds that information stored on that device may be relevant to whether this Bill or the regulations have been complied with, the inspector may operate that device, or require the occupier of the premises or the

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occupier's employee to operate the device, so as to access the information.

Subclause (2) provides that if an inspector believes that an information storage device at the premises is used in the transmission of information relevant to determine compliance with this Bill or the regulations, the inspector may put the information into documentary form and seize those documents, copy the information to another storage device or, if it is not practicable to put the information in a documentary form or copy the information, seize the information storage device and the equipment that enables the information to be accessed.

Subclause (3) provides that an inspector must not operate or seize equipment under this clause unless the inspector believes on reasonable grounds that the operation can be carried out without damage to the equipment.

Division 5—Entry and search of premises with warrant

Clause 157 enables an inspector to apply to the Magistrates' Court for a search warrant in relation to particular premises.

Subclause (1) enables an inspector to apply to the Magistrates' Court for the issue of a search warrant if the inspector believes on reasonable grounds that there is evidence on the premises that a person may have contravened this Bill or the regulations.

Subclause (2) requires that an application for a search warrant have the written approval of the Director of Consumer Affairs Victoria.

Subclause (3) enables a magistrate to issue such a search warrant in accordance with the Magistrates' Court Act 1989 if satisfied by the evidence.

Clause 158 sets out the form and content of a search warrant issued under clause 157(3).

Subclause (1) provides that a search warrant may authorise an inspector named in the warrant to enter specified premises, by force if necessary and in relation to particular things named or described in the warrant, search for, seize, secure against interference, examine, inspect and take and keep samples of the thing; or in the case of a document, require the document to be produced for inspection, examine, make copies or take extracts

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from the document or remove the document in order to make copies or take extracts; or make a still or moving image or visual recording of anything of a particular kind named or described in the warrant.

Subclause (2) provides that a search warrant may authorise any other another person, in addition to an inspector, to execute the warrant.

Subclause (3) sets out particular things that must be stated in the search warrant, including its purposes, any conditions to which the warrant is subject, whether entry is authorised for a specified time or any time of the day or night, and the day on which the warrant ceases to have effect.

Subclause (4) provides that a search warrant issued under the Bill must be issued in accordance with Magistrates' Court Act 1989 and the rules that apply to search warrants under that Act extend and apply to a search warrant issued under the Bill.

Clause 159 provides that before executing a search warrant under clause 157(3), the inspector named in the warrant must announce that he or she is authorised by the warrant to enter the premises, and if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry. However, an inspector is not required to comply with these requirements if the inspector believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated.

Clause 160 provides that an inspector, when executing a search warrant, must identify himself or herself to the occupier of the premises and provide the occupier with a copy of the warrant, or if the occupier is not present, any other person who is present at the premises, and give that person a copy of the warrant.

Clause 161 provides that a search warrant issued under clause 157(3) authorises an inspector named in the warrant to seize or take a sample of things not described in the warrant if the inspector believes on reasonable grounds that the thing is of a kind that could have been included in a search warrant issued under this Part, or will afford evidence about the contravention of any Consumer Act; and in the case of seizure, that seizing the item is necessary in order to prevent its concealment, loss, or

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destruction or its use in the contravention of this Bill or any other Consumer Act.

Division 6—Embargo notices

Clause 162 enables an inspector executing a search warrant authorising the seizure of any thing to issue an embargo notice if the thing cannot, or cannot readily, by physically seized and removed.

Subclauses (2) and (3) set out how the embargo notice is to be issued, and that the notice must be in the prescribed form.

Subclause (4) provides that it is an offence to which a maximum penalty of 60 penalty units applies, for a person who knows that an embargo notice relates to a thing, to sell, lease, move without consent, transfer or otherwise deal with that thing.

Subclause (5) provides that it is a defence to a prosecution for an offence against subsection (4) to prove that the accused moved the thing for the purposes of protecting and preserving it.

Subclause (6) provides that despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of this section is void.

Clause 163 enables an inspector, for the purpose of monitoring compliance with clause 162(4), to apply to the Magistrates' Court for an order requiring the owner of the thing to which the embargo notice relates or the occupier of the premises where the thing is kept to answer questions or produce documents at a time and place specified by the inspector for the purpose of monitoring compliance with the embargo notice.

Subclause (2) provides that an application must be made with the written approval of the Director of Consumer Affairs Victoria.

Subclause (3) allows the Magistrates' Court to make such an order if it is satisfied that it is necessary for the purpose of monitoring compliance with clause 162(4).

Clause 164 enables an inspector to apply to the Magistrates' Court for a search warrant permitting entry to premises where a thing

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subject to an embargo notice is being kept for the purpose of monitoring compliance with a relevant provision or order.

Subclause (2) provides that an application must be made with the written approval of the Director of Consumer Affairs Victoria.

Subclause (3) allows the Magistrates' Court to issue the search warrant in accordance with the Magistrates' Court Act 1989 if satisfied by the evidence.

Subclause (4) defines relevant provision or order for the purpose of this clause.

Clause 165 sets out the required form and content of search warrants issued under clause 164(3).

Subclause (1) provides that a search warrant issued under clause 164(3) may authorise an inspector named in the warrant to enter specified premises, if necessary by force.

Subclause (2) provides that a search warrant issued under clause 164(3) may authorise an inspector to search for, seize and secure against interference the thing named in the warrant and test the thing to determine whether it complies with relevant bans and standards.

Subclause (3) provides that a search warrant in relation to an embargo notice may authorise any other another person, in addition to an inspector, to execute the warrant.

Subclause (4) states that the requirements for announcement before entry under clause 159 and providing details of the warrant under clause 160 extend to search warrants issued under clause 164(3).

Subclause (5) states that except as provided by the Bill, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under clause 164(3).

Division 7—Documents

Clause 166 provides that if an inspector retains possession of a document seized from a person, the inspector must provide that person with a certified copy of that document within 21 days of the

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seizure and that a certified copy is to be received in all courts and tribunals as evidence of equal validity to the original.

Clause 167 provides for the retention and return of seized documents or things.

Subclause (1) provides that if an inspector seizes a document or other thing under this Part, the inspector must take reasonable steps to return the document to the person from whom it was seized if the reason for its seizure no longer exists.

Subclause (2) provides that if the document or thing has not been returned within 3 months, the inspector must take reasonable steps to return it unless proceedings for which the item was retained have commenced and have not been completed; or the Magistrates' Court makes an order under clause 168 extending the period of time the thing can be retained for; or a court makes an order under clause 174 for the destruction of the thing.

Subclause (3) provides that this clause does not apply to a sample taken by an inspector.

Clause 168 enables an inspector to apply to the Magistrates' Court for an order to extend the period for which an inspector may retain a seized item. The order for an extension must not exceed 3 months.

