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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Fair Trading (Inspectors Powers and Other
Amendments) Act 1999
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--CREDIT (ADMINISTRATION) ACT 1984 3
3. Principal Act 3
4. Amendment of definitions 3
5. Sections 13 and 14 repealed 3
6. Secrecy 3
7. New Part 3 inserted 4
PART 3--INSPECTION POWERS 4
17. Definitions 4
18. Production of identity card 4
19. Accounts and other documents available for inspection 5
20. Specified persons to produce documents and answer
questions 5
21. Third parties to produce documents and answer
questions relating to specified business 7
22. Ministers, police and public authorities to produce
information to inspectors 8
23. Certain other specified persons or bodies to produce
information 8
24. Powers on production of documents 9
25. Order requiring supply of information and answers to
questions 10
26. Entry or search with consent 11
27. Entry without consent or warrant 13
28. Search warrants 14
29. Announcement before entry 16
30. Details of warrant to be given to occupier 16
31. Seizure of things not mentioned in the warrant 17
32. Embargo notice 18
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33. Copies of seized documents 19
34. Retention and return of seized documents or things 19
35. Magistrates' Court may extend 3 month period 20
36. Requirement to assist inspector during entry 20
37. Refusal or failure to comply with requirement 21
38. Rule against self-incrimination does not apply 21
39. Offence to give false or misleading information 21
40. Application of provisions relating to inspections 22
41. Service of documents 22
42. Confidentiality 22
8. New sections 89A and 89B inserted 23
89A. Production of information to Authority 23
89B. Rule against self-incrimination does not apply 24
PART 3--MOTOR CAR TRADERS ACT 1986 25
9. Principal Act 25
10. Definitions 25
11. Display of licence 26
12. Cooling-off periods 26
13. New sections 82 to 82AY substituted 27
82. Production of identity card 27
82A. Documents available for inspection 27
82AA. Specified persons to produce documents and answer
questions 28
82AB. Third parties to produce documents and answer
questions relating to trader's business 29
82AC. Ministers, police, and public authorities to produce
information to inspectors 29
82AD. Certain other specified persons or bodies to produce
information 30
82AE. Powers on production of documents 31
82AF. Order requiring supply of information and answers to
questions 32
82AG. Entry or search with consent 33
82AH. Entry without consent or warrant 35
82AI. Search warrants 36
82AJ. Announcement before entry 37
82AK. Details of warrant to be given to occupier 38
82AL. Seizure of things not mentioned in the warrant 38
82AM. Embargo notice 39
82AN. Copies of seized documents 40
82AO. Retention and return of seized documents or things 40
82AP. Magistrates' Court may extend 3 month period 41
82AQ. Requirement to assist inspector during entry 42
82AR. Refusal or failure to comply with requirement 42
82AS. Rule against self-incrimination does not apply 42
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82AT. Offence to give false or misleading information 43
82AU. Application of provisions relating to inspections 43
82AV. Service of documents 43
82AW. Confidentiality 44
82AX. Production of information to Authority 45
82AY. Rule against self-incrimination does not apply 45
PART 4--TRAVEL AGENTS ACT 1986 47
14. Principal Act 47
15. Definitions 47
16. Repeal of sections 26 and 27 48
17. Restraint of unjust conduct 48
18. New Part 3A inserted 48
PART 3A--INSPECTION POWERS 48
39A. Production of identity card 48
39B. Documents available for inspection 48
39C. Licensee or specified person to produce documents and
answer questions 49
39D. Third parties to produce documents and answer
questions relating to licensee's business 50
39E. Ministers, police and public authorities to produce
information to inspectors 51
39F. Certain other specified persons or bodies to produce
information 51
39G. Powers on production of documents 52
39H. Order requiring supply of information and answers to
questions 53
39I. Entry or search with consent 54
39J. Entry without consent or warrant 56
39K. Search warrants 57
39L. Announcement before entry 59
39M. Details of warrant to be given to occupier 59
39N. Seizure of things not mentioned in the warrant 60
39O. Embargo notice 60
39P. Copies of seized documents 61
39Q. Retention and return of seized documents or things 62
39R. Magistrates' Court may extend 3 month period 62
39S. Requirement to assist inspector during entry 63
39T. Refusal or failure to comply with requirement 63
39U. Rule against self-incrimination does not apply 63
39V. Offence to give false or misleading information 64
39W. Application of provisions relating to inspections 64
39X. Service of documents 65
39Y. Confidentiality 65
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Clause Page
39Z. Production of information to Authority 66
39ZA. Rule against self-incrimination does not apply 66
19. Repeal of sections 41 and 42 67
PART 5--AMENDMENT OF OTHER ACTS 68
20. Architects Act 1991 68
21. Associations Incorporation Act 1981 68
22. Building Act 1993 68
23. Business Licensing Authority Act 1998 70
24. Business Names Act 1962 70
25. Business Names Act 1962--New section 4B inserted 71
4B. Delegation by Director 71
26. Business Names Act 1962--New section 33 inserted 71
33. Transitional 71
27. Consumer Credit (Victoria) Act 1995 72
28. Credit Act 1984 72
29. Disposal of Uncollected Goods Act 1961 73
14. Application of provisions of Fair Trading Act 1999 73
30. Domestic Building Contracts Act 1995 73
31. Domestic Building Contracts Act 1995--New section 124A
inserted 73
124A. Application of provisions of Fair Trading Act 1999 74
32. Estate Agents Act 1980 74
33. Fundraising Appeals Act 1998 74
34. Fundraising Appeals Act 1998--New section 72A inserted 74
72A. Transitional provision relating to inspectors 74
35. Funerals (Pre-Paid Money) Act 1993 75
36. Funerals (Pre-Paid Money) Act 1993--New section 17A
inserted 75
17A. Application of provisions of Fair Trading Act 1999 75
37. Introduction Agents Act 1997 76
38. Pay-roll Tax Act 1971 76
39. Petroleum Retail Selling Sites Act 1981 76
40. Prostitution Control Act 1994 77
41. Residential Tenancies Act 1997 77
42. Residential Tenancies Act 1997--New section 507A inserted 77
507A. Application of provisions of Fair Trading Act 1999 77
43. Retirement Villages Act 1986 78
44. Retirement Villages Act 1986--New section 44 inserted 79
44. Transitional 79
45. Sale of Land Act 1962 79
46. Second-Hand Dealers and Pawnbrokers Act 1989 80
47. Small Claims Act 1973 80
48. Trade Measurement Act 1995 80
81. Special provisions--application of Act in the State 80
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Clause Page
49. Victorian Civil and Administrative Tribunal Act 1998 80
NOTES 82
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PARLIAMENT OF VICTORIA
Initiated in Assembly 14 April 1999
As amended by Assembly 4 May 1999
A BILL
to provide for inspectors' powers in various Acts and to make other
amendments to various Acts as a consequence of the Fair Trading
Act 1999 and for other purposes.
Fair Trading (Inspectors Powers and
Other Amendments) Act 1999
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to provide for inspectors' powers in the
5 Credit (Administration) Act 1984, the
Motor Car Traders Act 1986 and the
Travel Agents Act 1986 and other Acts; and
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(b) to make other amendments to various Acts as
a consequence of the Fair Trading Act
1999.
2. Commencement
5 (1) Part 1 of this Act comes into operation on the day
on which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
10 (3) If a provision referred to in sub-section (2) does
not come into operation before 1 February 2000, it
comes into operation on that day.
_______________
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PART 2--CREDIT (ADMINISTRATION) ACT 1984
3. Principal Act
No. 10091/84.
In this Part the Credit (Administration) Act
Reprint No. 3
1984 is called the Principal Act. as at 1 July
1998.
Subsequently
amended by
No. 77/1998.
5 4. Amendment of definitions
In section 4 of the Principal Act--
(a) for the definition of "Director" substitute--
' "Director" means the Director within the
meaning of the Fair Trading Act
10 1999;';
(b) insert the following definitions--
' "inspector" means an inspector appointed
under the Fair Trading Act 1999;
"occupier" in relation to a premises, means
15 a person who appears to be of or over
16 years of age and who appears to be
in control of the premises;
"OFTBA Act" has the same meaning as it
has in the Fair Trading Act 1999;'.
20 5. Sections 13 and 14 repealed
Sections 13 and 14 of the Principal Act are
repealed.
6. Secrecy
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In section 15(1) of the Principal Act after
"Director" (where secondly occurring) insert "but
does not apply to an inspector".
5 7. New Part 3 inserted
After Part 2 of the Principal Act insert--
'PART 3--INSPECTION POWERS
17. Definitions
In this Part--
10 "Credit Acts" means this Act, the Credit
Act 1984, the Consumer Credit
(Victoria) Act 1995 and the Consumer
Credit (Victoria) Code;
"financial institution" means--
15 (a) an authorised deposit-taking
institution within the meaning of
the Banking Act 1959 of the
Commonwealth; or
(b) a body approved by the Governor
20 in Council by order published in
the Government Gazette.
18. Production of identity card
An inspector must produce his or her identity
card for inspection--
25 (a) before exercising a power under this
Part other than a requirement made by
post; and
(b) at any time during the exercise of a
power under this Part, if asked to do so.
30 Penalty: 10 penalty units.
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19. Accounts and other documents available
for inspection
(1) A registered credit provider or finance
broker must at all reasonable times at each
5 office at which that registered credit provider
or finance broker carries on business as a
credit provider or finance broker keep all
documents relating to the business carried on
at that office available for inspection by an
10 inspector in a form in which they can be
readily and expeditiously inspected by an
inspector.
