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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Consumer Credit (Finance Brokers) Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. New Part 4A inserted 2
PART 4A--FINANCE BROKING 2
Division 1--Preliminary 2
37A. Definitions 2
37B. Exemption from this Part 4
Division 2--Offences 4
37C. Certain persons prohibited from engaging in finance
broking 4
37D. Certain persons not to be directors of or to manage or
control corporations that engage in finance broking 6
37E. Who or what is a disqualified person? 7
Division 3--Permission to engage in finance broking 9
37F. Applications for permission to engage or be involved in
finance broking 9
37G. Permission from the Authority 9
37H. Authority may impose conditions 10
37I. Application for review 11
Division 4--Permissible fees 11
37J. Requirements before finance brokers may demand or
accept fees 11
37K. Fee representing reasonable costs and expenses payable
in certain circumstances 14
37L. Finance brokers not to demand receive accept or charge
fee to which they are not entitled 15
37M. Valuation and credit application fees 16
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Clause Page
Division 5--Jurisdiction of courts and the Tribunal under
Part 4A 17
37N. Right to recover fees if there is non-compliance with this
Part 17
37O. Jurisdiction of the Tribunal to order repayment of fees 18
37P. Court power to order repayment where there is a
contravention of section 37L 18
Division 6--Miscellaneous and transitional provisions 18
37Q. Documents of appointment must be held for 7 years 18
37R. Misrepresentation 19
37S. Register of finance brokers and agents 19
37T. Finance broker licences and agents licences 20
37U. Director to exercise and perform certain powers and
duties of Registrar 20
5. Consequential amendments to Principal Act 20
6. Regulations 21
7. Amendment of Credit (Administration) Act 1984 21
8. Repeal 22
NOTES 23
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PARLIAMENT OF VICTORIA
Initiated in Assembly 2 September 1998
As amended by Assembly 8 October 1998
A BILL
to repeal the Finance Brokers Act 1969, to amend the Consumer Credit
(Victoria) Act 1995 so as to prohibit certain persons from engaging or being
involved in finance broking, to empower the Business Licensing Authority to
permit certain persons to engage in finance broking and for other purposes.
Consumer Credit (Finance Brokers) Act
1998
The Parliament of Victoria enacts as follows:
1. Purposes
The main purposes of this Act are--
(a) to repeal the Finance Brokers Act 1969;
and
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Consumer Credit (Finance Brokers) Act 1998
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Act No.
(b) to insert a new Part into the Consumer
Credit (Victoria) Act 1995 so as to prohibit
certain persons from engaging or being
involved in finance broking; and
5 (c) to empower the Business Licensing
Authority to permit certain persons to engage
in finance broking who would be, but for
that permission, disqualified from doing so;
and
10 (d) to make consequential amendments to the
Consumer Credit (Victoria) Act 1995 and
the Credit Administration Act 1984.
2. Commencement
This Act comes into operation on 1 July 1999.
15 3. Principal Act
No. 41/1995. In this Act, the Consumer Credit (Victoria) Act
Reprint No. 1
1995 is called the Principal Act.
as at 1 July
1998.
4. New Part 4A inserted
After Part 4 of the Principal Act insert--
20 'PART 4A--FINANCE BROKING
Division 1--Preliminary
37A. Definitions
In this Part--
"client" means a person who appoints a
25 finance broker to negotiate consumer
credit on their behalf for a fee;
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"consumer credit" means--
(a) a credit contract within the
meaning of the Consumer Credit
(Victoria) Code; or
5 (b) a consumer lease to which Part 10
of the Consumer Credit (Victoria)
Code applies;
"credit application fee" means any fee
charged by--
10 (a) a credit provider in respect of an
application for the provision of
credit under a credit contract
within the meaning of the
Consumer Credit (Victoria) Code;
15 or
(b) a lessor in respect of an
application to enter into a
consumer lease to which Part 10
of the Consumer Credit (Victoria)
20 Code applies;
"engage in finance broking" means--
(a) to negotiate consumer credit for a
fee; or
(b) to hold oneself out to the public
25 as being prepared, for a fee, to
negotiate consumer credit;
"fee" includes a charge, commission, reward
or other remuneration, whether
monetary or otherwise;
30 "finance broker" means a person who
engages in finance broking;
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"negotiate consumer credit" means to
negotiate, or to act as intermediary to
obtain, consumer credit for persons
other than an employer or principal
5 (except where that principal is the
client) of the person so negotiating or
acting;
"valuation fee" means any fee for a
valuation obtained in respect of any
10 security to be offered for any proposed
credit contract within the meaning of
the Consumer Credit (Victoria) Code.