Subclause (2) requires that an application for such an order must be made within 3 months of the seizure or if an extension has been granted under this clause, before the end of the period of the extension.

Subclause (3) allows the Magistrates' Court to make such an order if it is satisfied that it is in the interests of justice, the total period of retention does not exceed 12 months and retention of the document is necessary for the purposes of an investigation or to enable evidence of a contravention to be obtained.

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Subclause (4) provides that notice of the application must be sent to the owner of the seized document or thing at least 7 days prior to the hearing of an application.

Division 8—Offences

Clause 169 provides that it is an offence for a person, without reasonable excuse, to refuse or fail to comply with a requirement of the Director of Consumer Affairs Victoria or an inspector under this Part. The maximum penalty for this offence is 60 penalty units.

Clause 170 provides for a limited protection against self-incrimination for natural persons under this Part.

Subclause (1) provides that it is a reasonable excuse for a person to refuse or fail to give information or do any other thing that the person may be required to do under this Part on the ground of self-incrimination.

Subclause (2) provides that despite the protection against self-incrimination afforded in subclause (1) a person cannot rely on the protection against self-incrimination in relation to the production of documents that the person may be required to produce.

Clause 171 provides for offences, attracting a maximum penalty of 60 penalty units, for the giving of false or misleading information or the production of false or misleading documents.

Clause 172 provides that it is an offence to hinder or obstruct an inspector who is exercising a power under this Part. The maximum penalty for this offence is 60 penalty units.

Clause 173 provides that it is an offence to impersonate an inspector. The maximum penalty for this offence is 60 penalty units.

Division 9—Miscellaneous

Clause 174 provides powers to the courts to order the destruction of dangerous goods upon application of the Director of Consumer Affairs Victoria.

Subclause (1) enables the Director to apply to a court for an order permitting the destruction of goods seized by an inspector

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if the goods are subject to a safety standard, an interim ban or a permanent ban.

Subclause (2) provides the court to which the application is made to make an order permitting the destruction of the goods and make any other orders it considers to be appropriate including orders relating to the costs of destroying the goods.

Subclause (3) provides that notice of an application under this clause must be sent to the owner of the goods at least 7 days prior to the hearing of the application.

Clause 175 provides for the taking of samples by inspectors.

Subclause (1) provides that if an inspector proposes to take a sample, the inspector must advise the person in possession of the sample why the sample is being taken.

Subclause (2) provides that, on request, the inspector must give part of the sample to the person from whom it was taken.

Subclause (3) provides if a sample is taken, the inspector must return the sample within 28 days if the sample is not required for the purpose of proceedings under this Act or any other Consumer Act.

Clause 176 requires an inspector who has exercised a power of entry to provide a report to the Director of Consumer Affairs Victoria within 7 days after the entry, setting out relevant details, including the time and place of the entry, the purpose of the entry, a description of activity while on the premises and the time of departure.

Clause 177 provides than an inspector may require the occupier of a premises, or their agent, to give information, produce documents and give reasonable assistance to the inspector.

Clause 178 requires the Director of Consumer Affairs Victoria to keep a register containing the particulars of all matters reported to the Director under clause 176.

Clause 179 provides that any person may complain to the Director of Consumer Affairs Victoria about the exercise of a power by an inspector. The Director must investigate and provide a written report in relation to each complaint.

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Clause 180 sets out requirements relating to the service of documents by an inspector, as well as how the provision of documents or information to an inspector may occur.

Clause 181 provides that it is an offence attracting a maximum penalty of 60 penalty units for an inspector to disclose any information obtained in carrying out his or her functions under this Part to any other person.

Subclause (2) provides that the offence under subclause (1) does not apply to information disclosed in the following circumstances: in carrying out of an inspector's functions; to a court or tribunal in the course of legal proceedings; under a court or tribunal order; as part of an investigation; to the Business Licensing Authority; with the written authority of the Director; or with the written authority of the person to whom the information relates.

CHAPTER 7—FUNCTIONS OF VCATThis Chapter re-enacts Part 9 of the Fair Trading Act 1999.

Clause 182 sets out what constitutes a consumer and trader dispute for the purposes of this Chapter.

Subclause (1) defines consumer and trader dispute as a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possibly supply of goods or services.

Subclause (2) provides that a consumer and trader dispute includes a dispute or claim involving negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but does not include a dispute or claim related to a personal injury.

Subclause (3) provides that a consumer and trader dispute may include a claim related to a personal injury claim provided the claim does not exceed $10 000 and the claim relates to the supply or possible supply of goods or services which is the subject of a related consumer and trader dispute.

Clause 183 defines small claim for the purposes of this Chapter, as being a consumer and trader dispute relating to a claim for payment of money or performance of work of a value not exceeding

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$10 000 or if another amount is prescribed, that amount. The claim must arise out of a contract for the supply of goods or the provision of services other than a contract for life insurance.

Clause 184 provides that VCAT may hear and determine a consumer and trader dispute, and sets out VCAT's powers in relation to such disputes, including, amongst other things, referring a dispute to a mediator, ordering the payment of money including damages, orders in relation to contracts including varying terms, declaring terms to be void and ordering the rescission or rectification of a contract.

VCAT may also make orders in relation to the possession of land. However, this power may only be exercised by a judicial member of VCAT.

Subclause (4) provides that in awarding damages in the nature of interest VCAT may base the amount awarded on the interest rate fixed under the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

Clause 185 provides VCAT with additional powers to make orders to avoid injustice in determining a dispute.

Subclause (1) provides that, in addition to the powers listed in clause 184, in determining a consumer dispute or a trader-trader dispute, VCAT may make any order it considers fair including declaring any unjust contract terms void or otherwise varying a contract.

Subclause (2) sets out considerations VCAT may have regard to in determining whether a term of a contract is unjust, including, amongst other things, the extent to which the term was explained and understood before the term was agreed to; the relative bargaining power of the parties; the consequences of complying with the term and the relative hardship of those consequences; and the conduct of the parties.

Subclause (3) provides that VCAT must not take into account anything arising from circumstances that were not reasonably foreseeable when the term was agreed to when determining whether a contract is unjust.

Subclause (4) defines consumer dispute and trader-trader dispute for the purpose of this clause.

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Clause 186 provides that only a party to a dispute, or the Director of Consumer Affairs Victoria acting on behalf of one or more parties to a dispute, may ask VCAT to resolve a consumer and trader dispute.

Clause 187 provides that if proceedings regarding a fair trading dispute or other matter under the Fair Trading Act over which the Victorian Civil and Administrative Tribunal has jurisdiction, are commenced first in VCAT and are not struck out or withdrawn, the dispute is not justiciable by a court unless the proceeding in that court was commenced before the application to VCAT was made and that proceeding is still pending or VCAT refers the proceeding to that court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.