Penalty: 10 penalty units.
(2) If the registration of a registered credit
15 provider has been surrendered or cancelled
in the last 3 years, the former registered
credit provider must make all documents
relating to the former business available for
inspection by an inspector in a form and at a
20 place where they can be readily and
expeditiously inspected by an inspector.
Penalty: 10 penalty units.
20. Specified persons to produce documents
and answer questions
25 (1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector may require a
registered credit provider or a finance broker
or a specified person at a time and place
30 specified by the inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
to the credit provider's business as a
credit provider or the finance broker's
35 business as a finance broker;
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(b) to supply orally or in writing
information required by the inspector
relating to that business;
(c) to produce to the inspector specified
5 documents or documents of a specified
class relating to that business.
(2) In this section "specified person" means--
(a) in relation to the business of a
registered credit provider--
10 (i) a person whose registration as a
credit provider has been
surrendered or cancelled within
the last 3 years; or
(ii) a person who is a director or
15 officer of a corporation which is a
registered credit provider; or
(iii) if the registration of a corporation
as a credit provider has been
surrendered or cancelled within
20 the last 3 years, a person who was
a director or officer of a
corporation at the time the
registration was surrendered or
cancelled; or
25 (iv) a person who is an executor,
administrator or trustee (including
a trustee company within the
meaning of the Trustee
Companies Act 1984) of the
30 estate of a deceased registered
credit provider who is carrying on
the business of the credit provider
pursuant to the Credit Acts; or
(b) in relation to the business of a finance
35 broker--
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(i) a person who is a director or
officer of a corporation which is a
finance broker; or
(ii) a person who is an executor,
5 administrator or trustee (including
a trustee company within the
meaning of the Trustee
Companies Act 1984) of the
estate of a deceased finance
10 broker who is carrying on the
business of the finance broker.
21. Third parties to produce documents and
answer questions relating to specified
business
15 For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector may require any
person who has possession, custody or
control of documents relating to a registered
20 credit provider's business as a credit provider
or a finance broker's business as a finance
broker--
(a) to answer orally or in writing any
questions put by the inspector relating
25 to the registered credit provider's
business as a credit provider or the
finance broker's business as a finance
broker;
(b) to supply orally or in writing
30 information required by the inspector
relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
class relating to that business.
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22. Ministers, police and public authorities to
produce information to inspectors
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
5 those Acts, the Director or an inspector may
request a specified public body within a time
specified by the Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
10 to a registered credit provider's business
as a credit provider or a finance
broker's business as a finance broker;
(b) to supply orally or in writing
information required by the inspector
15 relating to that business.
(2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a
20 request under sub-section (1).
(4) In this section "specified public body"
means--
(a) a Minister; or
(b) a public statutory authority; or
25 (c) a municipal council; or
(d) the Chief Commissioner of Police.
23. Certain other specified persons or bodies to
produce information
(1) For the purpose of monitoring compliance
30 with the Credit Acts or the regulations under
those Acts, the Director or an inspector may
require a specified person or body within a
time specified by the Director or inspector--
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(a) to answer orally or in writing any
questions put by the inspector relating
to a registered credit provider's business
as a credit provider or a finance
5 broker's business as a finance broker;
(b) to supply orally or in writing
information required by the inspector
relating to that business.
(2) An inspector can only make a requirement
10 under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means--
(a) a person who is a publisher of a
15 publication; or
(b) a person who is the owner or operator
of a broadcasting service; or
(c) a person who is the owner or operator
of a telecommunications service; or
20 (d) a person who is the owner or operator
of a postal service; or
(e) a financial institution.
24. Powers on production of documents
(1) If any documents are produced to an
25 inspector under section 20 or 21, the
inspector may--
(a) inspect the documents or authorise a
person to inspect the documents;
(b) make copies of or take extracts from
30 the documents;
(c) seize the documents if the inspector
considers the documents necessary for
the purpose of obtaining evidence for
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the purpose of any proceedings under
the Credit Acts or the regulations under
those Acts;
(d) seize the documents if the inspector--
5 (i) considers the documents
necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and
10 (ii) believes on reasonable grounds,
that it is necessary to seize the
documents in order to prevent
their concealment, loss or
destruction or their use in the
15 contravention of any OFTBA Act;
(e) secure any seized documents against
interference;
(f) retain possession of the documents in
accordance with this Part.
20 (2) An inspector must not require a person to
produce a document at a place other than the
person's place of business or the Office of
Fair Trading and Business Affairs without
the consent of the person.
25 25. Order requiring supply of information and
answers to questions
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector, with the written
30 approval of the Director, may apply to the
Magistrates' Court for an order requiring any
person at a time and place specified by an
inspector--
(a) to answer orally or in writing any
35 questions put by an inspector relating to
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a registered credit provider's business
as a credit provider or a finance
broker's business as a finance broker; or
(b) to supply orally or in writing
5 information required by an inspector in
relation to a registered credit provider's
business as a credit provider or a
finance broker's business as a finance
broker.
10 (2) If the Magistrates' Court is satisfied on the
basis of evidence presented by the Director
that the order is necessary for the purpose of
monitoring compliance with the Credit Acts
or the regulations under those Acts, the
15 Court may grant the order sought.
(3) An order under this section must state a day,
not later than 28 days after the making of the
order, on which the order ceases to have
effect.
20 (4) An inspector who executes an order under
this section must, as soon as practicable after
that execution, notify the Magistrates' Court
in writing of the time and place of execution
of the order.
25 26. Entry or search with consent
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector, with the consent of
the occupier of the premises, may--
30 (a) enter and search any premises;
(b) seize anything found on the premises
which the inspector believes on
reasonable grounds to be connected
with a contravention of the Credit Acts
35 or the regulations under those Acts;
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(c) examine and take and keep samples of
any goods found on the premises which
the inspector believes on reasonable
grounds to be connected with a
5 contravention of the Credit Acts or the
regulations under those Acts;
(d) inspect and make copies of, or take
extracts from, any document found on
the premises.
10 (2) An inspector must not enter and search any
premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has--
(a) produced his or her identity card for
15 inspection; and
(b) informed the occupier--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
20 search or to the seizure of
anything found during the search;
and
(iii) that the occupier may refuse to
consent to the taking of any
25 sample of goods or any copy or
extract from a document found on
the premises during the search;
and
(iv) that anything seized or taken
30 during the search with the consent
of the occupier may be used in
evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
35 must before entering the premises ask the
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occupier to sign an acknowledgment in the
prescribed form stating--
(a) that the occupier has been informed of
the purpose of the search and that
5 anything seized or taken in the search
with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
10 the entry and search; and
(c) that the occupier has consented to such
an entry and search; and
(d) the date and time that the occupier
consented.
15 (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating--
20 (a) that the occupier has consented to the
seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
25 must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
30 must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
27. Entry without consent or warrant
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(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector may (with the
assistance, if necessary, of another inspector
5 or a member of the police force) do all or
any of the following--
(a) enter and search any premises at which
a registered credit provider or finance
broker is carrying on business at any
10 time that the premises are open for
business or between the hours of 9 a.m.
and 5 p.m.;
(b) seize or secure against interference
anything that the Director or inspector
15 believes on reasonable grounds to be
connected with a contravention of the
Credit Acts or the regulations under
those Acts that is found on or in the
premises;
20 (c) inspect and make copies of or take
extracts from any document kept on the
premises.
(2) An inspector must not enter or search any
premises under sub-section (1) unless, before
25 that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
28. Search warrants
(1) An inspector, with the written approval of
30 the Director, may apply to a magistrate for
the issue of a search warrant in relation to
particular premises for the purpose of
monitoring compliance with the Credit Acts
or the regulations under those Acts.
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(2) If a magistrate is satisfied by the evidence,
on oath or by affidavit, of the inspector that
the warrant is necessary for the purpose of
monitoring compliance with the Credit Acts
5 or the regulations under those Acts, the
magistrate may issue a search warrant, in
accordance with the Magistrates' Court Act
1989, authorising an inspector named in the
warrant, together with any other person or
10 persons named or otherwise identified in the
warrant and with any necessary equipment--
(a) to enter the premises specified in the
warrant, if necessary by force; and
(b) to do all or any of the following--
15 (i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts
20 from--
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
25 with a contravention of the Credit Acts
or the regulations under those Acts.
(3) A search warrant issued under this section
must state--
(a) the purpose for which the search is
30 required; and
(b) any conditions to which the warrant is
subject; and
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(c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
5 issue of the warrant, on which the
warrant ceases to have effect.
(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
under the Magistrates' Court Act 1989
10 extend and apply to warrants under this
section.
29. Announcement before entry
(1) On executing a search warrant, the inspector
executing the warrant--
15 (a) must announce that he or she is
authorised by the warrant to enter the
premises; and
(b) if the inspector has been unable to
obtain unforced entry, must give any
20 person at the premises an opportunity
to allow entry to the premises.
(2) An inspector need not comply with sub-
section (1) if he or she believes on
reasonable grounds that immediate entry to
25 the premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the
search warrant is not frustrated.
30. Details of warrant to be given to occupier
30 (1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must--
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(a) identify himself or herself to the
occupier; and
(b) give to the occupier a copy of the
warrant.
5 (2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must--
(a) identify himself or herself to a person
(if any) at the premises; and
10 (b) give to the person a copy of the
warrant.
