CONSUMER AFFAIRS LEGISLATION AMENDMENT (REFORM) BILL 2010 Explanatory Memoranda
CONSUMER AFFAIRS LEGISLATION AMENDMENT (REFORM) BILL 2010
Consumer Affairs Legislation
Amendment (Reform) Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill implements the second tranche of reforms arising from the
Consumer Affairs Legislation Modernisation project. The purposes of the
Bill are to consolidate, modernise or repeal many of Victoria's Consumer
Acts.
The Bill will introduce into the Fair Trading Act 1999 a new framework to
provide for the disposal of uncollected goods. The Bill will also repeal the
Disposal of Uncollected Goods Act 1961.
The Introduction Agents Act 1997 will be repealed by the Bill and many of
the protections contained in that Act will be inserted into the Fair Trading
Act 1999.
The Bill repeals the balance of the Carriers and Innkeepers Act 1958,
which was partially repealed by the Consumer Affairs Legislation
Amendment Act 2010, and inserts modernised provisions, allowing
accommodation providers to limit their common law liability, into the Fair
Trading Act 1999.
The Bill re-enacts the Sale of Goods (Vienna Convention) Act 1987 and the
Sea-Carriage Documents Act 1998 in the Goods Act 1958, and repeals an
obsolete offence in the Goods Act 1958.
The Bill amends the Consumer Affairs Legislation Amendment Act 2010
to prohibit certain debt collection practices and make available compensation
to consumers who have experienced humiliation or distress as a result of
those practices. The Bill also makes various statute law revision amendments
to that Act.
The Bill amends the Estate Agents Act 1980 to remove redundant
provisions, simplify compliance requirements and strengthen penalties for
breaches of audit requirements.
The Bill amends the Conveyancers Act 2006 to simplify compliance
requirements and strengthen penalties for breaches of audit requirements.
561457 1 BILL LA INTRODUCTION 28/7/2010
The Bill changes requirements for off-the-plan sales by amending the Sale of
Land Act 1962 to increase the cap on deposits for off-the-plan sales, enhance
disclosure requirements and strengthen safeguards for the handling of
deposits. The Bill also improves access to legal advice during the cooling off
period for sales of land.
The Bill amends the Funerals Act 2006, the Owners Corporations Act
2006, the Travel Agents Act 1986, the Residential Tenancies Act 1997, the
Retirement Villages Act 1986 and the Sale of Land Act 1962 to standardise
powers for the issuing of infringement notices.
The Bill amends the Fair Trading Act 1999 to impose restrictions on costs
orders where proceedings are transferred to the Victorian Civil and
Administrative Tribunal (VCAT), and ensures that civil remedies can be
ordered against directors of corporations who are knowingly involved in the
corporation's contraventions.
The Bill amends the Business Licensing Authority Act 1998 in relation to
the constitution of the Authority.
The Bill repeals the balance of the Landlord and Tenant Act 1958 and
inserts a savings provision for prescribed premises under that Act into the
Residential Tenancies Act 1997 to ensure protected tenants can maintain
their tenancies.
The Bill modernises definitions in the Motor Car Traders Act 1986 and
allows certain people to apply for permission to act as a licensee.
The Bill amends the Travel Agents Act 1986 by clarifying supervision
requirements for travel agents.
The Victorian Civil and Administrative Tribunal Act 1998 is amended to
give VCAT greater capacity to award costs in disputes about arrears of
owners corporation fees.
The Bill also includes statute law and consequential amendments relating to
the change of the short title of the Prostitution Control Act 1994 by section
42 of the Consumer Affairs Legislation Amendment Act 2010.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 sets out the various commencement dates for clauses in the Bill.
Parts 1 and 4 come into operation on the day after the day on
which it receives the Royal Assent.
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Clause 81 and the Schedule, which amend the short title of the
Prostitution Control Act 1994, will come into operation on the
same day as section 42 of the Consumer Affairs Legislation
Amendment Act 2010.