37B. Exemption from this Part
(1) The Governor in Council may, by Order
15 published in the Government Gazette,
declare that this Part, wholly or to the extent
specified in the Order, does not apply to--
(a) a specified person or to a specified
class of person; or
20 (b) a specified transaction or to a specified
class of transaction.
(2) An Order made under sub-section (1)--
(a) may specify the period during which
the Order shall remain in force; and
25 (b) may provide that its operation is subject
to such terms and conditions as are
specified in the Order.
Division 2--Offences
37C. Certain persons prohibited from engaging
30 in finance broking
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(1) A person is prohibited from engaging in
finance broking if that person--
(a) in the case of a natural person--
(i) is under 18 years of age; or
5 (ii) is an insolvent under
administration; or
(iii) is a represented person within the
meaning of the Guardianship
and Administration Act 1986; or
10 (b) in the case of a corporation--
(i) is an externally administered body
corporate; or
(ii) is a corporation one or more of the
directors of which is--
15 (A) a person referred to in
paragraph (a); or
(B) a disqualified person who
does not hold permission
given by the Authority under
20 Division 3 to be a director of
a corporation that engages in
finance broking; or
(iii) is a corporation that is managed or
effectively controlled by a natural
25 person who is--
(A) a person referred to in
paragraph (a); or
(B) a disqualified person who
does not hold permission
30 given by the Authority under
Division 3 to manage or
effectively control a
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corporation that engages in
finance broking; or
(c) in any case, is a disqualified person that
does not hold permission given by the
5 Authority under Division 3 to engage in
finance broking.
(2) A person prohibited by sub-section (1) from
doing so must not engage in finance broking.
Penalty: In the case of a corporation,
10 240 penalty units;
In any other case, 240 penalty
units or 2 years imprisonment.
37D. Certain persons not to be directors of or to
manage or control corporations that engage
15 in finance broking
(1) A natural person is prohibited from being a
director of, or managing or effectively
controlling, a corporation that engages in
finance broking if he or she is--
20 (a) prohibited from engaging in finance
broking by virtue of section 37C(1)(a);
or
(b) a disqualified person who does not hold
permission given by the Authority
25 under Division 3 to be a director of, or
manage or effectively control, a
corporation that engages in finance
broking (as the case may be).
(2) A natural person who is prohibited by sub-
30 section (1) from doing so must not be a
director of, or manage or effectively control,
a corporation that engages in finance
broking.
Penalty: 240 penalty units or 2 years
35 imprisonment.
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37E. Who or what is a disqualified person?
(1) A disqualified person for the purposes of this
Part is a natural person who, or a corporation
that--
5 (a) in the preceding 10 years has been
found guilty--
(i) in Victoria or elsewhere, of an
offence involving fraud,
dishonesty, drug trafficking or
10 violence; or
(ii) of an offence against the Credit
Act 1984, the Credit
(Administration) Act 1984, this
Act, the Consumer Credit
15 (Victoria) Code or a similar
enactment of another State or a
Territory of Australia; or
(iii) of an offence against the Finance
Brokers Act 1969 or a similar
20 enactment of another State or a
Territory of Australia; or
(b) in the preceding 2 years has had their
application for the grant or renewal of a
finance broker's licence under the
25 Finance Brokers Act 1969 refused; or
(c) in the preceding 2 years has had their
application for the grant or renewal of a
finance broker's licence, or for
registration to act as a finance broker,
30 refused under any enactment of another
State or a Territory of Australia; or
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(d) in the preceding 5 years has had their
finance broker's licence cancelled under
the Finance Brokers Act 1969; or
(e) in the preceding 5 years has had their
5 finance broker's licence, or registration
to act as a finance broker, cancelled
under any enactment of another State or
a Territory of Australia.
(2) Any person that--
10 (a) immediately before 1 July 1999 held a
finance broker's licence under the
Finance Brokers Act 1969 or any
enactment of another State or a
Territory of Australia, or was registered
15 to act as a finance broker under any
enactment of another State or Territory
of Australia; and
(b) but for this sub-section would become a
disqualified person within the meaning
20 of sub-section (1) at the beginning of
that date by reason of a finding of guilt,
refusal or cancellation that occurred
before that date--
is not to be regarded as a disqualified person
25 for the purposes of this Part.