Clause 188 provides that if proceedings regarding a fair trading dispute are first commenced in a court, the court must stay the proceedings if they could be more appropriately dealt with by VCAT, including if a party could obtain a material advantage in VCAT, for example, if it would be cheaper or quicker, provided that it is not outweighed by any material disadvantage suffered by another party if the dispute goes to VCAT. Where the court stays proceedings, a party may apply to the VCAT for an order in relation to the proceedings, whereupon the VCAT must notify the court, which must dismiss the proceedings, except where VCAT has exercised its power to refer the matter to the court.

The variation by clauses 187 and 188 to section 85 of the Constitution Act 1975 allows the parties to a fair trading dispute a choice of fora in which to litigate and ensures that a party wishing to take advantage of the benefits offered by VCAT is not unfairly frustrated by another party commencing proceedings in a court merely as a tactical manoeuvre to put pressure on the other side to settle disadvantageously or to abandon the proceedings.

Subclause (1) provides that this clause applies if a person commences proceedings in a court and the proceedings arise wholly or predominately from a consumer and trader dispute or are other proceedings for which VCAT has jurisdiction under this Bill.

Subclause (2) provides that the court must stay the proceedings if VCAT could hear the proceedings and the court is satisfied

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that the proceedings would be more appropriately dealt with by VCAT.

Subclause (3) sets out what a court must consider in determining whether proceedings would be more appropriately dealt with by VCAT, including whether a party is reasonably likely to gain a material advantage if the proceedings are determined by VCAT and whether that advantage is outweighed by a material disadvantage to the other party if the proceedings were determined by VCAT.

Subclause (4) provides that any party to the stayed proceedings may apply to VCAT for an order with respect to the dispute or matter on which the proceedings were based.

Subclause (5) provides that where an application is made under subclause (4), VCAT must notify the court and the court must dismiss the proceedings. However, subclause (6) provides that the requirement under subclause (5) does not apply if VCAT refers the matter to the court under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998.

Clause 189 provides that where a consumer who is in dispute with a trader over a "small claim" makes an application to VCAT to hear the claim and lodges the amount in dispute with VCAT, VCAT has exclusive jurisdiction over the claim and that any proceedings by the trader in a court in respect of the claim be dismissed. This is to ensure that VCAT is retained as the only forum for dealing with claims that would formerly have been made to it under the Fair Trading Act 1999. Clause 189 also sets out a procedure for a consumer to lodge the amount in dispute with VCAT.

Clause 189 allocates VCAT as the only forum able to deal with small claims is because it is intended to have an informal, low-cost procedure to deal with such claims, without, for instance, the expense involved in having legal representation. It is considered critical to keep costs at a minimum to ensure that the benefit of any judgment is not effectively rendered useless by the costs involved. That intention is frustrated if small claims can be taken to the courts.

Clause 189 requires a court to dismiss proceedings in certain circumstances.

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Subclause (1) provides that this clause only applies if a supplier or a person acting on his or her behalf commences court proceedings which arise wholly or predominantly from a small claim.

Subclause (2) provides that the court must dismiss the proceedings if the court has not yet commenced to hear the matter, the purchaser has applied to VCAT to have the matter heard and determined by VCAT, and the purchaser has lodged with VCAT the total amount sought by the supplier or the amount outstanding, as the case may be, and VCAT has notified the court of those details.

Subclause (3) provides that if the court dismisses the proceedings, the court must not make an order as to costs for the dismissed proceedings.

Clause 190 establishes the Small Claims Suspense Account.

Subclause (1) requires the principal registrar of VCAT to keep a Small Claims Suspense Account and pay into that account all money lodged by purchasers with VCAT under clause 189(2).

Subclause (2) enables the principal registrar to deal with the money lodged in the Small Claims Suspense Account in accordance with orders made by VCAT with respect to money in that account; or in cases where no final orders are made this subclause provides for money to be returned to the person who paid it or to their representatives.

Clause 191 provides that if a consumer or trader dispute involves a failure or alleged failure of a supplier to comply with the Bill or any other Act, VCAT may make orders to resolve a dispute regardless of the outcomes of related criminal proceedings.

Clause 192 provides that a person may apply to VCAT for an order requiring the Director of Consumer Affairs Victoria to provide certain information about suppliers who details are not contained on any public registers, and enables VCAT to make such orders if it is satisfied that, in all the circumstances, it is just and convenient to do so.

CHAPTER 8—ENFORCEMENT AND REMEDIESThis Chapter re-enacts Part 11 of the Fair Trading Act 1999 and sets out enforcement powers and remedies available under this Bill.

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PART 8.1—GENERAL ENFORCEMENT PROVISIONS

Clause 193 provides that a prosecution for an offence under this Bill may be commenced not more than 3 years after the offence was committed. This is despite section 7 of the Criminal Procedure Act 2009 which generally provides that a proceeding for a summary offence must be commenced within 12 months of the offence being committed and that proceedings for indictable offences may be commenced at any time.

Clause 194 clarifies that only the Director of Consumer Affairs Victoria or a person authorised by the Director can bring summary proceedings for an offence against the Bill or a Consumer Act (or regulations made under the Bill or Consumer Act), unless a Consumer Act makes express provision as to who may bring proceedings for offences against that Act or its regulations. In proceedings for an offence it is to be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings is authorised to do so.

Clause 195 provides that, in the event that a body corporate contravenes or commits an offence against a provision of the Bill, each officer of the body corporate will be deemed to have contravened the same provision if he or she knowingly authorised or permitted the contravention. This clause is intended to prevent further problems in interpretation of the sort that arose in the case Astvilla Ptd Ltd v Director of Consumer Affairs Victoria [2006] VSC 289 and thereby allow injunctions to be obtained in a broader range of situations. It should be noted that section 38 of the Interpretation of Legislation Act 1984 defines "contravention" to include a failure to comply with an Act or subordinate instrument or provision, unless the contrary intention appears.

Subclause (2) provides that a person may be proceeded against and in the case of an offence convicted under a provision in accordance with clause 195(1) whether or not the body corporate has been proceeded against under that provision. Subclause (3) provides that nothing in clause 195 affects any liability imposed on a body corporate for a contravention of the Bill by the body corporate.

Clause 196 imputes liability to principals (corporations and employers) for the actions of officers, employees and agents. This clause is

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modelled on sections 139B and 139C of the Competition and Consumer Act 2010 of the Commonwealth and is also similar in structure to section 95 of the Fair Trading Act 1989 of Queensland and section 87A of the Fair Trading Act 1987 of New South Wales. This clause is intended to promote consistent enforcement outcomes with respect to the Australian Consumer Law.

Subclause (1) provides that, if it is necessary to establish a body corporate's state of mind for the purposes of a proceeding under this Bill in respect of conduct to which this Bill applies, it is sufficient to show that an officer, employee or agent of the body corporate engaged in that conduct within the scope of their actual or apparent authority, and the officer, employee or agent had the state of mind.