The remaining clauses come into operation on 1 September 2011,
unless proclaimed earlier. This date will align the Bill with the
default commencement date of the Consumer Affairs
Legislation Amendment Act 2010, as amended by clause 22.
PART 2--AMENDMENTS RELATING TO UNCOLLECTED
GOODS, INTRODUCTION AGENTS AND
ACCOMMODATION PROVIDERS
Clause 3 inserts a new Part 2D ("Disposal of Uncollected Goods") into the
Fair Trading Act 1999, providing a new framework for the
disposal of uncollected goods under bailment. The new Part
applies to all uncollected goods under bailment that are
uncollected, rather than just uncollected goods left for repair or
treatment. It allows the disposal of uncollected goods (as defined
by the Part) to occur without the need for a court order in keeping
with the existing procedures under the Disposal of Uncollected
Goods Act 1961. The Part also replaces Part IVA of the
Landlord and Tenant Act 1958, which deals with the disposal
of uncollected goods left behind by tenants at the end of
tenancies not covered by the Residential Tenancies Act 1997.
Proposed section 32ZP defines key terms (including bailment,
provider, publicly registered interest and receiver) for the
purposes of the proposed Part, and sets out the value ranges
that are to apply to low, medium and high value goods.
The application of the definition of publicly registered interest is
limited to goods described by serial number (within the meaning
of the Personal Property Securities Act 2009 of the
Commonwealth) because it is anticipated that the name and date
of birth of the grantor of a security interest will be required to
access the register established under the Commonwealth Act for
goods not described by serial number. It is unlikely the receiver
will have this information. It is not intended that this would limit
the operation of proposed section 32ZY(1)(a)(iv).
Proposed section 32ZQ defines uncollected goods for the
purposes of the Part.
Proposed section 32ZR defines relevant charge for the purposes
of the Part.
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Proposed section 32ZS provides for the application of the Part.
Subsection (1) applies the part to all goods under bailment.
Subsection (2) excludes the operation of the Part from several
other Acts that specify procedures for the disposal of uncollected
goods. Subsection (3) provides that, subject to the exclusions in
subsection (2), the Part applies in addition to any other remedy or
right a person may have to dispose of uncollected goods.
Subsection (4) provides that the Part applies only to the extent no
agreement exists between the parties concerning the disposal of
uncollected goods. Subsection (5) provides that the Part does not
apply to a lease or other agreement to which Part IVA applied
immediately before its repeal. Many commercial leases specify
Part IVA of the Landlord and Tenant Act 1958 as the means to
dispose of goods left behind by tenants. Proposed clause 23 of
Schedule 3 to the Fair Trading Act 1999 in clause 72 provides
that Part IVA will continue to apply to existing leases.
Subsection (6) clarifies that the Part does not affect the right of a
provider and a receiver to make an agreement concerning the
disposal of uncollected goods.
Proposed section 32ZT preserves the operation of the common
law in relation to the bailment of goods except to the extent that
the proposed Part otherwise provides.
Proposed section 32ZU provides that a receiver may dispose
of uncollected goods.
Proposed section 32ZV provides that any person with an interest
in the goods may take delivery of the goods on payment of the
relevant charge at any time before they are disposed of.
Proposed section 32ZW provides for the disposal of low value
uncollected goods. Subsection (1) enables a receiver to dispose
of uncollected low value goods (up to $200 in value) after the
provider has been notified in writing of the receiver's intention to
dispose of the goods and has been given at least 28 days to
collect them. Subsection (2) provides that where a receiver
cannot locate or communicate with the provider of the goods
after reasonable attempts to do so, he or she may dispose of the
goods 60 days after they become uncollected goods. Subsection
(3) provides that a receiver may dispose of the goods by any
means.