31. Seizure of things not mentioned in the
warrant
A search warrant under section 28 authorises
15 an inspector executing the search warrant, in
addition to the seizure of any thing of the
kind described in the warrant, to seize or
take a sample of any thing which is not of
the kind described in the warrant if--
20 (a) the inspector believes, on reasonable
grounds, that the thing--
(i) is of a kind which could have been
included in a search warrant
issued under this Part; or
25 (ii) will afford evidence about the
contravention of any OFTBA Act;
and
(b) in the case of seizure, the inspector
believes, on reasonable grounds, that it
30 is necessary to seize that thing in order
to prevent its concealment, loss or
destruction or its use in the
contravention of the Credit Acts or any
other OFTBA Act.
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32. Embargo notice
(1) An inspector executing a search warrant who
is authorised by that warrant to seize any
thing may, if the thing cannot, or cannot
5 readily, be physically seized and removed,
issue an embargo notice in the prescribed
form--
(a) by causing a copy of the notice to be
served on the occupier; or
10 (b) if the occupier cannot be located after
all reasonable steps have been taken to
do so, by affixing a copy of the notice
to the thing in a prominent position.
(2) A person who knows that an embargo notice
15 relates to a thing and who--
(a) sells; or
(b) leases; or
(c) without the written consent of the
inspector who issued the embargo
20 notice, moves; or
(d) transfers; or
(e) otherwise deals with--
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
25 exceeding 10 penalty units.
(3) It is a defence to a prosecution for an offence
against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
30 preserving it.
(4) Despite anything in any other Act, a sale,
lease, transfer or other dealing with a thing
in contravention of this section is void.
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33. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
under this Part, the inspector must give the
5 person, within 21 days of the seizure, a copy
of the document certified as correct by the
inspector.
(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
10 tribunals to be evidence of equal validity to
the original.
34. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
15 thing under this Part, the inspector must take
reasonable steps to return the document or
thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(2) If the document or thing seized has not been
20 returned within 3 months after it was seized,
the inspector must take reasonable steps to
return it unless--
(a) proceedings for the purpose for which
the document or thing was retained
25 have commenced within that 3 month
period and those proceedings
(including any appeal) have not been
completed; or
(b) the Magistrates' Court makes an order
30 under section 35 extending the period
during which the document or thing
may be retained.
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35. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court within 3 months after seizing a
5 document or other thing under this Part for
an extension of the period for which the
inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
10 document or other thing is necessary--
(a) for the purposes of an investigation into
whether a contravention of the Credit
Acts or the regulations under those
Acts has occurred; or
15 (b) to enable evidence of a contravention of
the Credit Acts or the regulations under
those Acts to be obtained for the
purposes of a proceeding under any of
those Acts.
20 (3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
36. Requirement to assist inspector during
entry
25 To the extent that it is reasonably necessary
to determine compliance with the Credit
Acts or the regulations under those Acts, an
inspector exercising a power of entry under
this Part who produces his or her identity
30 card for inspection by the occupier of the
premises or an agent or employee of the
occupier may require that person--
(a) to give information to the inspector,
orally or in writing; and
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(b) to produce documents to the inspector;
and
(c) to give reasonable assistance to the
inspector.
5 37. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of the Director or an inspector
10 under this Part.
Penalty: 10 penalty units.
38. Rule against self-incrimination does not
apply
(1) A person is not excused from answering a
15 question or producing a document under this
Part on the ground that the answer or
document might tend to incriminate the
person.
(2) If the person claims, before answering a
20 question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
25 39. Offence to give false or misleading
information
A person must not--
(a) give information to an inspector under
this Part that the person believes to be
30 false or misleading in any material
particular; or
(b) produce a document to an inspector
under this Part that the person knows to
be false or misleading in a material
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particular without indicating the respect
in which it is false or misleading and, if
practicable, providing correct
information.
5 Penalty: 10 penalty units.
40. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of
the Fair Trading Act 1999 apply (with any
10 necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Part as if any
reference in those sections to Part 10 of that
Act were a reference to this Part.
15 41. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person--
(a) at the last known place of business,
20 employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
(2) A person who provides a document or
25 information in response to a requirement of
an inspector under this Part may send that
document or information to the Director at
the Office of Fair Trading and Business
Affairs by registered post.
30 42. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
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information acquired by the inspector in
carrying out those functions.
Penalty: 10 penalty units.
(2) Sub-section (1) does not apply to the giving
5 of information--
(a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
10 (c) to the extent reasonably required to
enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
15 (d) to the Business Licensing Authority
established under the Business
Licensing Authority Act 1998; or
(e) with the written authority of the
Director; or
20 (f) with the written authority of the person
to whom the information relates.
8. New sections 89A and 89B inserted
After section 89 of the Principal Act insert--
"89A. Production of information to Authority
25 (1) The Authority may require a registered credit
provider or finance broker to answer any
question or provide information relating to
the business of the registered credit provider
or finance broker that the Authority
30 reasonably requires to carry out its functions
in relation to that registered credit provider
or finance broker.
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(2) A registered credit provider or finance
broker must not refuse or fail, without
reasonable excuse, to comply with a
requirement made by the Authority under
5 this section.
Penalty: 10 penalty units.
89B. Rule against self-incrimination does not
apply
(1) A registered credit provider or finance
10 broker is not excused from answering a
question or providing information under
section 89A on the ground that the answer or
the information might tend to incriminate the
registered credit provider or finance broker.
15 (2) If the registered credit provider or finance
broker claims, before answering a question,
that the answer might tend to incriminate the
registered credit provider or finance broker,
the answer is not admissible in evidence in
20 any criminal proceedings, other than in
proceedings in respect of the falsity of the
answer.".
_______________
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PART 3--MOTOR CAR TRADERS ACT 1986
9. Principal Act
No. 104/1986.
In this Part the Motor Car Traders Act 1986 is
Reprint No. 3
called the Principal Act. as at 1 July
1998.
Subsequently
amended by
No. 101/1998.
5 10. Definitions
In section 3(1) of the Principal Act--
(a) for the definition of "Director" substitute--
' "Director" means the Director within the
meaning of the Fair Trading Act
10 1999;';
(b) insert the following definitions--
' "financial institution" means--
(a) an authorised deposit-taking
institution within the meaning of
15 the Banking Act 1959 of the
Commonwealth; or
(b) a body approved by the Governor
in Council by order published in
the Government Gazette;
20 "inspector" means an inspector appointed
under the Fair Trading Act 1999;
"occupier" in relation to a premises, means
a person who appears to be of or over
16 years of age and who appears to be
25 in control of the premises;
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"OFTBA Act" has the same meaning as it
has in the Fair Trading Act 1999;'.
11. Display of licence
5 In section 25(1) of the Principal Act for "any
person who by virtue of section 62(1) or (2) of the
Consumer Affairs Act 1972 is an inspector under
that Act" substitute "an inspector".
12. Cooling-off periods
10 (1) In section 43 of the Principal Act--
(a) in sub-section (1) after "used motor car"
insert "or an off-trade-premises sales
agreement of any motor car";
(b) in sub-sections (3) and (4) omit "used"
15 (wherever occurring).
(2) After section 43(7) of the Principal Act insert--
'(8) In this section "off-trade-premises sales
agreement" means an agreement for the sale
of a motor car that is made or entered into in
20 the presence of the purchaser (or a person
acting on behalf of the purchaser) and the
motor car trader (or a person acting on behalf
of the motor car trader) at--
(a) a private residence other than a private
25 residence which is the business
premises of the motor car trader or the
person acting on behalf of the motor car
trader; or
(b) the workplace of the purchaser--
30 unless the agreement was entered into at
either of those premises at the request of the
purchaser.'.
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13. New sections 82 to 82AY substituted
For sections 82 and 82A of the Principal Act
substitute--
'82. Production of identity card
5 An inspector must produce his or her identity
card for inspection--
(a) before exercising a power under this
Division other than a requirement made
by post; and
10 (b) at any time during the exercise of a
power under this Division, if asked to
do so.
Penalty: 10 penalty units.
82A. Documents available for inspection
15 (1) A licensed motor car trader must at all
reasonable times at each office at which that
trader carries on business as a motor car
trader keep all documents relating to the
business carried on at that office available
20 for inspection by an inspector in a form in
which they can be readily and expeditiously
inspected by an inspector.
Penalty: 50 penalty units.
(2) If the licence of a licensed motor car trader
25 has been surrendered or cancelled in the last
3 years, the former licensee must make all
documents relating to the former business
available for inspection by an inspector in a
form and at a place where they can be
30 readily and expeditiously inspected by an
inspector.
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Penalty: 50 penalty units.
82AA. Specified persons to produce documents
and answer questions
5 (1) For the purpose of monitoring compliance
with this Act or the regulations, an inspector
may require a licensed motor car trader or a
specified person at a time and place specified
by the inspector--
10 (a) to answer orally or in writing any
questions put by the inspector relating
to the licensed motor car trader's
business as a motor car trader;
(b) to supply orally or in writing
15 information required by the inspector
relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
class relating to that business.
20 (2) In this section--
"specified person", in relation to the
business of a licensed motor car trader,
means--
(a) a person whose licence has been
25 surrendered or cancelled within
the last 3 years; or
(b) a person who is a director or
officer of a corporation which is a
licensed motor car trader; or
30 (c) if the licence of a corporation has
been surrendered or cancelled
within the last 3 years, a person
who was a director or officer of
the corporation at the time the
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licence was surrendered or
cancelled; or
(d) a person who under section 33 is
carrying on the business of a
5 licensed motor car trader.