Subclause (2) imputes liability for the conduct of certain classes of people to the body corporate. Conduct by an officer, employee or agent of a body corporate acting within their actual or apparent authority is taken to be conduct engaged in by the body corporate. Similarly, conduct of any other person is taken to be conduct of the body corporate where that person acts at the direction of an officer, employee or agent of the body corporate, or with the consent or agreement of that officer, employee or agent where the officer, employee or agent has actual or apparent authority to give the direction, consent or agreement.

Subclause (3) establishes the state of mind for a person other than a body corporate who is a principal. To establish the state of mind of the principal it is sufficient to show that an employee or agent of the principal engaged in conduct within the scope of the employee or agent's actual or apparent authority, and that the employee or agent had the state of mind.

Subclause (4) imputes liability for the conduct of certain classes of people to a principal. Conduct by an employee or agent of the principal acting within their actual or apparent authority is taken to be conduct of the principal. The conduct of any other person is taken to be conduct of the principal where that person acts at the direction of an employee or agent of the principal, or with the consent or agreement of that employee or agent where

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the employee or agent has actual or apparent authority to give the direction, consent or agreement.

Subclause (5) provides that if a person other than a body corporate is convicted of an offence and but for subclauses (3) and (4) of clause 196 the person would not have been convicted of the offence, the person is not liable to be punished by imprisonment for the offence.

Subclause (6) provides that, for the purposes of clause 196, a reference to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.

PART 8.2—REMEDIES AND LEGAL PROCEEDINGS

Clause 197 is an interpretative provision. It sets out what a reference to "a person involved in a contravention of this Act" means for the purposes of Part 8.2 of the Bill.

Clause 198 provides that the Director of Consumer Affairs Victoria may accept a written undertaken given by a person in connection with a matter in relation to which the Director has a power or function under this Bill or a matter relating to a contravention of any other Consumer Act.

Subclause (2) provides that with the consent of the Director, a person may vary or withdraw an undertaking at any time.

Subclause (3) provides that the Director, with the consent of the person who gave the undertaking, may apply to the Magistrates' Court for an order directing the person to comply with the undertaking.

Subclause (4) provides that the Magistrates' Court may make an order directing a person to comply with an undertaking on an application under subclause (3).

Subclause (5) provides that if the Director considers that the person who gave the undertaking has breached any of its terms, the Director may apply to the Magistrates' Court for an order under subclause (6).

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Subclause (6) provides that if the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders: orders directing the person to comply with the term of the undertaking; orders directing the person to pay to the State an amount (not exceeding the financial benefit obtained) that is reasonably attributable to the breach; orders directing the person to compensate another person for loss, injury or damage suffered as a result of the breach; and any other orders the Court considers appropriate.

Subclause (7) provides that if a body corporate is found to have breached an undertaking, each officer of the body corporate may be found liable for the breach, and the Magistrates' Court may make orders against each officer of the body corporate.

Clause 199 provides that the Director of Consumer Affairs Victoria must give a copy of an undertaking under clause 198 of the Bill or section 218 of the Australian Consumer Law (Victoria) to the person who made the undertaking.

Clause 200 provides that the Director of Consumer Affairs Victoria must maintain a register of undertakings. The register must include the name and address of the person who has given an undertaking, as well as the date, and a copy, of the undertaking. The register may be inspected, without charge, by any person at any reasonable time.

Clause 201 allows the Minister for Consumer Affairs, the Director of Consumer Affairs Victoria or any other person to apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person who has: contravened; attempted or conspired to contravene; aided, abetted, counselled or procured a person to contravene; induced or attempted to induce a person to contravene; or been directly or indirectly knowingly concerned in or party to the contravention of a provision of the Bill.

Subclause (2) sets out what the Court needs to consider in deciding whether to grant an injunction under this clause.

Subclause (3) allows for an application for an injunction under this clause to be made without the party to whom the proposed injunction will apply being present in Court or having been notified of the application.

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Clause 202 allows the Minister for Consumer Affairs, the Director of Consumer Affairs Victoria or any other person to apply to the Supreme Court or the County Court for the grant of an injunction requiring a person who has: contravened; attempted or conspired to contravene; aided, abetted, counselled or procured a person to contravene; induced or attempted to induce a person to contravene; or been directly or indirectly knowingly concerned in or party to the contravention of a provision of the Bill.

Subclause (2) sets out what the Court needs to consider in deciding whether to grant an injunction under this clause.

Subclause (3) provides that, without limiting subclause (1), an injunction under clause 202 may require a person to: institute a training program for the person's employees (in relation to compliance with the Bill); refund money to purchasers; transfer property to purchasers; disclose information about the person's business activities or associates; honour a promise made in the course of misleading or deceptive conduct or false representations; and destroy or dispose of certain goods.

Subclause (4) provides that only the Supreme Court may grant an injunction under this clause requiring a person to transfer an interest in land.

Subclause (5) allows for an application for an injunction under this clause to be made without the party to whom the proposed injunction will apply being present in Court or having been notified of the application.

Clause 203 sets out the power of particular Courts to grant interim injunctions.

Subclause (1) provides that the Supreme Court, County Court or Magistrates' Court may grant an interim injunction pending determination of an application under clause 201, if, in the opinion of the Court, it is desirable to do so. Subclause (2) provides that the Supreme Court or County Court may grant an interim injunction pending determination of an application under section 202.

Subclause (3) allows for an application for an interim injunction under this clause to be made without the party who the proposed injunction will apply to being present in Court.

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Clause 204 enables a court to rescind or vary injunctions granted by it under clauses 201 or 202 or interim injunctions granted under clause 203.

Clause 205 provides for the granting of cease trading injunctions

Subclause (1) enables the Minister or the Director to apply to the Supreme Court for an injunction restraining a person from carrying on business supplying goods or services if the person is or has been engaging in certain conduct that would result in a contravention of the Bill.

Subclause (2) empowers the Supreme Court to grant the injunction if the Court is satisfied that the person is or has been engaging in the conduct and there is an imminent danger of substantial damage to any person as a result of the conduct; or if the Court determines it to be appropriate, by consent of all parties, irrespective of whether the person was engaging in the conduct.

Subclause (3) provides for an injunction to be granted for a specified time and subject to specified terms and conditions.

Clause 206 empowers the Supreme Court to grant interim cease trading injunctions pending determination of an application under clause 205 in circumstances where the Court believes it is desirable to do so and it appears that the person intends to engage in the contravening conduct and there is an imminent danger of substantial damage to any person as a result.

Clause 207 enables the Supreme Court to vary or rescind injunctions granted under clauses 205 and 206.

Clause 208 sets out requirements in relation to undertakings as to damages or costs.