Proposed section 32ZX provides for the disposal of medium
value uncollected goods. Subsection (1) enables a receiver to
dispose of uncollected medium value goods of between $200 and
$5000 (excluding motor vehicles) in value after the provider and
the owner of the goods (if the receiver knows that the provider
and the receiver are different people) have been notified in
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writing of the receiver's intention to dispose of the goods and
have been given at least 28 days to collect them. Subsection (2)
provides that where a receiver cannot locate or communicate with
the provider or the owner of the goods after reasonable attempts
to do so, he or she may dispose of the goods 90 days after they
become uncollected goods. Subsection (3) provides that a
receiver must dispose of the goods by public auction or private
sale, and must take reasonable care to obtain the best price that
can reasonably be obtained.
Proposed section 32ZY provides for the disposal of high value
uncollected goods. Subsection (1) enables a receiver to dispose
of uncollected high value goods of over $5000 in value (or $200
in the case of a motor vehicle as per the definition of high value
goods) after the provider, the owner (if the receiver knows that
the provider and the owner are different people), any person with
a publicly registered interest in the goods and any other person
the receiver knows claims an interest in the goods have been
notified in writing of the receiver's intention to dispose of the
goods and have been given at least 28 days in which to collect
them. Subsection (2) provides that where a receiver cannot
locate or communicate with the provider or the owner of the
goods after reasonable attempts to do so, he or she may dispose
of the goods 180 days after they become uncollected goods.
Subsection (3) provides that a receiver must dispose of the goods
by a public auction that is publicly advertised at least seven days
in advance or held over a period of at least seven days (for
example, an online auction can last over seven days).
Proposed section 32ZZ prohibits the sale of a motor vehicle of
high value under the Part unless the seller obtains a written
search result from the Personal Property Securities Register
under section 170(2)(b) of the Personal Property Securities Act
2009 of the Commonwealth. It is expected that such search
results will include details of any person who has a publicly
registered interest in the motor vehicle, as well as information on
whether a vehicle is stolen.
Proposed section 32ZZA permits VicRoads to release details of
the registered operator of a motor vehicle to a receiver who
provides the required information to enable the receiver to
contact the registered operator for the purposes of sections 32ZX
and 32ZY.
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Proposed section 32ZZB enables a receiver to dispose of
uncollected perishable goods. Subsection (1) allows the disposal
to be by sale, appropriation or destruction after the provider has
been notified, orally or in writing, of the receiver's intention to
dispose of the goods and has been given a reasonable opportunity
to collect the goods. Subsection (2) permits a receiver to dispose
of perished goods but requires the receiver to make reasonable
attempts to provide oral or written notice of the disposal to a
provider.
Proposed section 32ZZC specifies the matters that must be
included in a notice of intention to dispose of uncollected goods.
Proposed section 32ZZD provides that a notice under the
proposed Part may be served personally or by post. A notice to a
person with a publicly registered interest can be sent to the
person's registered address.
Proposed section 32ZZE enables a receiver to apply to a court for
an order authorising the disposal of uncollected goods, specifies
what must be included in an application, and to whom the
application must be sent.
Proposed section 32ZZF enables a provider or a receiver to apply
to a court for an order determining the amount of the relevant
charge payable to the receiver.
Proposed section 32ZZG relates to orders a court can make.
Subsection (1) empowers a court to make an order authorising
the disposal of the uncollected goods, determining the amount of
the relevant charge and any other orders to give effect to such
orders. Subsection (2) provides that an order for the disposal of
specified goods under bailment must specify the means of
disposal of the goods, the date by which the goods must be
disposed of and the relevant charge due to the receiver in respect
of the goods.
Proposed section 32ZZH provides that, if a court has made an
order for the disposal of goods, any person with an interest in the
goods may take delivery of the goods on payment of the relevant
charge at any time before they are disposed of.
Proposed section 32ZZI suspends the operation of an order under
the Part in circumstances where other legal proceedings are
commenced for the recovery of the goods to which the order
relates. If any such proceedings are successful, the order ceases
to have effect.