82AB. Third parties to produce documents and
answer questions relating to trader's
business
For the purpose of monitoring compliance
10 with this Act or the regulations, an inspector
may require any person who has possession,
custody or control of documents relating to a
licensed motor car trader's business as a
motor car trader--
15 (a) to answer orally or in writing any
questions put by the inspector relating
to the motor car trader's business as a
motor car trader;
(b) to supply orally or in writing
20 information required by the inspector
relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
class relating to that business.
25 82AC. Ministers, police, and public authorities to
produce information to inspectors
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
or an inspector may request a specified
30 public body within a time specified by the
Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
to a licensed motor car trader's business
35 as a motor car trader;
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(b) to supply orally or in writing
information required by the inspector
relating to that business.
(2) An inspector can only make a request under
5 sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a
request under sub-section (1).
(4) In this section "specified public body"
10 means--
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
(d) the Chief Commissioner of Police.
15 82AD. Certain other specified persons or bodies to
produce information
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
or an inspector may require a specified
20 person or body within a time specified by the
Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
to a licensed motor car trader's business
25 as a motor car trader;
(b) to supply orally or in writing
information required by the inspector
relating to that business.
(2) An inspector can only make a requirement
30 under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means--
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(a) a person who is a publisher of a
publication, or
(b) a person who is the owner or operator
of a broadcasting service; or
5 (c) a person who is the owner or operator
of a telecommunications service; or
(d) a person who is the owner or operator
of a postal service; or
(e) a financial institution.
10 82AE. Powers on production of documents
(1) If any documents are produced to an
inspector under section 82AA or 82AB, the
inspector may--
(a) inspect the documents or authorise a
15 person to inspect the documents;
(b) make copies of or take extracts from
the documents;
(c) seize the documents if the inspector
considers the documents necessary for
20 the purpose of obtaining evidence for
the purpose of any proceedings under
this Act or the regulations;
(d) seize the documents if the inspector--
(i) considers the documents
25 necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and
(ii) believes on reasonable grounds,
30 that it is necessary to seize the
documents in order to prevent
their concealment, loss or
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destruction or their use in the
contravention of any OFTBA Act;
(e) secure any seized documents against
interference;
5 (f) retain possession of the documents in
accordance with this Division.
(2) An inspector must not require a person to
produce a document at a place other than the
person's place of business or the Office of
10 Fair Trading and Business Affairs without
the consent of the person.
82AF. Order requiring supply of information and
answers to questions
(1) For the purpose of monitoring compliance
15 with this Act, an inspector, with the written
approval of the Director, may apply to the
Magistrates' Court for an order requiring any
person at a time and place specified by an
inspector--
20 (a) to answer orally or in writing any
questions put by an inspector relating to
a licensed motor car trader's business;
or
(b) to supply orally or in writing
25 information required by an inspector in
relation to a licensed motor car trader's
business.
(2) If the Magistrates' Court is satisfied on the
basis of evidence presented by the Director
30 that the order is necessary for the purpose of
monitoring compliance with this Act or the
regulations, the Court may grant the order
sought.
(3) An order under this section must state a day,
35 not later than 28 days after the making of the
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order, on which the order ceases to have
effect.
(4) An inspector who executes an order under
this section must, as soon as practicable after
5 that execution, notify the Magistrates' Court
in writing of the time and place of execution
of the order.
82AG. Entry or search with consent
(1) For the purpose of monitoring compliance
10 with this Act or the regulations, an inspector,
with the consent of the occupier of the
premises, may--
(a) enter and search any premises;
(b) seize anything found on the premises
15 which the inspector believes on
reasonable grounds to be connected
with a contravention of this Act or the
regulations;
(c) examine and take and keep samples of
20 any goods found on the premises which
the inspector believes on reasonable
grounds to be connected with a
contravention of this Act or the
regulations;
25 (d) inspect and make copies of, or take
extracts from, any document found on
the premises.
(2) An inspector must not enter and search any
premises with the consent of the occupier
30 unless, before the occupier consents to that
entry, the inspector has--
(a) produced his or her identity card for
inspection; and
(b) informed the occupier--
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(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of
5 anything found during the search;
and
(iii) that the occupier may refuse to
consent to the taking of any
sample of goods or any copy or
10 extract from a document found on
the premises during the search;
and
(iv) that anything seized or taken
during the search with the consent
15 of the occupier may be used in
evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
20 occupier to sign an acknowledgment in the
prescribed form stating--
(a) that the occupier has been informed of
the purpose of the search and that
anything seized or taken in the search
25 with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
the entry and search; and
30 (c) that the occupier has consented to such
an entry and search; and
(d) the date and time that the occupier
consented.
(4) If an occupier consents to the seizure or
35 taking of any thing during a search under this
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section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating--
(a) that the occupier has consented to the
5 seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
must be given a copy of the signed
10 acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
must be presumed, until the contrary is
15 proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
82AH. Entry without consent or warrant
(1) For the purpose of monitoring compliance
20 with this Act or the regulations, an inspector
may (with the assistance, if necessary, of
another inspector or a member of the police
force) do all or any of the following--
(a) enter and search any premises at which
25 a licensed motor car trader is carrying
on business at any time that the
premises are open for business or
between the hours of 9 a.m. and 5 p.m.;
(b) seize or secure against interference
30 anything that the Director or inspector
believes on reasonable grounds to be
connected with a contravention of this
Act or the regulations that is found on
or in the premises;
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(c) inspect and make copies of or take
extracts from any document kept on the
premises.
(2) An inspector must not enter or search any
5 premises under sub-section (1) unless, before
that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
82AI. Search warrants
10 (1) An inspector, with the written approval of
the Director, may apply to a magistrate for
the issue of a search warrant in relation to
particular premises for the purpose of
monitoring compliance with this Act or the
15 regulations.
(2) If a magistrate is satisfied by the evidence,
on oath or by affidavit, of the inspector that
the warrant is necessary for the purpose of
monitoring compliance with this Act or the
20 regulations, the magistrate may issue a
search warrant, in accordance with the
Magistrates' Court Act 1989, authorising
an inspector named in the warrant, together
with any other person or persons named or
25 otherwise identified in the warrant and with
any necessary equipment--
(a) to enter the premises specified in the
warrant, if necessary by force; and
(b) to do all or any of the following--
30 (i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
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(v) make copies of or take extracts
from--
a thing or things of a particular kind
named or described in the warrant and
5 which the inspector believes, on
reasonable grounds, to be connected
with a contravention of this Act or the
regulations.
(3) A search warrant issued under this section
10 must state--
(a) the purpose for which the search is
required; and
(b) any conditions to which the warrant is
subject; and
15 (c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
issue of the warrant, on which the
20 warrant ceases to have effect.
(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
under the Magistrates' Court Act 1989
extend and apply to warrants under this
25 section.
82AJ. Announcement before entry
(1) On executing a search warrant, the inspector
executing the warrant--
(a) must announce that he or she is
30 authorised by the warrant to enter the
premises; and
(b) if the inspector has been unable to
obtain unforced entry, must give any
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person at the premises an opportunity
to allow entry to the premises.
(2) An inspector need not comply with sub-
section (1) if he or she believes on
5 reasonable grounds that immediate entry to
the premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the
search warrant is not frustrated.
10 82AK. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must--
(a) identify himself or herself to the
15 occupier; and
(b) give to the occupier a copy of the
warrant.
(2) If the occupier is not present at premises
where a search warrant is being executed, the
20 inspector must--
(a) identify himself or herself to a person
(if any) at the premises; and
(b) give to the person a copy of the
warrant.
25 82AL. Seizure of things not mentioned in the
warrant
A search warrant under section 82AI
authorises an inspector executing the search
warrant, in addition to the seizure of any
30 thing of the kind described in the warrant, to
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seize or take a sample of any thing which is
not of the kind described in the warrant if--
(a) the inspector believes, on reasonable
grounds, that the thing--
5 (i) is of a kind which could have been
included in a search warrant
issued under this Division; or
(ii) will afford evidence about the
contravention of any OFTBA Act;
10 and
(b) in the case of seizure, the inspector
believes, on reasonable grounds, that it
is necessary to seize that thing in order
to prevent its concealment, loss or
15 destruction or its use in the
contravention of this Act or any other
OFTBA Act.
82AM. Embargo notice
(1) An inspector executing a search warrant who
20 is authorised by that warrant to seize any
thing may, if the thing cannot, or cannot
readily, be physically seized and removed,
issue an embargo notice in the prescribed
form--
25 (a) by causing a copy of the notice to be
served on the occupier; or
(b) if the occupier cannot be located after
all reasonable steps have been taken to
do so, by affixing a copy of the notice
30 to the thing in a prominent position.
(2) A person who knows that an embargo notice
relates to a thing and who--
(a) sells; or
(b) leases; or
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(c) without the written consent of the
inspector who issued the embargo
notice, moves; or
(d) transfers; or
5 (e) otherwise deals with--
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 50 penalty units.
(3) It is a defence to a prosecution for an offence
10 against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
15 lease, transfer or other dealing with a thing
in contravention of this section is void.
82AN. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
20 under this Division, the inspector must give
the person, within 21 days of the seizure, a
copy of the document certified as correct by
the inspector.
(2) A copy of a document certified under sub-
25 section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
82AO. Retention and return of seized documents
or things
30 (1) If an inspector seizes a document or other
thing under this Division, the inspector must
take reasonable steps to return the document
or thing to the person from whom it was
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seized if the reason for its seizure no longer
exists.