Subclause (1) provides that a court must accept an undertaking given by the Minister or the Director in relation to an application under clauses 201, 202 or 203 of the Bill or section 232 of the Australian Consumer Law (Victoria) on behalf of a person that would otherwise be required to give an undertaking.

Subclause (2) provides that if in the course of an application for an injunction under clauses 202 or 203 of the Bill or section 232 of the Australian Consumer Law (Victoria), an interim

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injunction was granted, the Court must not as a condition of granting that injunction, require any undertaking to be given as to damages or costs.

Clause 209 empowers the Director of Consumer Affairs or an inspector to certify a failure to comply with a requirement to the court in certain circumstances.

Subclause (1) provides that if the Director is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under clauses 125, 126 or 148, the Director may certify that failure to the court.

Subclause (2) provides that if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under clauses 148 or 177, the inspector may certify that failure to the court.

However, subclauses (1) and (2) are subject to subclause (3) which states that the Director or an inspector cannot certify a failure to a court if the person to whom the failure relates has been charged with an offence against clause 125(2), 126(3) or 169. These are offences for refusing or failing to comply with notices or requirements of the Director or an inspector.

Subclause (4) enables the court to inquire into a case following certification and order the person to comply with the requirement.

Subclause (5) provides that a certification of the Director under subclause (1) is to be taken to be evidence that a person has failed to comply with the requirement under clauses 125, 126 or 148 unless the person proves that the requirement was complied with or has a reasonable excuse.

Subclause (6) provides that if proceedings are brought under this clause in relation to a failure to comply with a requirement a person cannot be charged with an offence under clauses 125(2), 126(3) or 169 in respect of that failure.

Clause 210 provides that a court may, on the application of the Director, make a non-punitive corrective advertising order in relation to a person if the court is satisfied that the person has contravened or been involved in a contravention of Part 3.1, Part 4.1 or Part 6.3 of the Bill.

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Subclause (2) provides that a corrective advertising order means an order that requires a 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 requires the person to publish, at the person's expense and in the way specified by the order, an advertisement in the terms specified in, or determined in accordance with, the order.

Subclause (3) provides this clause does not limit a court's powers under any other provision of this Bill.

Clause 211 provides that a court may, on the application of the Director, make a "punitive" adverse publicity order in relation to a person found guilty of an offence under this Bill.

Subclause (2) provides that an adverse publicity order means an order that 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 requires the person to publish, at the person's expense and in the way specified by the order, an advertisement in the terms specified in, or determined in accordance with, the order.

Subclause (3) provides this clause does not limit a court's powers under any other provision of this Bill.

Clause 212 allows a court, in the court of a prescribed proceeding against a person (the relevant person) under this Bill, to make one of the following orders—

an order prohibiting to making of a payment in total or partial discharge of a debt owed to the relevant person or an associate;

an order prohibiting the relevant person from parting with possession of, or transferring or encumbering, any of that person's money or property;

an order prohibiting a person who is holding assets on behalf of the relevant person from disposing of those assets;

an order prohibiting an authorised deposit taking institution at which the relevant person holds an account

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from transferring, or allowing any person to withdraw, money from that account;

an order prohibiting the taking or sending by a person of money of the relevant person or of an associate of the relevant person to a place outside Victoria;

an order prohibiting the taking, sending or transfer by a person of other property of the relevant person or an associate of the relevant person to a place outside Victoria.

Subclause (2) allows the Minister for Consumer Affairs, the Director of Consumer Affairs Victoria or another party who is a party to the prescribed proceedings to make an application for an order under this clause.

Subclause (3) provides that, subject to clause 212(4), an order under clause 212 may be expressed to operate for a specific period or until proceedings under any other provision of Part 8.2 in relation to which the order was made are concluded.

Subclause (4) provides that an order made under this clause on an ex parte application, that is without the relevant person being present in court or notified of the court proceedings, must not operate for more than 30 days.

Subclause (5) provides that it is an offence for a person not to comply with an order by a court under clause 212. This offence attracts a maximum penalty of 240 penalty units for a natural person or 600 penalty units for a body corporate.

Subclause (6) provides that this clause does not affect the powers the court has apart from under this clause.

Subclause (7) explains the meaning of the term "associate of another person".

Subclause (8) sets out which proceedings this clause applies to.

Clause 213 sets out defences available under this Bill.

Subclause (1) provides that it is a defence to a prosecution under this Bill if the contravention of the Bill was due to a reasonable mistake of fact, including a mistake of fact caused by a reasonable reliance on information supplied by another person or that the contravention was due to the act or default of another person, to an accident or to some other cause beyond

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the control of the accused and the accused took reasonable precautions and exercised due diligence to avoid the contravention.

Subclause (2) provides that the definition of another person does not include an employee or agent of the accused, or where an accused is a body corporate an officer, employee or agent of the body corporate at the time the contravention occurred.

Subclause (3) provides that if a defence under subclause (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the accused is not, without the court's leave, entitled to rely on that defence unless the accused has, not later than 14 days before the day on which the proceeding commences served on the person by whom the proceeding was instituted, a written notice giving such information that would identify or assist in the identification of the other person as was then in the accused's possession.

Subclause (4) provides that it is a defence to a proceeding under the Bill in relation to a contravention of a prescribed provision committed by the publication of an advertisement if the accused is a person who business it is to publish advertisements and the accused published the advertisement in the ordinary course of their business and had no reason to suspect that its publication would amount to a contravention of a prescribed provision.

Subclause (5) defines the term prescribed provision for this clause as being a provision of this Bill other than clause 141, Part 6.2 or Part 6.4.

Clause 214 sets out evidence requirements in relation to proceedings under this Bill.

Subclause (1) provides that evidence that any person carries on business in a place where goods are kept in stock is evidence that the goods are in the possession of the person for supply.

Subclause (2) provides that, in the absence of evidence to the contrary, evidence that goods were shipped from a particular port is evidence of the fact that the goods were manufactured or produced in the country in which that port is situated.

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Subclause (3) provides that the production by the prosecutor of the certificate of an analyst is proof of the facts stated in the certificate. The defendant may give written notice 14 days before the hearing that he or she requires the analyst be called as a witness.

Subclause (4) provides that goods which have been manufactured are presumed, in the absence of evidence to the contrary, to have been manufactured for supply.

Clause 215 provides that, in proceedings under the clauses 216 and 217 findings of fact by a court made in certain proceedings under this Bill is evidence of that fact and that in proceedings under sections 236, 237, 238 or 239 of the Australian Consumer Law (Victoria), a finding of fact made by a court under particular provisions of the Australian Consumer Law (Victoria) is evidence of that fact, and in both instances, may be proved by production of a document under the seal of the court from which the finding appears.

Clause 216 allows the court to make any order it considers fair in relation to a proceeding for an offence under this Bill if the court finds that the person against whom the proceedings were brought has contravened a provision of this Bill and another person has suffered or may suffer loss or damage as a result.