(3) A person that--
(a) at any time after 1 July 1999 becomes a
disqualified person within the meaning
of sub-section (1); and
30 (b) immediately before becoming a
disqualified person was engaged in
finance broking or was a director of, or
managed or effectively controlled, a
corporation that was engaged in finance
35 broking (as the case may be)--
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is not to be regarded as a disqualified person
for the purposes of this Part until--
(c) the expiry of 30 days after becoming a
disqualified person; or
5 (d) if an application for permission under
Division 3 is made before that expiry,
the application is withdrawn or refused.
Division 3--Permission to engage in finance
broking
10 37F. Applications for permission to engage or be
involved in finance broking
(1) A disqualified person within the meaning of
section 37E(1) may apply to the Authority at
any time for permission to do any or all of
15 the following--
(a) engage in finance broking; or
(b) be a director of a corporation that
engages in finance broking; or
(c) manage or effectively control a
20 corporation that engages in finance
broking.
(2) An application must be--
(a) in a form approved by the Authority;
and
25 (b) accompanied by a fee of $150 or any
other fee that is prescribed.
(3) An application may be withdrawn at any
time before the Authority determines it.
37G. Permission from the Authority
30 (1) The Authority may give its permission if it is
satisfied that it is not contrary to the public
interest for it to do so.
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(2) In determining whether to give its
permission, the Authority--
(a) is not required to conduct a hearing;
(b) may require the applicant to provide
5 such further information as it considers
necessary;
(c) may seek and use information and
advice from any person or body or
other source as it thinks fit.
10 (3) Without limiting its discretion to do so, the
Authority may refuse to give its permission
if--
(a) the applicant refuses or fails to provide
any information requested by the
15 Authority under sub-section (2)(b); or
(b) the applicant unreasonably delays the
consideration of the application.
37H. Authority may impose conditions
(1) In giving its permission under this Division,
20 the Authority may impose any conditions it
considers appropriate to ensure the ongoing
protection of the public interest.
(2) The person given the permission, or the
Director, may apply to the Authority for a
25 variation or revocation of any conditions the
Authority has imposed.
(3) A person given the permission must comply
with any conditions imposed in respect of
that permission.
30 Penalty: In the case of a corporation,
240 penalty units;
In any other case, 240 penalty
units or 2 years imprisonment.
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(4) If the Authority is satisfied that any
condition imposed in respect of a permission
has been contravened or not complied with,
it may revoke the permission.
5 (5) Before taking any action under this section,
the Authority may seek and use information
and advice from any person or body or other
source as it thinks fit.
37I. Application for review
10 (1) A person whose interests are affected by a
decision of the Authority under section 37G
or 37H may apply to the Tribunal for review
of the decision.
(2) An application for review must be made
15 within 28 days after the later of--
(a) the day on which the decision is made;
or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
20 the person requests a statement of
reasons for the decision, the day on
which the statement of reasons is given
to the person or the person is informed
under section 46(5) of that Act that a
25 statement of reasons will not be given.
Division 4--Permissible fees
37J. Requirements before finance brokers may
demand or accept fees
(1) A finance broker must not demand, receive
30 or accept any fee in respect of negotiating
consumer credit unless--
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(a) the finance broker has been appointed
by the client in writing to negotiate
consumer credit on their behalf; and
(b) the document of appointment sets out
5 the fee to be charged or its method of
calculation; and
(c) the document of appointment specifies
the matters required by sub-section (3);
and
10 (d) the client has signed the document of
appointment before the finance broker
commences negotiating consumer
credit on their behalf; and
(e) the client is given a copy of the signed
15 document of appointment before the
finance broker commences negotiating
consumer credit on their behalf; and
(f) the client accepts--
(i) the consumer credit that is
20 specified in the document of
appointment; or
(ii) consumer credit negotiated by the
finance broker that is reasonably
comparable to the consumer credit
25 specified in the document of
appointment.
(2) A reference in this Part to a document of
appointment is a reference to that document
as varied by the finance broker and the
30 client, whether before or after the finance
broker commences to negotiate consumer
credit.