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Proposed section 32ZZJ specifies how the proceeds of sale are to
be dealt with. Subsection (1) entitles a receiver to retain from the
proceeds of sale of goods under the proposed Part the relevant
charge due to the receiver in respect of the goods. Subsection (2)
provides that the remainder of the proceeds are to be dealt with as
if the receiver was a business and the proceeds were unclaimed
money under the Unclaimed Money Act 2008. Subsection (3)
preserves the right of the receiver to recover the amount of any
deficiency from the provider as a debt.
Proposed section 32ZZK specifies record-keeping requirements.
Subsection (1) requires a receiver to prepare a record containing
specified information in relation to goods disposed of under the
Part. Subsection (2) requires a receiver to keep the record for at
least 6 years, and further provides that the receiver must make the
record available, on request, for inspection by the provider, the
owner or by any other person claiming an interest in the goods.
Proposed section 32ZZL provides that the purchaser of any goods
sold under the Part acquires good title to the goods, free of any
other interest, if the goods are bought without notice of any
failure by the receiver to comply with the provisions of the
proposed Part or of any defect or want of title in the provider.
Subsection (2) provides that a receiver who disposes of the goods
by appropriation receives good title to those goods.
Proposed section 32ZZM relates to the issue of receipts for the
sale of motor vehicles to ensure that a purchaser of a motor
vehicle can demonstrate how their possession of the vehicle came
about. Subsection (1) requires a seller of a motor vehicle to issue
a receipt. Subsection (2) specifies the information that must be
included in the receipt.
Proposed section 32ZZN provides for the relationship between
the Part, and Part 9, section 121, and Division 2 of Part 11 of the
Fair Trading Act 1999. Subsection (1) confers jurisdiction on
the VCAT to hear disputes under the Part as consumer and trader
disputes within the meaning of Part 9. Subsection (2) disapplies
section 121, which allows for emergency entry by inspectors
appointed under the Fair Trading Act 1999 in the event that
goods may be unsafe or subject to a ban order. Section 121 is
currently disapplied by section 14 of the Disposal of Uncollected
Goods Act 1961. Subsection (3) excludes Division 2 of Part 11
to ensure that remedies that are not currently applied to the
disposal of uncollected goods are not applied in future.
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Clause 4 inserts new clause 21 into Schedule 3 to the Fair Trading Act
1999. This provision provides for transitional matters related to
the introduction of the new uncollected goods provisions.
Proposed subclause (1) inserts definitions relating to the
transition to the new provisions. Former Act is defined as the
Disposal of Uncollected Goods Act 1961. Proposed subclause
(2) states that the Division applies despite section 32ZS(1)
(which states that Part 2D applies to all bailments regardless of
when they occurred) and the repeal of the former Act.
Proposed subclause (3) provides that the former Act continues to
apply to any person who has given a notice of an intention to sell
goods under section 3. Proposed subclause (4) provides that with
respect to any goods to which sections 3A (goods valued at under
$20) or 3B (goods where the name and address of the bailor are
not known) of the former Act apply, the receiver of the goods
may elect to dispose of the goods under Part IVB.
Proposed subclause (5) requires any person who disposed of
goods under the former Act to keep their records for the period
specified in that Act. Proposed subclause (6) keeps any action to
re-open a transaction under section 13 of the former Act on foot.
Clause 5 repeals the Disposal of Uncollected Goods Act 1961.
Clause 6 inserts proposed section 92(3)(gb) into the Road Safety Act
1986, which has the effect of permitting VicRoads to disclose
personal or commercially sensitive information, such as the
details of the registered operator, for the purposes of Part 2D.
This is intended to enable receivers to contact the registered
operators of vehicles to inform them that their vehicles are
uncollected goods.
Clause 7 inserts a new Part 5AA into the Fair Trading Act 1999 to
regulate introduction agents.
Proposed section 93AA contains definitions derived from the
Introduction Agents Act 1997.
Proposed section 93AB defines introduction agent.
This definition is derived from section 4 of the Introduction
Agents Act 1997.
Proposed section 93AC defines introduction service.
This definition is derived from section 5 of the Introduction
Agents Act 1997.