Subclause (2) provides a non-exhaustive list of orders the court may make.

Subclause (3) provides that, in proceedings under clauses 201, 203 or 217, if the court or VCAT finds that a party to proceedings has contravened the provisions of this Bill and that another person has suffered or is likely to suffer loss or damage as a result, the court or VCAT may make any order against the party that might be made against the accused under subclause (1).

Subclause (4) provides that the court may also make an order under clause 216 against a person involved in a contravention of a provision of this Bill.

Clause 217 allows a person who suffers loss, injury or damage because of a contravention of this Bill to recover the amount of the loss or damage suffered by proceedings against any person who contravened or was involved in contravening the Bill.

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Subclause (2) provides that except in accordance with section 182(3), a person may not recover in VCAT an amount for any personal injury suffered.

Subclause (3) states that a proceeding under clause 217 may be brought before VCAT or any court of competent jurisdiction.

Subclause (4) provides that a proceeding under this clause must not be commenced more than 6 years after the date on which the cause of action accrued. A note to this clause provides that subclause (4) is subject to Part IIA of the Limitation of Actions Act 1958.

Clause 218 allows a court to make a compensation order in addition to any other penalty it may fix if a person is found guilty of an offence against this Bill and if, in the opinion of the court, another person was humiliated or distressed by the conduct constituting the offence. The court may order payment of an amount of up to $10 000, or if a greater amount is prescribed, that prescribed amount.

PART 8.3—INFRINGEMENT NOTICES

Clause 219 allows an authorised officer to serve an infringement notice on any person that he or she has reason to believe has committed a prescribed offence against this Bill or the Australian Consumer Law (Victoria) or the regulations. The Australian Consumer Law does not include a provision for the issue of infringement notices under the Australian Consumer Law as it applies as a law of Victoria.

Subclause (2) provides that an offence referred in subclause (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006. The penalty for that offence is the prescribed infringement penalty in respect of that offence.

Subclause (3) provides that for the purposes of Part 8.3 authorised officer means an inspector, a member of the police force and a person authorised in writing by the Director of Consumer Affairs Victoria.

PART 8.4—SAFETY AND INFORMATION REQUIREMENTS

This Part provides for the issuing of interim bans, recall notices or safety warning notices under the Australian Consumer Law in Victoria.

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Under sections 109, 122 and 129 of the Australian Consumer Law, the Victorian Minister for Consumer Affairs may issue interim bans, recall notices or safety warning notices.

Clause 220 allows the Director of Consumer Affairs Victoria to recommend to the Minister for Consumer Affairs that an interim ban, recall notice or safety warning notice be issued under specified sections of the Australian Consumer Law (Victoria).

Subclause (2) provides that the Minister must publish in the Government Gazette a copy of any notice that the Minister publishes on the internet under specified sections of the Australian Consumer Law (Victoria).

Clause 221 provides that the Minister for Consumer Affairs must cause a copy of an interim ban or recall notice to be given to each person who, to the knowledge of the Minister, supplies goods or services of the kind to which the interim ban or recall notice applies.

Subclause (2) provides that a copy of an interim ban or recall notice must be given within 2 days after the imposition of the ban or the issue of the notice under the Australian Consumer Law (Victoria) or if that is not practicable, as soon as possible after that period.

Subclause (3) provides that a failure to comply with subclauses (1) or (2) in relation to an interim ban or recall notice does not invalidate the ban or notice.

Clause 222 allows applications for the review of interim ban or recall notices to be brought in VCAT by persons whose interests are affected by the decision to make the ban or recall notice.

Subclause (2) provides that an application for a review must be made within 28 days after the later of the day on which the interim ban is imposed or the recall notice is issued under the Australian Consumer Law (Victoria) or if, under the Victorian Civil and Administrative Act 1998 a statement of reasons for the decision is requested, the day on which the statement of reasons is given to the person or the person is informed under that Act that a statement of reasons will not be given.

PART 8.5—ENFORCEMENT OF AUSTRALIAN CONSUMER LAW (VICTORIA)

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This Part deals with the enforcement of the Australian Consumer Law (Victoria), and the jurisdiction of courts and the Tribunal to deal with matters arising under the Australian Consumer Law of Victoria.

Clause 223 defines court for the purposes of the Australian Consumer Law (Victoria) to include the Supreme Court, County Court, Magistrates' Court or VCAT. Exceptions are—

Under subclause (2), VCAT is not treated as a court for the purposes of applications to enforce undertakings under sections 218, applications for pecuniary penalties under section 224, applications for non-punitive orders under section 246 and applications for adverse publicity orders under section 247 of the Australian Consumer Law (Victoria).

Under subclause (3)(a), VCAT may not order injunctions under section 232 of the Australian Consumer Law (Victoria), except for the purposes of section 232(3), where the injunction relates to the conduct of a person applying or relying upon a term of a consumer contract which has been declared an unfair term under section 250 of the Australian Consumer Law (Victoria).

Under subclause (3)(b), only the Supreme Court may make an injunction of the kind described in section 232(5) of the Australian Consumer Law (Victoria), being an injunction restraining a person from carrying on a business or supplying goods or services for a specified period or except on specified terms and conditions.

Under subclause (4), the Magistrates' Court is not treated as a court for the purposes of section 250 of the Australian Consumer Law (Victoria), which allows a court to declare that a term of a consumer contract is an unfair term.

Clause 224 confirms, that subject to clause 223 of the Bill, VCAT or any court of competent jurisdiction may hear and determine a course of action arising under any provision of the Australian Consumer Law (Victoria).

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Clause 225 provides that the power of the Magistrates' Court to order a pecuniary penalty under section 224 of the Australian Consumer Law (Victoria) is not limited by the civil jurisdiction limits for civil proceedings in the Magistrates' Court. This ensures that a Magistrate may order pecuniary penalty amounts of up to the maximum amounts specified in section 224(3) of the Australian Consumer Law (Victoria).

Clause 226 confirms the powers of the Supreme Court, County Court and Magistrates' Court to make orders where it finds that a person has contravened a provision of the Australian Consumer Law (Victoria) and that another person has suffered loss or damage as a result of that contravention.

Subclause (2) provides that a court, including the Supreme Court, County Court or Magistrates' Court, may make a declaration that a provision of the Australian Consumer Law (Victoria) has been contravened. This clause does not limit the orders that a Court may make under the Australian Consumer Law (Victoria).

CHAPTER 9—MISCELLANEOUSThis Chapter contains a series of miscellaneous provisions, including provisions dealing with the Director of Consumer Affairs Victoria's power to issue public warning statements and the regulation making power available under this Bill. This Chapter re-enacts Part 12 of the Fair Trading Act 1999.