(3) For the purposes of sub-section (1)(c)--
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(a) where the finance broker is being
appointed to negotiate consumer credit
that is a credit contract within the
meaning of the Consumer Credit
5 (Victoria) Code, the matters required to
be specified in the document of
appointment are--
(i) the amount of credit, or if the
amount of credit is not
10 ascertainable, the maximum
amount of credit or credit limit to
be negotiated under the credit
contract;
(ii) if there is a term of the credit
15 contract, that term;
(iii) the maximum annual percentage
rate or rates the client is prepared
to pay;
(iv) the duration of the appointment;
20 (v) an agreed maximum amount of
credit application fees and
valuation fees that the client may
be required to pay;
(b) where the finance broker is being
25 appointed to negotiate consumer credit
that is a consumer lease to which
Part 10 of the Consumer Credit
(Victoria) Code applies, the matters
required to be specified in the
30 document of appointment are--
(i) a description or identification of
the goods to be hired under the
lease;
(ii) the number of rental payments to
35 be made;
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(iii) the maximum amount of rental
payable under the lease which the
client is prepared to pay;
(iv) the amount of any other charges
5 not included in the rental that the
client is prepared to pay under the
lease;
(v) the duration of the appointment;
(vi) an agreed maximum amount of
10 credit application fees that the
client may be required to pay.
37K. Fee representing reasonable costs and
expenses payable in certain circumstances
(1) Despite section 37J, if the requirements of
15 paragraphs (a) to (e) of section 37J(1) have
been met, the finance broker may charge a
fee in respect of the reasonable costs
incurred, and a reasonable fee for the
services provided, by the finance broker in
20 negotiating consumer credit on behalf of the
client if--
(a) the finance broker successfully
negotiates the consumer credit
specified in the document of
25 appointment, but the client declines to
accept that consumer credit; or
(b) the client terminates the appointment
for any reason other than--
(i) the finance broker advising them
30 that all avenues for obtaining the
consumer credit specified in the
document of appointment have
been exhausted; or
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(ii) the finance broker engaging in
conduct that entitles the client to
terminate the appointment; or
(iii) the finance broker repudiating the
5 appointment; or
(iv) the agreed maximum amount of
credit application and valuation
fees required to be paid by the
client having been paid but the
10 consumer credit specified in the
document of appointment not
having been negotiated within a
reasonable time after the payment;
or
15 (v) the consumer credit specified in
the document of appointment not
having been negotiated within the
time agreed to in the document of
appointment.
20 (2) The finance broker must not charge a fee
under sub-section (1) unless the finance
broker and the client agree in the document
of appointment to such a fee being charged.
37L. Finance brokers not to demand receive
25 accept or charge fee to which they are not
entitled
A finance broker must not demand, receive,
accept or charge--
(a) any fee for negotiating consumer credit
30 other than a fee to which they are
entitled under this Part; or
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(b) any deposit on account of a fee for
negotiating consumer credit.
Penalty: In the case of a corporation
For a first offence, 30 penalty
5 units;
For a subsequent offence,
60 penalty units.
In any other case--
For a first offence, 30 penalty
10 units or 3 months imprisonment;
For a subsequent offence,
60 penalty units or 6 months
imprisonment.
37M. Valuation and credit application fees
15 (1) A finance broker must not demand payment
of any valuation fees or credit application
fees in cash or any other form other than in
the form of a cheque, money order or other
transfer made payable only to the person
20 who has provided or is to provide the
valuation, or the credit provider (as the case
may be).
Penalty: In the case of a corporation
For a first offence, 30 penalty
25 units;
For a subsequent offence,
60 penalty units.
In any other case--
For a first offence, 30 penalty
30 units or 3 months imprisonment;
For a subsequent offence,
60 penalty units or 6 months
imprisonment.
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(2) As soon as practicable after receiving a
cheque, money order or other transfer
referred to in sub-section (1), the finance
broker must give or deliver it to the person
5 who has provided or is to provide the
valuation, or the credit provider (as the case
may be).
Penalty: In the case of a corporation
For a first offence, 30 penalty
10 units;
For a subsequent offence,
60 penalty units.
In any other case--
For a first offence, 30 penalty
15 units or 3 months imprisonment;
For a subsequent offence,
60 penalty units or 6 months
imprisonment.
Division 5--Jurisdiction of courts and the
20 Tribunal under Part 4A
37N. Right to recover fees if there is non-
compliance with this Part
If a finance broker charges, receives, or
accepts from a client, any amount as a fee to
25 which that finance broker is not entitled
under this Part, or any amount as a deposit
on account of a fee for negotiating consumer
credit, that client may--
(a) recover that amount as a debt in a court
30 of competent jurisdiction; or
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(b) apply to the Tribunal for an order
requiring the finance broker to repay
that amount.
37O. Jurisdiction of the Tribunal to order
5 repayment of fees
On the application of a client, the Tribunal
may make an order for the repayment of any
amount that a finance broker has received or
accepted as a fee to which that finance
10 broker was not entitled, or as a deposit on
account of a fee for negotiating consumer
credit.