(2) If the document or thing seized has not been
returned within 3 months after it was seized,
5 the inspector must take reasonable steps to
return it unless--
(a) proceedings for the purpose for which
the document or thing was retained
have commenced within that 3 month
10 period and those proceedings
(including any appeal) have not been
completed; or
(b) the Magistrates' Court makes an order
under section 82AP extending the
15 period during which the document or
thing may be retained.
82AP. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
20 Court within 3 months after seizing a
document or other thing under this Division
for an extension of the period for which the
inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
25 extension if it is satisfied that retention of the
document or other thing is necessary--
(a) for the purposes of an investigation into
whether a contravention of this Act or
the regulations has occurred; or
30 (b) to enable evidence of a contravention of
this Act or the regulations to be
obtained for the purposes of a
proceeding under this Act.
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(3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
82AQ. Requirement to assist inspector during
5 entry
To the extent that it is reasonably necessary
to determine compliance with this Act or the
regulations, an inspector exercising a power
of entry under this Division who produces
10 his or her identity card for inspection by the
occupier of the premises or an agent or
employee of the occupier may require that
person--
(a) to give information to the inspector,
15 orally or in writing; and
(b) to produce documents to the inspector;
and
(c) to give reasonable assistance to the
inspector.
20 82AR. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of an inspector under this
25 Division.
Penalty: 50 penalty units.
82AS. Rule against self-incrimination does not
30 apply
(1) A person is not excused from answering a
question or producing a document under this
Division on the ground that the answer or
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document might tend to incriminate the
person.
(2) If the person claims, before answering a
question, that the answer might tend to
5 incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
82AT. Offence to give false or misleading
10 information
A person must not--
(a) give information to an inspector under
this Division that the person believes to
be false or misleading in any material
15 particular; or
(b) produce a document to an inspector
under this Division that the person
knows to be false or misleading in a
material particular without indicating
20 the respect in which it is false or
misleading and, if practicable,
providing correct information.
Penalty: 50 penalty units.
82AU. Application of provisions relating to
25 inspections
Sections 120, 135, 136, 137, 138 and 139 of
the Fair Trading Act 1999 apply (with any
necessary modifications) in relation to the
exercise or attempted exercise of a power of
30 an inspector under this Division as if any
reference in those sections to Part 10 of that
Act were a reference to this Division.
82AV. Service of documents
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(1) A written requirement by an inspector under
this Division may be given personally or by
registered post to a person--
(a) at the last known place of business,
5 employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
(2) A person who provides a document or
10 information in response to a requirement of
an inspector under this Division may send
that document or information to the Director
at the Office of Fair Trading and Business
Affairs by registered post.
15 82AW. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Division, give to any
other person, whether directly or indirectly,
20 any information acquired by the inspector in
carrying out those functions.
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply to the giving
of information--
25 (a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
(c) to the extent reasonably required to
30 enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
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(d) to the Business Licensing Authority
established under the Business
Licensing Authority Act 1998; or
(e) with the written authority of the
5 Director; or
(f) with the written authority of the person
to whom the information relates.
82AX. Production of information to Authority
(1) The Authority may require a licensed motor
10 car trader to answer any question or provide
information relating to the business of the
motor car trader that the Authority
reasonably requires to carry out its functions
in relation to that motor car trader.
15 (2) A licensed motor car trader must not refuse
or fail, without reasonable excuse, to comply
with a requirement made by the Authority
under this section.
Penalty: 50 penalty units.
20 82AY. Rule against self-incrimination does not
apply
(1) A licensed motor car trader is not excused
from answering a question or providing
information under section 82AX on the
25 ground that the answer or the information
might tend to incriminate the motor car
trader.
(2) If the licensed motor car trader claims,
before answering a question, that the answer
30 might tend to incriminate the motor car
trader, the answer is not admissible in
evidence in any criminal proceedings, other
than in proceedings in respect of the falsity
of the answer.'.
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_______________
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PART 4--TRAVEL AGENTS ACT 1986
14. Principal Act
No. 52/1986.
In this Part the Travel Agents Act 1986 is called
Reprint No. 2
the Principal Act. as at 1 July
1998.
Subsequently
amended by
No. 101/1998.
5 15. Definitions
In section 3(1) of the Principal Act--
(a) for the definition of "the Director"
substitute--
' "the Director" means the Director within
10 the meaning of the Fair Trading Act
1999;';
(b) insert the following definitions--
' "financial institution" means--
(a) an authorised deposit-taking
15 institution within the meaning of
the Banking Act 1959 of the
Commonwealth; or
(b) a body approved by the Governor
in Council by order published in
20 the Government Gazette;
"inspector" means an inspector appointed
under the Fair Trading Act 1999;
"occupier" in relation to a premises, means
a person who appears to be of or over
25 16 years of age and who appears to be
in control of the premises;
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"OFTBA Act" has the same meaning as it
has in the Fair Trading Act 1999;'.
16. Repeal of sections 26 and 27
Sections 26 and 27 of the Principal Act are
5 repealed.
17. Restraint of unjust conduct
(1) In section 28 of the Principal Act for sub-section
(3) substitute--
"(3) If, on the application of the Director, the
10 Tribunal is satisfied that a person has failed
to observe an undertaking given by the
person under section 146 of the Fair
Trading Act 1999, the Tribunal may make
an order under sub-section (1) against the
15 person.".
(2) In section 28(4) of the Principal Act for "section
26(1)(a)" substitute "section 146 of the Fair
Trading Act 1999".
18. New Part 3A inserted
20 After Part 3 of the Principal Act insert--
'PART 3A--INSPECTION POWERS
39A. Production of identity card
An inspector must produce his or her identity
card for inspection--
25 (a) before exercising a power under this
Part other than a requirement made by
post; and
(b) at any time during the exercise of a
power under this Part, if asked to do so.
30 Penalty: 10 penalty units.
39B. Documents available for inspection
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(1) A licensee must at all reasonable times at
each office at which that licensee carries on
business as a travel agent keep all documents
relating to the business carried on at that
5 office available for inspection by an
inspector in a form in which they can be
readily and expeditiously inspected by an
inspector.
Penalty: 50 penalty units.
10 (2) If the licence of a licensee has been
surrendered or cancelled in the last 3 years,
the former licensee must make all documents
relating to the former business available for
inspection by an inspector in a form and at a
15 place where they can be readily and
expeditiously inspected by an inspector.
Penalty: 50 penalty units.
39C. Licensee or specified person to produce
documents and answer questions
20 (1) For the purpose of monitoring compliance
with this Act, an inspector may require a
licensee or a specified person at a time and
place specified by the inspector--
(a) to answer orally or in writing any
25 questions put by the inspector relating
to the licensee's business as a travel
agent;
(b) to supply orally or in writing
information required by the inspector
30 relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
class relating to that business.
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(2) In this section "specified person", in
relation to a licensee's business as a travel
agent, means--
(a) a person whose licence has been
5 surrendered or cancelled within the last
3 years; or
(b) a person who is a director or officer of
a corporation which is a licensee; or
(c) if the licence of a corporation has been
10 surrendered or cancelled within the last
3 years, a person who was a director or
officer of the corporation at the time the
licence was surrendered or cancelled;
or
15 (d) a person who is an executor,
administrator or trustee (including a
trustee company within the meaning of
the Trustee Companies Act 1984) of
the estate of a deceased licensee who is
20 carrying on the business of the licensee
pursuant to this Act.
39D. Third parties to produce documents and
answer questions relating to licensee's
business
25 For the purpose of monitoring compliance
with this Act, an inspector may require any
person who has possession, custody or
control of documents relating to a licensee's
business as a travel agent--
30 (a) to answer orally or in writing any
questions put by the inspector relating
to the licensee's business as a travel
agent;
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(b) to supply orally or in writing
information required by the inspector
relating to that business;
(c) to produce to the inspector specified
5 documents or documents of a specified
class relating to that business.
39E. Ministers, police and public authorities to
produce information to inspectors
(1) For the purpose of monitoring compliance
10 with this Act, the Director or an inspector
may request a specified public body within a
time specified by the Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
15 to a licensee's business as a travel
agent;
(b) to supply orally or in writing
information required by the inspector
relating to that business.
20 (2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a
request under sub-section (1).
25 (4) In this section "specified public body"
means--
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
30 (d) the Chief Commissioner of Police.
39F. Certain other specified persons or bodies to
produce information
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(1) For the purpose of monitoring compliance
with this Act, the Director or an inspector
may require a specified person or body
within a time specified by the Director or
5 inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
to a licensee's business as a travel
agent;
10 (b) to supply orally or in writing
information required by the inspector
relating to that business.
(2) An inspector can only make a requirement
under sub-section (1) with the written
15 consent of the Director.
(3) In this section "specified person or body"
means--
(a) a person who is a publisher of a
publication; or
20 (b) a person who is the owner or operator
of a broadcasting service; or
(c) a person who is the owner or operator
of a telecommunications service; or
(d) a person who is the owner or operator
25 of a postal service; or
(e) a financial institution.
39G. Powers on production of documents
(1) If any documents are produced to an
inspector under section 39C or 39D, the
30 inspector may--
(a) inspect the documents or authorise a
person to inspect the documents;
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(b) make copies of or take extracts from
the documents;
(c) seize the documents if the inspector
considers the documents necessary for
5 the purpose of obtaining evidence for
the purpose of any proceedings under
this Act;
(d) seize the documents if the inspector--
(i) considers the documents
10 necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and
(ii) believes on reasonable grounds,
15 that it is necessary to seize the
documents in order to prevent
their concealment, loss or
destruction or their use in the
contravention of any OFTBA Act;
20 (e) secure any seized documents against
interference;
(f) retain possession of the documents in
accordance with this Part.