Proposed section 93AD defines who carries on a business for the
purpose of the Part. This section is derived from section 6 of the
Introduction Agents Act 1997.
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Proposed section 93AE provides that an introduction agency is
not to be operated out of premises used to provide sex work
services. This is to ensure that introduction agency and sex work
businesses are operated separately. This is currently an offence
under section 20 of the Introduction Agents Act 1997.
The penalty has been adjusted from 200 penalty units to
240 penalty units to more closely reflect penalty levels under the
Sentencing Act 1991.
Proposed section 93AF provides that the Part does not apply to
any person who is deemed not to act as an introduction agent in
carrying out an activity specified in sections 93AG to 93AL.
This section is derived from section 7 of the Introduction
Agents Act 1997.
Proposed section 93AG provides an exemption for activities with
a community purpose. This section is derived from section 8 of
the Introduction Agents Act 1997.
Proposed section 93AH provides an exemption for non-profit
activities. This section is derived from section 9 of the
Introduction Agents Act 1997.
Proposed section 93AI provides an exemption for publishers of
advertisements. This section is derived from section 10 of the
Introduction Agents Act 1997.
Proposed section 93AJ provides an exemption for information
service providers. This section is derived from section 11 of the
Introduction Agents Act 1997.
Proposed section 93AK provides an exemption for organisers of
dances and similar social activities. This section is derived from
section 12 of the Introduction Agents Act 1997.
Proposed section 93AL ensures that a sex work service provider
is not treated as an introduction agent merely by providing sex
work services and people who provide a means for a person to
offer introduction services such as newspaper publishers are not
treated as introduction agents. This section is derived from
section 13 of the Introduction Agents Act 1997.
Proposed section 93AM specifies who is not allowed to operate
as an introduction agent. This section is derived from section 14
of the Introduction Agents Act 1997, adding the prohibition on
persons who have been found to have contravened Part 2 of the
Fair Trading Act 1999. A natural person faces penalties of
120 penalty units or 12 months imprisonment if they contravene
the section, compared to 500 penalty units or 12 months
imprisonment if they contravened the equivalent provision in the
Introduction Agents Act 1997. The change in penalties is to
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allow the introduction of differential penalties for individuals and
corporations. With respect to contraventions by corporations,
penalties of 600 penalty units apply compared to 500 penalty
units under the Introduction Agents Act 1997. The increase in
the penalty is to tie in with Sentencing Act 1991 levels.
Proposed section 93AN allows a person disqualified under
section 93AM (except for a minor, a represented person, or a
licensee or manager of a sex work service provider) to apply to
the Business Licensing Authority for permission to act as an
introduction agent.
Proposed section 93AO allows the Business Licensing Authority
to give its permission for a disqualified person to act as an
introduction agent if it is satisfied it is not contrary to the public
interest to do so. Proposed subsection (4) allows the Business
Licensing Authority to revoke a permission of a person to whom
it was previously granted if it is in the public interest to do so.
A person affected by a decision under this subsection would be
able to apply to VCAT under proposed section 93AQ.
Proposed subsection (5) requires that a revocation of a
permission must not occur unless the Business Licensing
Authority gives an affected person an opportunity to be heard.
Proposed section 93AP allows the Business Licensing Authority
to impose conditions on any permission granted. Failure to
comply with any conditions imposed can lead to penalties of up
to 600 penalty units for corporations, or 120 penalty units or
12 months imprisonment in any other case.
Proposed section 93AQ allows a person whose interests have
been affected by a decision under proposed sections 93AO or
93AP to apply to VCAT for a review of the decision.
Proposed section 93AR requires an introduction agreement to
contain certain information, including a statement regarding the
withdrawal period contained in proposed Schedule 1A (see
clause 8 below). A maximum 240 penalty unit penalty applies if
the agreement does not contain that information. An introduction
agent who fails to comply with the terms of an introduction
agreement may contravene Part 2 of the Fair Trading Act 1999
(for example, by accepting payment without being able to supply
as ordered), rendering that agent a disqualified person.