Clause 227 deals with the requirement that a supplier comply with a request for an itemised bill. Section 101 of the Australian Consumer Law (Victoria) deals with requests for itemised bills. This clause provides that section 101 of the Australian Consumer Law (Victoria) does not apply to a contract for the provision of legal services to which the Legal Profession Act 2004 applies, as the latter Act provides for different time periods for compliance with a request for an itemised bill.

Clause 228 allows the Minister or Director of Consumer Affairs Victoria to publish a public statement or issue a public warning about unsatisfactory goods and services, unfair business practices, and unsatisfactory or unfair suppliers.

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Clause 229 provides that a person is not liable for any loss or damage or injury sustained by any other person solely because the first person, in good faith—

makes a complaint to the Director of Consumer Affairs Victoria under section 113 of this Bill; or

produces or gives a document or any information or evidence to—

the Director of Consumer Affairs Victoria; or

an inspector appointed under this Bill; or

VCAT—

regarding a matter that is or may be a contravention of this Bill or another Consumer Act.

Clause 230 deals with the provisions of this Bill which are not intended to apply to the administration or enforcement or otherwise deal with the Australian Consumer Law (Victoria). These provisions deal with the interaction between provisions of the Australian Consumer Law (Victoria) and this Bill. This clause provides that clauses 197, 198, 201, 202, 205, 210, 211, 213, 214, 216 and 217 of this Bill will not apply in respect of the Australian Consumer Law (Victoria). The remainder of the Bill will apply for the purposes of administering and enforcing the Australian Consumer Law (Victoria).

Clause 231 expresses that it is the intention of clauses 187, 188 and 189 to alter or vary section 85 of the Constitution Act 1975. Section 85 sets out the powers and the jurisdiction of the Supreme Court of Victoria.

Clause 232 deals with the power to make regulations under this Bill.

Subclause (1) provides that the Governor may make regulations for or with respect to—

prescribing the form of and the particulars to be included in contracts under clause 22, being contracts for the limitation of liability for recreational services;

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prescribing calling hours with respect to unsolicited consumer agreements under section 73 of the Australian Consumer Law (Victoria);

prescribing codes of practice in accordance with Part 6.3 of this Bill; and

prescribing any other matter or thing required or permitted by this Bill to be prescribed or necessary to be prescribed to give effect to this Bill.

Subclause (2) sets out the scope of what the regulations may do.

Subclause (3) provides that regulations made under clause 232(1)(b) of the Bill may alter the operation of section 73 of the Australian Consumer Law (Victoria).

CHAPTER 10—REPEALS, SAVINGS, TRANSITIONALS AND CONSEQUENTIAL

AMENDMENTS

Clause 233 repeals the Fair Trading Act 1999.

Clause 234 repeals the Disposal of Uncollected Goods Act 1961.

Clause 235 repeals the Carriers and Innkeepers Act 1958.

Clause 236 repeals the Landlord and Tenant Act 1958.

Clause 237 gives effect to the savings and transitional provisions set out in Schedule 4 to the Bill.

Clause 238 gives effect to the closure of the Consumer Credit Fund under Schedule 5 to the Bill.

Clause 239 gives effect to the consequential amendments set out in Schedule 6 to the Bill.

Clause 240 gives effect to the amendments to the Associations Incorporation Reform Bill 2012 set out in Schedule 7 to the Bill.

SCHEDULES

SCHEDULE 1—CONSUMER ACTS

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This Schedule sets out the lists of Acts that are Consumer Acts for the purposes of the definition of Consumer Acts in clause 3 of this Bill.

SCHEDULE 2—YOU HAVE THE RIGHT TO WITHDRAW FROM THIS AGREEMENT WITHIN 3 DAYS

This Schedule sets out the prescribed form under clause 99 of this Bill relating to introduction agents.

SCHEDULE 3—LOSS OF OR DAMAGE TO GUESTS' PROPERTY

This Schedule sets out the notice that must be given by accommodation providers under clause 102.

SCHEDULE 4—SAVINGS AND TRANSITIONAL PROVISIONS

Item 1 defines key terms in the Schedule.

Item 2 clarifies the relationship between this schedule and the Interpretation of Legislation Act 1984.

Item 3 provides that superseded references to the Fair Trading Act 1999 must be read as a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 4 provides that a provision or provisions of the Fair Trading Act 1999 listed in Column 1 is taken to be re-enacted (with modifications) by the provisions or provisions on this Bill appear opposite in Column 2.

Item 5 provides a savings provision to continue the operation of the Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009 despite the repeal of sections 47 and 165(1)(a) of the Fair Trading Act 1999 by the Fair Trading Amendment (Australian Consumer Law) Act 2010.

Item 6 provides a transitional provision on the repeal of the Disposal of Uncollected Goods Act 1961.

Item 7 provides a transitional provision in relation to Part 4.2 of the Bill until the commencement of section 5 of the Personal

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Property Securities (Statute Law Revision and Implementation) Act 2010.

Item 8 provides for a transitional provision on the repeal of the Carriers and Innkeepers Act 1958.

Item 9 provides a transitional provision for Part IVA of the Landlord and Tenant Act 1958 on the repeal of that Act by clause 236.

SCHEDULE 5—CLOSURE OF THE CONSUMER CREDIT FUND

Item 1 defines key terms in the Schedule.

Item 2 repeals Part 5A of the Credit (Administration) Act 1984, which established the Consumer Credit Fund.

Item 3 provides for the transitional provisions required on the closure of the Consumer Credit Fund to transfer assets and liabilities to the Victorian Consumer Law Fund on the establishment of the new fund.

Item 4 provides that, on the closure of the Consumer Credit Fund, payments by credit providers that would have been paid into that fund must be paid into the Victorian Consumer Law Fund.

Item 5 makes consequential amendments to the Consumer Credit (Victoria) Act 1995 required on the closure of the Consumer Credit Fund.

Item 6 makes consequential amendments to the Credit Act 1984 required on the closure of the Consumer Credit Fund.

SCHEDULE 6—CONSEQUENTIAL AND OTHER AMENDMENTS

Item 1 amends section 75(3)(b) of the Accident Towing Services Act 2007 to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

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Item 2 amends section 4(3) of the Administrative Law Act 1978 to replace a reference to Part 9 of the Fair Trading Act 1999 with a reference to Chapter 7 of the Australian Consumer Law and Fair Trading Act 2011.

Item 3 amends section 47(2)(a) of the Architects Act 1991 to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 4 amends the Associations Incorporation Act 1981 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 50C of the Associations Incorporation Act 1981 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 5 amends sections 137B(4), 221S(1)(e)(iv) and 221ZD(2)(e)(iv) of the Building Act 1983 to include the relevant offences under the Competition and Consumer Act 2010 (Cth). These amendments ensure the continued operation of these sections in relation to Commonwealth offences.