(2) An inspector must not require a person to
25 produce a document at a place other than the
person's place of business or the Office of
Fair Trading and Business Affairs without
the consent of the person.
39H. Order requiring supply of information and
30 answers to questions
(1) For the purpose of monitoring compliance
with this Act, an inspector, with the written
approval of the Director, may apply to the
Magistrates' Court for an order requiring any
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person at a time and place specified by an
inspector--
(a) to answer orally or in writing any
questions put by an inspector relating to
5 a licensee's business as a travel agent;
or
(b) to supply orally or in writing
information required by an inspector in
relation to a licensee's business as a
10 travel agent.
(2) If the Magistrates' Court is satisfied on the
basis of evidence presented by the Director
that the order is necessary for the purpose of
monitoring compliance with this Act, the
15 Court may grant the order sought.
(3) An order under this section must state a day,
not later than 28 days after the making of the
order, on which the order ceases to have
effect.
20 (4) An inspector who executes an order under
this section must, as soon as practicable after
that execution, notify the Magistrates' Court
in writing of the time and place of execution
of the order.
25 39I. Entry or search with consent
(1) For the purpose of monitoring compliance
with this Act, an inspector, with the consent
of the occupier of the premises, may--
(a) enter and search any premises;
30 (b) seize anything found on the premises
which the inspector believes on
reasonable grounds to be connected
with a contravention of this Act;
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(c) examine and take and keep samples of
any goods found on the premises which
the inspector believes on reasonable
grounds to be connected with a
5 contravention of this Act;
(d) inspect and make copies of, or take
extracts from, any document found on
the premises.
(2) An inspector must not enter and search any
10 premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has--
(a) produced his or her identity card for
inspection; and
15 (b) informed the occupier--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of
20 anything found during the search;
and
(iii) that the occupier may refuse to
consent to the taking of any
sample of goods or any copy or
25 extract from a document found on
the premises during the search;
and
(iv) that anything seized or taken
during the search with the consent
30 of the occupier may be used in
evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
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occupier to sign an acknowledgment in the
prescribed form stating--
(a) that the occupier has been informed of
the purpose of the search and that
5 anything seized or taken in the search
with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
10 the entry and search; and
(c) that the occupier has consented to such
an entry and search; and
(d) the date and time that the occupier
consented.
15 (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating--
20 (a) that the occupier has consented to the
seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
25 must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
30 must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
39J. Entry without consent or warrant
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(1) For the purpose of monitoring compliance
with this Act, an inspector may (with the
assistance, if necessary, of another inspector
or a member of the police force) do all or
5 any of the following--
(a) enter and search any premises at which
a licensee is carrying on business at any
time that the premises are open for
business or between the hours of 9 a.m.
10 and 5 p.m.;
(b) seize or secure against interference
anything that the Director or inspector
believes on reasonable grounds to be
connected with a contravention of this
15 Act that is found on or in the premises;
(c) inspect and make copies of or take
extracts from any document kept on the
premises.
(2) An inspector must not enter or search any
20 premises under sub-section (1) unless, before
that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
39K. Search warrants
25 (1) An inspector, with the written approval of
the Director, may apply to a magistrate for
the issue of a search warrant in relation to
particular premises for the purpose of
monitoring compliance with this Act.
30 (2) If a magistrate is satisfied by the evidence,
on oath or by affidavit, of the inspector that
the warrant is necessary for the purpose of
monitoring compliance with this Act, the
magistrate may issue a search warrant, in
35 accordance with the Magistrates' Court Act
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1989, authorising an inspector named in the
warrant, together with any other person or
persons named or otherwise identified in the
warrant and with any necessary equipment--
5 (a) to enter the premises specified in the
warrant, if necessary by force; and
(b) to do all or any of the following--
(i) search for;
(ii) seize;
10 (iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts
from--
a thing or things of a particular kind
15 named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with a contravention of this Act.
(3) A search warrant issued under this section
20 must state--
(a) the purpose for which the search is
required; and
(b) any conditions to which the warrant is
subject; and
25 (c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
issue of the warrant, on which the
30 warrant ceases to have effect.
(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
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under the Magistrates' Court Act 1989
extend and apply to warrants under this
section.
39L. Announcement before entry
5 (1) On executing a search warrant, the inspector
executing the warrant--
(a) must announce that he or she is
authorised by the warrant to enter the
premises; and
10 (b) if the inspector has been unable to
obtain unforced entry, must give any
person at the premises an opportunity
to allow entry to the premises.
(2) An inspector need not comply with sub-
15 section (1) if he or she believes on
reasonable grounds that immediate entry to
the premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the
20 search warrant is not frustrated.
39M. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must--
25 (a) identify himself or herself to the
occupier; and
(b) give to the occupier a copy of the
warrant.
(2) If the occupier is not present at premises
30 where a search warrant is being executed, the
inspector must--
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(a) identify himself or herself to a person
(if any) at the premises; and
(b) give to the person a copy of the
warrant.
5 39N. Seizure of things not mentioned in the
warrant
A search warrant under section 39K
authorises an inspector executing the search
warrant, in addition to the seizure of any
10 thing of the kind described in the warrant, to
seize or take a sample of any thing which is
not of the kind described in the warrant if--
(a) the inspector believes, on reasonable
grounds, that the thing--
15 (i) is of a kind which could have been
included in a search warrant
issued under this Part; or
(ii) will afford evidence about the
contravention of any OFTBA Act;
20 and
(b) in the case of seizure, the inspector
believes, on reasonable grounds, that it
is necessary to seize that thing in order
to prevent its concealment, loss or
25 destruction or its use in the
contravention of this Act or any other
OFTBA Act.
39O. Embargo notice
(1) An inspector executing a search warrant who
30 is authorised by that warrant to seize any
thing may, if the thing cannot, or cannot
readily, be physically seized and removed,
issue an embargo notice in the prescribed
form--
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(a) by causing a copy of the notice to be
served on the occupier; or
(b) if the occupier cannot be located after
all reasonable steps have been taken to
5 do so, by affixing a copy of the notice
to the thing in a prominent position.
(2) A person who knows that an embargo notice
relates to a thing and who--
(a) sells; or
10 (b) leases; or
(c) without the written consent of the
inspector who issued the embargo
notice, moves; or
(d) transfers; or
15 (e) otherwise deals with--
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 50 penalty units.
(3) It is a defence to a prosecution for an offence
20 against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
25 lease, transfer or other dealing with a thing
in contravention of this section is void.
39P. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
30 under this Part, the inspector must give the
person, within 21 days of the seizure, a copy
of the document certified as correct by the
inspector.
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(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
5 39Q. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
thing under this Part, the inspector must take
reasonable steps to return the document or
10 thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(2) If the document or thing seized has not been
returned within 3 months after it was seized,
the inspector must take reasonable steps to
15 return it unless--
(a) proceedings for the purpose for which
the document or thing was retained
have commenced within that 3 month
period and those proceedings
20 (including any appeal) have not been
completed; or
(b) the Magistrates' Court makes an order
under section 39R extending the period
during which the document or thing
25 may be retained.
39R. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court within 3 months after seizing a
30 document or other thing under this Part for
an extension of the period for which the
inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
35 document or other thing is necessary--
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(a) for the purposes of an investigation into
whether a contravention of this Act has
occurred; or
(b) to enable evidence of a contravention of
5 this Act to be obtained for the purposes
of a proceeding under this Act.
(3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
10 39S. Requirement to assist inspector during
entry
To the extent that it is reasonably necessary
to determine compliance with this Act, an
inspector exercising a power of entry under
15 this Part who produces his or her identity
card for inspection by the occupier of the
premises or an agent or employee of the
occupier may require that person--
(a) to give information to the inspector,
20 orally or in writing; and
(b) to produce documents to the inspector;
and
(c) to give reasonable assistance to the
inspector.
25 39T. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of the Director or an inspector
30 under this Part.
Penalty: 50 penalty units.
39U. Rule against self-incrimination does not
apply
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1999
s. 18
Act No.
(1) A person is not excused from answering a
question or producing a document under this
Part on the ground that the answer or
document might tend to incriminate the
5 person.
(2) If the person claims, before answering a
question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
10 proceedings, other than in proceedings in
respect of the falsity of the answer.
39V. Offence to give false or misleading
information
A person must not--
15 (a) give information to an inspector under
this Part that the person believes to be
false or misleading in any material
particular; or
(b) produce a document to an inspector
20 under this Part that the person knows to
be false or misleading in a material
particular without indicating the respect
in which it is false or misleading and, if
practicable, providing correct
25 information.
Penalty: 50 penalty units.
39W. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of
30 the Fair Trading Act 1999 apply (with any
necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Part as if any
reference in those sections to Part 10 of that
35 Act were a reference to this Part.
64
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 18
Act No.
39X. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person--
5 (a) at the last known place of business,
employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
10 (2) A person who provides a document or
information in response to a requirement of
an inspector under this Part may send that
document or information to the Director at
the Office of Fair Trading and Business
15 Affairs by registered post.
39Y. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
20 person, whether directly or indirectly, any
information acquired by the inspector in
carrying out those functions.