This section is derived from section 25 of the Introduction
Agents Act 1997, which applied a 300 penalty unit penalty.
The penalty in the section has been adjusted to tie in with levels
in the Sentencing Act 1991.
10
Proposed section 93AS limits the amount of money an
introduction agent can demand prior to the provision of an
introduction service to no more than 30 per cent of the price of
that service. Subsection (2) limits the application of the section
where the amount to be paid under the agreement is less
than $1000. The limit applies where less than $1000 has been
paid in the last month and less than $5000 has been paid in the
last 12 months. This section is derived from section 27 of the
Introduction Agents Act 1997, but with limits increased to
reflect inflation and address difficulties that introduction agents
faced receiving the balance of any payment due.
Proposed section 93AT gives any person who has entered into an
introduction agreement a right to withdraw from an agreement
within 3 clear business days of entering into it. To effect a
withdrawal, a person must give written notice. An introduction
agent is entitled to retain the lesser of $50 or 10 per cent of the
agreement's total amount, but must refund the balance of any
money paid within 7 days. A maximum 240 penalty unit penalty
will apply for a contravention, rather than 300 penalty units under
the Introduction Agents Act 1997. The penalty in the section
has been adjusted to tie in with levels in the Sentencing Act
1991. This section is derived from section 31 of the
Introduction Agents Act 1997.
Clause 8 inserts Schedule 1A to the Fair Trading Act 1999, which sets
out the form of the notice required to be given under proposed
section 93AR. This Schedule is derived from the Schedule to the
Introduction Agents Act 1997.
Clause 9 makes consequential amendments to the Fair Trading Act 1999,
reflecting the repeal of the Introduction Agents Act 1997 and
the insertion of Part 5AA.
Clause 10 repeals the Introduction Agents Act 1997.
Clause 11 makes consequential amendments to sections 3, 6(a)(iii),
20 and 22(8) of the Business Licensing Authority Act 1998,
reflecting the repeal of the Introduction Agents Act 1997, the
insertion of Part 5AA, and the insertion of a power to revoke
permissions in proposed section 93AO in clause 7.
Clause 12 inserts new Part 5C into the Fair Trading Act 1999, setting out
new provisions to limit the common law strict liability of
accommodation providers. The new Part adopts some of the
recommendations contained in a 1998 review of the Carriers
and Innkeepers Act 1958 conducted by the Scrutiny of Acts and
Regulations Committee of Parliament. It is modelled in part on
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Queensland's Traveller Accommodation Providers (Liability) Act
2001.
At common law, innkeepers have long been subject to special
rules that govern their rights and obligations. Among the duties
imposed on innkeepers are: a duty to receive and entertain guests,
a duty to take reasonable care for guest's safety, a duty to receive
and look after guest's means of transport and a duty to safeguard
a guest's property. In addition, an innkeeper can set rules of the
house and take a lien over property.
Proposed section 93O provides definitions for the Part. Some of
the key definitions are outlined below.
Accommodation is defined as meaning a room or other area at an
accommodation place that contains sleeping facilities.
An accommodation place is any place that provides
accommodation for use by members of the travelling public
as part of a commercial transaction. It does not include
accommodation in or on something that is being used or is
ordinarily used as a means of transportation (for example, a
sleeping car on a train).
An accommodation provider is the person who operates a
business that includes providing traveller accommodation. It is
intended that the person who has day-to-day control of the
business is taken to be the accommodation provider. This may
not always be the owner of the premises. This recognises
commercial practice in that many owners of premises engage
others to operate businesses upon those premises.
A guest is someone to whom accommodation is provided.
It does not include a person who usually lives at the
accommodation, because strict liability is not imposed on
accommodation providers with respect to lodgers. Similarly, the
definition does not include someone who is visiting the
accommodation place to purchase beverages or food, or visiting
another person. Such people have been held to be "travellers" at
common law in the past. However, this has resulted in an
excessively broad availability of strict liability.