37P. Court power to order repayment where
there is a contravention of section 37L
15 On finding a finance broker guilty of an
offence under section 37L, the Magistrates'
Court, in addition to imposing a penalty,
may make an order requiring the finance
broker to repay any amount that has been
20 received or accepted by the finance broker in
contravention of that section, together with
interest at a rate that is set by the court, not
exceeding the rate for the time being fixed
under section 2 of the Penalty Interest
25 Rates Act 1983, from the time the amount
was received or accepted until the time the
amount is repaid.
Division 6--Miscellaneous and transitional
provisions
30 37Q. Documents of appointment must be held for
7 years
A finance broker must retain the signed
original document of appointment to
negotiate consumer credit for 7 years from
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the date that the document of appointment
was signed by the client.
Penalty: For a first offence, 30 penalty
units;
5 For a subsequent offence,
60 penalty units.
37R. Misrepresentation
A finance broker must not--
(a) by a false, misleading or deceptive
10 statement, representation or promise; or
(b) by any wilful concealment of a material
fact--
induce or attempt to induce any person to
enter into an agreement or contract for or
15 with respect to any consumer credit, or the
provision of any consumer credit.
Penalty: In the case of a corporation--
For a first offence, 30 penalty
units;
20 For a subsequent offence,
60 penalty units.
In any other case--
For a first offence, 30 penalty
units or 3 months imprisonment;
25 For a subsequent offence,
60 penalty units or 6 months
imprisonment.
37S. Register of finance brokers and agents
On 1 July 1999, the Director shall take
30 possession, and have custody, control and
use of the register within the meaning of
section 6 of the Finance Brokers Act 1969.
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37T. Finance broker licences and agents
licences
(1) As soon as practicable after 1 July 1999, the
Director must send a notice to every person
5 who, immediately before that date, held a
finance broker's licence or agent's licence,
requiring that person to give or send their
licence to the Director.
(2) A person must within 14 days of receipt of
10 the notice give or send their licence to the
Director.
Penalty: 30 penalty units.
37U. Director to exercise and perform certain
powers and duties of Registrar
15 On and from 1 July 1999, any power that
could have been exercised by the Registrar
before that date under section 19 of the
Finance Brokers Act 1969 for the purpose
of ascertaining whether the provisions of that
20 Act had been complied with by any finance
broker or agent before that date, vests in the
Director and may be exercised by the
Director for that purpose as if that Act had
not been repealed.'.
25 5. Consequential amendments to Principal Act
(1) In section 3(1) of the Principal Act, after the
definition of "exempt credit provider" insert--
' "externally administered body corporate" has
the same meaning as in the Corporations
30 Law;
"insolvent under administration" means a
person who is a bankrupt in respect of a
bankruptcy from which the person has not
been discharged and includes--
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(a) a person for whom a debt agreement
has been made under Part IX of the
Bankruptcy Act 1966 of the
Commonwealth (or the corresponding
5 provisions of the law of another
jurisdiction) where the debt agreement
has not ended or has not been
terminated; and
(b) a person who has executed a deed of
10 arrangement under Part X of the
Bankruptcy Act 1966 of the
Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) where the terms of the
15 deed have not been fully complied
with; and
(c) a person whose creditors have accepted
a composition under Part X of the
Bankruptcy Act 1966 of the
20 Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) where a final payment has
not been made under that composition;'.
(2) In section 30(3)(h) of the Principal Act, omit
25 "within the meaning of the Corporations Law".
6. Regulations
In section 41(1) of the Principal Act, after
paragraph (c) insert--
"(d) prescribing fees for applications to the
30 Authority.".
7. Amendment of Credit (Administration) Act 1984
No. 10091.
(1) In section 10A of the Credit (Administration)
Reprint No. 3
Act 1984, in the definition of "Credit Acts", after as at 1 July
"Credit Act 1984" insert ", Consumer Credit 1998.
35 (Victoria) Act 1995".
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(2) In section 12 of the Credit (Administration) Act
1984, after "credit provider" (wherever occurring)
insert "or finance broker".
(3) In section 13 of the Credit (Administration) Act
5 1984--
(a) after "mortgagee" (wherever occurring)
insert "or finance broker";
(b) after "mortgage" insert "or consumer credit
(as the case requires)".
10 (4) In section 14(c) of the Credit (Administration
Act 1984), for "or mortgagee" (wherever
occurring) substitute ", mortgagee or finance
broker".
8. Repeal
No. 7846.
15 The Finance Brokers Act 1969 is repealed.
Reprint No. 2
as at 8 August
1997.
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
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