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply to the giving
25 of information--
(a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
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1999
s. 18
Act No.
(c) to the extent reasonably required to
enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
5 Commonwealth; or
(d) to the Business Licensing Authority
established under the Business
Licensing Authority Act 1998; or
(e) with the written authority of the
10 Director; or
(f) with the written authority of the person
to whom the information relates.
39Z. Production of information to Authority
(1) The Authority may require a licensee to
15 answer any question or provide information
relating to the business of the licensee that
the Authority reasonably requires to carry
out its functions in relation to that licensee.
(2) A licensee must not refuse or fail, without
20 reasonable excuse, to comply with a
requirement made by the Authority under
this section.
Penalty: 50 penalty units.
39ZA. Rule against self-incrimination does not
25 apply
(1) A licensee is not excused from answering a
question or providing information under
section 39Z on the ground that the answer or
the information might tend to incriminate the
30 licensee.
(2) If the licensee claims, before answering a
question, that the answer might tend to
incriminate the licensee, the answer is not
admissible in evidence in any criminal
66
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 19
Act No.
proceedings, other than in proceedings in
respect of the falsity of the answer.'.
19. Repeal of sections 41 and 42
Sections 41 and 42 of the Principal Act are
5 repealed.
_______________
67
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 20
Act No.
PART 5--AMENDMENT OF OTHER ACTS
20. Architects Act 1991
No. 13/1991. In section 47(2)(a) of the Architects Act 1991 for
Reprint No. 2
"Consumer Affairs Act 1972" substitute "Fair
as at
5 Trading Act 1999".
20 August
1998.
21. Associations Incorporation Act 1981
No. (1) In section 3(1) of the Associations Incorporation
9713/1981.
Act 1981 insert--
Reprint No. 4
as at 1 July
' "inspector" means an inspector appointed under
1998.
10 the Fair Trading Act 1999;'.
(2) Sections 37A and 37B of the Associations
Incorporation Act 1981 are repealed.
(3) In section 37C of the Associations Incorporation
Act 1981, sub-sections (1) and (2) are repealed.
15 22. Building Act 1993
No. 126/1993. (1) In section 137A(1)(d) of the Building Act 1993,
Reprint No. 3
for "section 11, 12 or 17 of the Fair Trading Act
as at
1985" substitute "section 9, 11 or 12 of the Fair
1 January
1999.
Trading Act 1999".
20 (2) After section 137A(2) of the Building Act 1993
insert--
'(3) A reference--
(a) in any order made under section 135; or
(b) in any instrument or agreement which
25 is required insurance--
to "section 11, 12 or 17 of the Fair Trading
Act 1985", is, to the extent that it relates to
any period on or after the commencement of
section 22 of the Fair Trading (Inspectors
30 Powers and Other Amendments) Act
68
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 22
Act No.
1999, deemed to include a reference to
"section 9, 11 or 12 of the Fair Trading Act
1999".'.
(3) In section 137B(4) of the Building Act 1993 for
5 "Director of the Office of Fair Trading and
Business Affairs in the Department of Justice"
substitute "Director of Fair Trading within the
meaning of the Fair Trading Act 1999".
(4) In section 137B(5) of the Building Act 1993 after
10 "Director" insert "of Fair Trading".
(5) In section 221S(1)(e) of the Building Act 1993
after "Fair Trading Act 1985" insert "or section
10, 11, 12, 17, 19 and 21 of the Fair Trading Act
1999".
15 (6) In section 221ZD(2)(e) of the Building Act 1993
after "Fair Trading Act 1985" insert "or section
10, 11, 12, 17, 19 and 21 of the Fair Trading Act
1999".
(7) In section 221ZT(c) of the Building Act 1993, for
20 "section 11, 12 or 17 of the Fair Trading Act
1985" substitute "section 9, 11 or 12 of the Fair
Trading Act 1999".
(8) At the end of section 221ZT of the Building Act
1993 insert--
25 '(2) A reference--
(a) in any order made under section
221ZQ; or
(b) in any instrument or agreement which
is required insurance (within the
30 meaning of section 221B(1))--
to "section 11, 12 or 17 of the Fair Trading
Act 1985", is, to the extent that it relates to
any period on or after the commencement of
section 22 of the Fair Trading (Inspectors
69
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 23
Act No.
Powers and Other Amendments) Act
1999, deemed to include a reference to
"section 9, 11 or 12 of the Fair Trading Act
1999".'.
5 23. Business Licensing Authority Act 1998
No. 49/1998. In section 3 of the Business Licensing Authority
Act 1998, for the definition of "Director"
substitute--
' "Director" means the Director within the
10 meaning of the Fair Trading Act 1999;'.
24. Business Names Act 1962
No. (1) In section 4(1) of the Business Names Act
6853/1962.
1962--
Reprint No. 5
as at 11
(a) the definition of "Commissioner" is
March 1999.
15 repealed;
(b) insert the following definition--
' "Director" means the Director within the
meaning of the Fair Trading Act
1999;'.
20 (2) In sections 4A, 6(1), 7(1), 7(3), 7(4), 7(5), 7(6),
9(1), 10, 10A, 11, 12, 13, 15(2), 15AA, 15A, 15B,
15C, 16, 17, 18, 19, 21, 22(1), 22(3), 23, 24(b),
25, 28A, 31(1) and 32 of the Business Names Act
1962, for "Commissioner" (wherever occurring)
25 substitute "Director".
(3) In section 7 of the Business Names Act 1962 for
sub-section (4A) substitute--
"(4A) A certificate of registration must indicate
that it is produced by authority of the
30 Director, whether by being initialled or
signed by the Director, or by bearing a
facsimile of the initials or signature of the
70
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 25
Act No.
Director, or in any other manner the Director
thinks fit.".
(4) In section 22 of the Business Names Act 1962 for
sub-section (4) substitute--
5 "(4) A copy of or extract from any document
filed or lodged at the Office of Fair Trading
and Business Affairs certified to be a true
copy or extract under the hand of the
Director shall in any proceedings be
10 admissible in evidence as of equal validity
with the original document.".
25. Business Names Act 1962--New section 4B inserted
After section 4A of the Business Names Act 1962
insert--
15 "4B. Delegation by Director
The Director, by instrument, may delegate to
any person or class of persons employed
under Part 3 of the Public Sector
Management and Employment Act 1998
20 in the administration of this Act, any of the
Director's functions or powers under this
Act, other than this power of delegation.".
26. Business Names Act 1962--New section 33 inserted
After section 32 of the Business Names Act 1962
25 insert--
"33. Transitional
(1) Any act matter or thing of a continuing
nature commenced under this Act or the
regulations by or against or in relation to the
30 Commissioner for Corporate Affairs and
existing immediately before the
commencement of section 26 of the Fair
Trading (Inspectors Powers and Other
Amendments) Act 1999 may be continued
71
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 27
Act No.
and completed on and after that
commencement by or against or in relation
to the Director.
(2) If, immediately before the commencement of
5 section 26 of the Fair Trading (Inspectors
Powers and Other Amendments) Act
1999, proceedings to which the
Commissioner for Corporate Affairs was a
party were pending or existing in any court
10 or tribunal, then, on and after that
commencement, the Director is substituted
for the Commissioner for Corporate Affairs
as a party to the proceedings and has the
same rights and obligations in the
15 proceedings as the Commissioner for
Corporate Affairs had.".
27. Consumer Credit (Victoria) Act 1995
No. 41/1995. In section 3(1) of the Consumer Credit
Reprint No. 1
(Victoria) Act 1995 for the definition of
as at 1 July
20 "Director" substitute--
1998.
' "Director" means the Director within the
meaning of the Fair Trading Act 1999;'.
28. Credit Act 1984
No. 10097/84. (1) In section 5(1) of the Credit Act 1984--
Reprint No. 3
25 (a) for the definition of "Director" substitute--
as at 1 July
1998.
' "Director" means the Director within the
meaning of the Fair Trading Act
1999;';
(b) insert the following definition--
30 ' "inspector" means an inspector appointed
under the Fair Trading Act 1999;'.
72
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 29
Act No.
(2) In section 6(1)(a) of the Credit Act 1984 omit
"not including the Market Court".
(3) In section 121(7)(a) of the Credit Act 1984 omit
"appointed under the Consumer Affairs Act
5 1972".
29. Disposal of Uncollected Goods Act 1961
No.
After section 13 of the Disposal of Uncollected 6815/1961.
Goods Act 1961 insert-- Reprint No. 3
as at
"14. Application of provisions of Fair Trading 20 February
10 Act 1999 1997.
Part 10 of the Fair Trading Act 1999
(except section 121) extends and applies
(with any necessary modifications) to this
Act as if any reference in that Part to the
15 Fair Trading Act 1999 were a reference to
this Act.".
30. Domestic Building Contracts Act 1995
No. 91/1995.
(1) In section 3(1) of the Domestic Building
Reprint No. 3
Contracts Act 1995 for the definition of as at 1 July
20 "Director" substitute-- 1998.
' "Director" means the Director within the
meaning of the Fair Trading Act 1999;'.
(2) In the Domestic Building Contracts Act 1995--
(a) in section 125(1), for "under the Consumer
25 Affairs Act 1972" substitute "appointed
under the Fair Trading Act 1999";
(b) Part 9 is repealed.
31. Domestic Building Contracts Act 1995--New section
124A inserted
30 After section 124 of the Domestic Building
Contracts Act 1995 insert--
73
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 32
Act No.