For the purposes of the Part, innkeeper's liability is the strict
liability imposed, at common law, on an innkeeper for failing
to safeguard property of a guest that is brought to the inn.
For the purposes of the Part, an innkeeper's lien is the common
law right allowing an innkeeper to take possession of property
brought to the inn by the guest and to keep it until payment is
made for accommodation, beverages, food and other services
provided to the guest.
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Loss includes damage or destruction, to remedy ambiguity that
exists over this matter at common law.
Property of a guest is the property brought to the traveller
accommodation or its precinct by or for the guest. This section
recognises that on occasion guest's property is brought to the
accommodation by a third party, for example, a tour organiser.
Property does not include a motor vehicle or property left in or
on a motor vehicle, and property taken by the guest from the
accommodation or its precincts by or for the guest.
A safekeeping service means a service where property of guests
is deposited with the accommodation provider for safekeeping,
but does not include a safe facility located in a unit of
accommodation.
Proposed section 93P clarifies the common law by specifying
that only an accommodation provider is an innkeeper and that
only an accommodation place is an inn.
Proposed section 93Q details the liability of accommodation
providers under this Part. Subsection (1) provides that an
accommodation provider is liable to make good the loss of
property of a guest in the accommodation place during the period
of accommodation. Subsection (2) specifies that an
accommodation provider is not liable for the intentional or
negligent act of a guest. This restriction is not intended to affect
any rights the guest may have under the Fair Trading Act 1999.
Proposed section 93R imposes a limitation on the strict liability
that an accommodation provider has under the common law
doctrine of innkeeper's liability for the loss of the guest's
property. The liability for the loss is limited to $300 for the
unit of accommodation if the notice required by proposed
section 93T is posted to ensure guests are aware of the limit
on liability. Subsection (2) sets out the circumstances where the
$300 limitation does not apply. These include circumstances
where the loss of the property occurred after the accommodation
provider or the provider's agent accepts the property for
depositing in the safekeeping service or the loss is caused by the
fault of the accommodation provider or the provider's agent.
In these circumstances the limitation does not apply and the
accommodation provider is liable in accordance with the rules at
common law.
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Proposed section 93S provides for safekeeping requirements.
Subsection (1) requires that an accommodation provider must
accept a guest's property for safekeeping unless the
accommodation provider has a reasonable excuse for not doing
so. This is intended to be similar to the requirements set out in
section 30(1)(a) of the Carriers and Innkeepers Act 1958.
Subsection (2) specifies that, where a guest asks to use an
accommodation provider's safekeeping service, the
accommodation provider is entitled to inspect the property to be
deposited by the guest and to ask the guest to describe and value
the property. The accommodation provider must provide the
guest with a receipt including the description and estimated value
of the property and may require the guest to place the property in
a container and seal it him or herself. This allows
accommodation providers to protect themselves from fraudulent
claims with regard to property deposited. Subsection (3)
provides that an accommodation provider is liable if the loss of a
guest's property occurs after the accommodation provider has
accepted the property for safekeeping. Subsection (4) limits the
accommodation provider's liability to $3000 for each
accommodation unit provided for the use of the guest on the day
of the loss despite the amount of the loss on the day or the
number of guests using the accommodation who suffer a loss of
property. Subsection (5) provides that the limitation on the
accommodation provider's liability under subsection (4) does not
apply if before, or at the time, the property is accepted for
depositing in the safekeeping service, the guest, in writing,
declares the value of the property is more than $3000 and, if
asked to do so, pays or agrees to pay a fee for the accommodation
provider accepting the property to deposit in the safekeeping
service. Subsection (6) includes examples of reasonable excuses
under subsection (1).
Proposed section 93T sets out the requirement for an
accommodation provider to ensure that guests are notified about
the limits of liability imposed by the Part. The Part does this by
requiring a notice be displayed in the reception area or main
entrance. Additionally a notice must be displayed in the
accommodation unit or drawn to the guest's attention in some
other way, or given to a guest. This requirement reflects
recommendation 9 of the SARC Report.