Item 6 amends the definition of hire and drive bus service in section 3(1) of the Bus Safety Act 2009 to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 7 amends the definition of Director in section 3 of the Business Licensing Authority Act 1998 to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 8 makes consequential amendments to the Business Names Act 1962.

Item 8.1 amends the definition of Director in section 4(1) to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

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Item 8.2 re-enacts section 29 to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 9 repeals provisions of the Consumer Affairs Legislation Amendment (Reform) Act 2010 following the re-enactment of those provisions in this Bill.

Item 9.1 amends the commencement provision of section 2(4) of the Consumer Affairs Legislation Amendment (Reform) Act 2010.

Items 9.2 to 9.6 repeal various Divisions and sections in that Act.

Item 10 amends the Conveyancers Act 2006 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 183 of the Conveyancers Act 2006 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 11 amends the Credit (Administration) Act 1984 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011.

Item 12 amends the definition of Director in section 11 of the Credit (Commonwealth Powers) Act 2010 to replace a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 13 amends the Credit Act 1984 to replace references to the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011.

Item 14 makes consequential amendments to the Domestic Building Contracts Act 1995.

Item 14.1 amends the definition of Director in section 3(1) to replace a reference to the Fair Trading Act 1999 with a

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reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 14.2 re-enacts section 124A to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011.

Item 14.3 substitutes a reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 15 amends the Electricity Industry Act 2000 to replace references to the Trade Practices Act 1974 and certain provisions in the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth and the equivalent provisions in the Trade Practices Act 1974, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 16 amends the Estate Agents Act 1980 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 93A of the Estate Agents Act 1980 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 17 amends the Fundraising Act 1998 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 68 of the Fundraising Act 1998 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 18 amends the Funerals Act 2006 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law

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and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 54 of the Funerals Act 2006 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 19 amends the Gambling Regulation Act 2003 to replace references to the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 20 amends the Gas Industry Act 2001 to replace references to the Trade Practices Act 1974 and certain provisions in the Trade Practices Act with references to the Competition and Consumer Act 2010 of the Commonwealth and the equivalent provisions in the Trade Practices Act, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 21 amends section 1340 of the Health Services Act 1998 to replace references to the Trade Practices Act 1974 to the Competition and Consumer Act 2010, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 22 amends section 38F of the Interpretation of Legislation Act 1984 to replace the reference to Part 2 of the Fair Trading Act 1999 with a reference to Chapter 2 of the Australian Consumer Law and Fair Trading Act 2011.

Item 23 amends section 10(b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 to replace references to provisions of the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 24 amends the Legal Profession Act 2004 to replace references to the Trade Practices Act 1974 to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

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Item 25 amends the Limitation of Actions Act 1958 to replace the reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 26 amends the Liquor Control Reform Act 1998 to replace references to the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 27 amends the note at the foot of section 28 of the Major Sporting Events Act 2009 to replace the reference to the Trade Practices Act 1974 with a reference to the Competition and Consumer Act 2010 and a reference to the Trade Practices Act 1974 with a reference to the Australian Consumer Law and Fair Trading Act 2011.

Item 28 amends the Motor Car Traders Act 1986 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 82I of the Motor Car Traders Act 1986 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 29 amends the National Electricity (Victoria) Act 2005 to replace references to the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 30 amends section 33(5) of the National Gas (Victoria) Act 2008 to replace the reference to the Trade Practices Act 1974 with a reference to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 31 amends section 28 of the Outworkers (Improved Protection) Act 2003 to replace the references to the Trade Practices Act 1974 to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

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Item 32 amends the Owner Drivers and Forestry Contractors Act 2005 to replace the references to the Trade Practices Act 1974 to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 33 amends the Owners Corporations Act 2006 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 199 of the Owners Corporations Act 2006 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 34 amends the Partnership Act 1958 to replace the references to the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011.

Item 35 amends section 62(5) of the Port Management Act 1995 to replace the reference to the Trade Practices Act 1974 with a reference to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 36 amends the Residential Tenancies Act 1997 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 507A of the Residential Tenancies Act 1997 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Savings provisions in relation to the repeal of Part V of the Landlord and Tenant Act 1958 are inserted as Division 4 of Schedule 1 of the Act to ensure the continuation of the rights of protected tenants.

Item 37 amends the Retail Leases Act 2003 to replace references to the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the

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renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 38 amends the Retirement Villages Act 1986 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 40 of the Retirement Villages Act 1986 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 39 amends the definition of hire-purchase agreement in section 3(1) of the Road Safety Act 1986 to replace the reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2010.

Item 40 amends the Sale of Land Act 1962 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 48A of the Sale of Land Act 1962 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 41 amends the Second-Hand Dealers and Pawnbrokers Act 1989 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 30 of the Second-Hand Dealers and Pawnbrokers Act 1989 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 42 amends the Sex Work Act 1994 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and

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Fair Trading Act 2011. Section 86A of the Sex Work Act 1994 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 43 amends the State Owned Enterprises Act 1992 to replace references to the Trade Practices Act 1974 with references to the Competition and Consumer Act 2010 of the Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

Item 44 amends the Travel Agents Act 1986 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 44 of the Travel Agents Act 1986 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 45 amends the Veterans Act 2005 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011. Section 59 of the Veterans Act 2005 is re-enacted to apply the equivalent enforcement provisions of the Australian Consumer Law and Fair Trading Act 2011 to the section.

Item 46 amends the Victorian Civil and Administrative Tribunal Act 1998 to replace references to the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2010. A new Part 2AB inserted into Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 re-enacts Part 7AA in relation to proceedings under the Australian Consumer Law and Fair Trading Act 2011.

Item 47 amends section 183 of the Water Industry Act 1994 to replace the reference to the Trade Practices Act 1974 with a reference to the Competition and Consumer Act 2010 of the

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Commonwealth, reflecting the renaming of the Trade Practices Act to the Competition and Consumer Act 2010.

SCHEDULE 7—AMENDMENTS TO THE ASSOCIATIONS INCORPORATION REFORM ACT 2012

Item 1 provides for the future amendment of section 3 of the Associations Incorporation Reform Act 2012 to substitute the reference to the Fair Trading Act 1999 with a reference to the Australian Consumer Law and Fair Trading Act 2010.

Item 2 provides for the future re-enactment of section 219 of the Associations Incorporation Reform Act 2012 to replace references to the Fair Trading Act 1999 and certain provisions in the Fair Trading Act 1999 with references to the Australian Consumer Law and Fair Trading Act 2011 and equivalent re-enacted provisions in the Australian Consumer Law and Fair Trading Act 2011.

Item 3 provides for the future amendment of Schedule 1 to the Australian Consumer Law and Fair Trading Act 2011 to replace the reference to Associations Incorporation Act 1981 with a reference to the Associations Incorporation Reform Act 2012.

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