"124A. Application of provisions of Fair Trading
Act 1999
Part 10 of the Fair Trading Act 1999
(except sections 120 and 121) extends and
5 applies (with any necessary modifications) to
this Act as if any reference in that Part to the
Fair Trading Act 1999 were a reference to
this Act.".
32. Estate Agents Act 1980
No.
10 In section 4 of the Estate Agents Act 1980 for the
9428/1980.
definition of "Director" substitute--
Reprint No. 6
as at 1 July
' "Director" means the Director within the
1998.
meaning of the Fair Trading Act 1999;'.
33. Fundraising Appeals Act 1998
No. 78/1998.
15 (1) In section 3 of the Fundraising Appeals Act
1998 for the definition of "inspector" substitute--
' "inspector" means an inspector appointed under
the Fair Trading Act 1999;'.
(2) Section 45 of the Fundraising Appeals Act 1998
20 is repealed.
34. Fundraising Appeals Act 1998--New section 72A
inserted
After section 72 of the Fundraising Appeals Act
1998 insert--
25 '72A. Transitional provision relating to inspectors
(1) An inspector appointed under the Fair
Trading Act 1999 may continue and
complete any proceedings under this Act
commenced or made by or against or in
30 relation to a former inspector and existing
immediately before the commencement day.
74
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 35
Act No.
(2) In this section--
"commencement day" means the day of
commencement of section 34 of the
Fair Trading (Inspectors Powers and
5 Other Amendments) Act 1999;
"former inspector" means a person
authorised under section 45 of this Act
as in force before the commencement
day.'.
10 35. Funerals (Pre-Paid Money) Act 1993
No. 33/1993.
(1) In section 3(1) of the Funerals (Pre-Paid
Money) Act 1993 insert--
' "Director" means the Director within the
meaning of the Fair Trading Act 1999;'.
15 (2) In section 18 of the Funerals (Pre-Paid Money)
Act 1993, sub-sections (4) and (5) are repealed.
(3) Part 5 of the Funerals (Pre-Paid Money) Act
1993 is repealed.
36. Funerals (Pre-Paid Money) Act 1993--New section
20 17A inserted
After section 17 of the Funerals (Pre-Paid
Money) Act 1993 insert--
"17A. Application of provisions of Fair Trading
Act 1999
25 Part 10 of the Fair Trading Act 1999
(except section 121) extends and applies
(with any necessary modifications) to this
Act as if any reference in that Part to the
Fair Trading Act 1999 were a reference to
30 this Act.".
75
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 37
Act No.
37. Introduction Agents Act 1997
No. 75/1997. (1) In section 3 of the Introduction Agents Act 1997
Reprint No. 1
for the definitions of "Director" and "inspector"
as at 1 July
substitute--
1998.
5 ' "Director" means the Director within the
meaning of the Fair Trading Act 1999;
"inspector" means an inspector appointed under
the Fair Trading Act 1999;'.
(2) Division 3 of Part 6 of the Introduction Agents
10 Act 1997 is repealed.
(3) In section 64 of the Introduction Agents Act
1997 for "section 63" substitute "section 146 of
the Fair Trading Act 1999".
38. Pay-roll Tax Act 1971
No.
15 In section 3C(6) of the Pay-roll Tax Act 1971 for
8154/1971.
paragraph (g) substitute--
Reprint No. 6
as at
"(g) a reference to a door to door sale is a
22 August
reference to the entering into of an
1997.
agreement or the making of an offer to which
20 Division 3 of Part II of the Consumer
Affairs Act 1972 would have applied if the
agreement had been entered into or the offer
made immediately before the repeal of the
Consumer Affairs Act 1972.".
25 39. Petroleum Retail Selling Sites Act 1981
No. In section 4(9) of the Petroleum Retail Selling
9704/1981.
Sites Act 1981 for "Director of Consumer
Affairs" substitute "Director of Fair Trading
within the meaning of the Fair Trading Act
30 1999".
76
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 40
Act No.
40. Prostitution Control Act 1994
No. 102/1994.
In section 3 of the Prostitution Control Act 1994
Reprint No. 3
for the definition of "Director of Fair Trading" as at 1 July
substitute-- 1998.
5 ' "Director of Fair Trading" means the Director
within the meaning of the Fair Trading Act
1999;'.
41. Residential Tenancies Act 1997
No. 109/1997.
(1) In section 3(1) of the Residential Tenancies Act
Reprint No. 1
10 1997 for the definition of "Director" substitute-- as at 1 July
1998.
' "Director" means the Director within the
meaning of the Fair Trading Act 1999;'.
(2) For the heading to Division 1 of Part 12 of the
Residential Tenancies Act 1997 substitute--
15 "Division 1--Director of Fair Trading"
(3) In Schedule 2 to the Residential Tenancies Act
1997, item 9 is repealed.
42. Residential Tenancies Act 1997--New section 507A
inserted
20 After section 507 of the Residential Tenancies
Act 1997 insert--
"507A. Application of provisions of Fair Trading
Act 1999
Part 10 of the Fair Trading Act 1999
25 (except section 121) extends and applies
(with any necessary modifications) to this
Act (except Part 14) as if--
(a) any reference in that Part 10 to the Fair
Trading Act 1999 were a reference to
30 this Act; and
77
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 43
Act No.
(b) to the extent that section 134 of the
Fair Trading Act 1999 relates to the
giving of information or the production
of a document under section 118 of that
5 Act, the penalty for an offence against
that section 134 did not exceed
10 penalty units.".
43. Retirement Villages Act 1986
No. 126/1986. (1) In section 3(1) of the Retirement Villages Act
Reprint No. 3
10 1986--
as at
4 February
(a) the definition of "Commissioner for
1999.
Corporate Affairs" is repealed;
(b) insert the following definition--
' "Director" means the Director within the
15 meaning of the Fair Trading Act
1999;'.
(2) In section 6 of the Retirement Villages Act
1986--
(a) for "Commissioner for Corporate Affairs"
20 (wherever occurring) substitute "Director";
(b) in sub-section (5)(a), for "Commissioner"
substitute "Director".
(3) In section 18 of the Retirement Villages Act
1986--
25 (a) in sub-sections (1) and (3), for "Fair
Trading 1985" substitute "Fair Trading
Act 1999";
(b) sub-section (2) is repealed.
(4) In sections 31(3), 32(2), (4), (5) (6) and (7), 39(2),
30 (4), (5), (6) and (7) and 40 of the Retirement
Villages Act 1986, for "Commissioner for
Corporate Affairs" (wherever occurring)
substitute "Director".
78
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 44
45
Act No.
(5) In sections 32(3)(b)(ii) and 39(3)(b)(ii) of the
Retirement Villages Act 1986, for "the
Commissioner" substitute "the Director".
44. Retirement Villages Act 1986--New section 44
5 inserted
After section 43 of the Retirement Villages Act
1986 insert--
"44. Transitional
(1) Any act matter or thing of a continuing
10 nature commenced under this Act or the
regulations by or against or in relation to the
Commissioner for Corporate Affairs and
existing immediately before the
commencement of section 44 of the Fair
15 Trading (Inspectors Powers and Other
Amendments) Act 1999 may be continued
and completed on and after that
commencement by or against or in relation
to the Director.
20 (2) If, immediately before the commencement of
section 44 of the Fair Trading (Inspectors
Powers and Other Amendments) Act
1999, proceedings to which the
Commissioner for Corporate Affairs was a
25 party were pending or existing in any court
or tribunal, then, on and after that
commencement, the Director is substituted
for the Commissioner for Corporate Affairs
as a party to the proceedings and has the
30 same rights and obligations in the
proceedings as the Commissioner for
Corporate Affairs had.".
45. Sale of Land Act 1962
79
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No.
In section 3 of the Sale of Land Act 1962--
No.
6975/1962.
(a) in sub-section (1)(a) for "is not under the
Reprint No. 10
operation of the Transfer of Land Act
as at 22 May
1997.
1958" substitute "is in an identified folio
5 under the Transfer of Land Act 1958 or is
not under the operation of that Act";
(b) in sub-section (1)(b) after "Transfer of
Land Act 1958" insert "(other than land in
an identified folio under that Act)".
10 46. Second-Hand Dealers and Pawnbrokers Act 1989
No. 54/1989. In section 3(1) of the Second-Hand Dealers and
Reprint No. 3
Pawnbrokers Act 1989 for the definition of
as at 1 July
"Director" substitute--
1998.
' "Director" means the Director within the
15 meaning of the Fair Trading Act 1999;'.
47. Small Claims Act 1973
No. In section 20A of the Small Claims Act 1973 for
8486/1973.
"consumer" (wherever occurring) substitute
Reprint No. 5
"customer".
as at 1 July
1998.
20 48. Trade Measurement Act 1995
No. 59/1995. For section 81 of the Trade Measurement Act
1995 substitute--
"81. Special provisions--application of Act in
the State
25 Nothing in this Act affects the operation of
the Fair Trading Act 1999.".
49. Victorian Civil and Administrative Tribunal Act 1998
No. 53/1998. (1) In section 3 of the Victorian Civil and
Administrative Tribunal Act 1998, for the
30 definition of "Director" substitute--
' "Director" means the Director within the
meaning of the Fair Trading Act 1999;';
80
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 49
Act No.
(2) In section 73(2) of the Victorian Civil and
Administrative Tribunal Act 1998 for "Fair
Trading Act 1985" substitute "Fair Trading
Act 1999".
5
81
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Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
82
532169B.A1-5/5/99
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No.
83
532169B.A1-5/5/99
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