Proposed section 93U continues the common law right of an
innkeeper's lien to be taken over the guest's property in
circumstances where the bill for accommodation, food, beverages
and other services has not been paid. This common law right
applies to accommodation providers under this Act. The lien
gives the accommodation provider the right to retain possession
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of the property until the guest's account is paid. It is only a right
to obtain possession, not a power of sale.
Proposed section 93V excludes Part 11 relating to prosecutions
and remedies. This is because Part 5C is intended to be self-
contained and does not contain offences.
Clause 13 inserts Schedule 2A into Fair Trading Act 1999. Schedule 2A
specifies the form of notice required to be given to guests under
section 93T if an accommodation provider seeks to limit their
liability. This notice is intended to operate as a warning to guests
rather than as a full explanation of the provisions of the Act.
Similar notice is currently required by section 30 of, and
Schedule 4 to, the Carriers and Innkeepers Act 1958.
A transitional provision relating to signage is at clause 72.
Clause 14 repeals the Carriers and Innkeepers Act 1958.
PART 3--GOODS ACT 1958
Clause 15 repeals section 2(1) of the Goods Act 1958, which provided for
previous repeals in that Act.
Clause 16 amends the heading to Part II and repeals sections 75 to 80 of the
Goods Act 1958. Subsection (1) substitutes a new heading to
Part II of the Goods Act 1958, removing a reference to bills of
lading, which are no longer included in the Part, except in
the context of documents of title. Subsection (2) repeals
sections 75 to 80. The offences in these sections have been
unused since the passage of the Sea-Carriage Documents Act
1998, section 12(3) of which made a bill of lading signed by a
ship's master conclusive evidence against the carrier of the goods.
Prior to the passage of that section, a bill of lading was
conclusive evidence against a ship's master, who often was not in
a position to compensate the holder of the bill of lading for any
loss.
Clause 17 inserts new Parts IV and IVA into the Goods Act 1958. Part IV
ensures that the United Nations Convention on Contracts for the
International Sale of Goods ("Vienna Convention") will continue
to have the force of law in Victoria. Part IVA ensures that the
modern sea-carriage documents framework set out in the
Sea-Carriage Documents Act 1998 will continue to operate in
Victoria.
Proposed section 84 re-enacts section 4 of the Sale of Goods
(Vienna Convention) Act 1987. The section provides that
Part IV, which gives effect to the Vienna Convention, binds the
Crown.
15
Proposed section 85 re-enacts the existing definition at section 3
of the Sale of Goods (Vienna Convention) Act 1987.
This defines the word "Convention".
Proposed section 86 re-enacts section 5 of the Sale of Goods
(Vienna Convention) Act 1987, and provides that the Vienna
Convention is to have the force of law in Victoria.
Proposed section 87 re-enacts section 6 of the Sale of Goods
(Vienna Convention) Act 1987, and provides that the Vienna
Convention is to prevail in the event of inconsistency.
Proposed section 88 re-enacts section 7 of the Sale of Goods
(Vienna Convention) Act 1987, and provides that certain notices
can be issued and that those notices are evidence of matters
contained in the notices.
Proposed section 89 re-enacts section 5 of the Sea-Carriage
Documents Act 1998, and inserts a range of definitions relating
to sea-carriage documents.
Proposed section 90 re-enacts section 6 of the Sea-Carriage
Documents Act 1998, and makes provision for electronic and
computerised sea-carriage documents.
Proposed section 91 re-enacts section 7 of the Sea-Carriage
Documents Act 1998, and provides for the application of the
Part where goods have ceased to exist, or cannot be identified.
Proposed section 92 re-enacts section 8 of the Sea-Carriage
Documents Act 1998, and facilitates the transfer of rights under
contracts of carriage.
Proposed section 93 re-enacts section 9 of the Sea-Carriage
Documents Act 1998, and provides for the extinguishment of
previous rights on the transfer of rights in some circumstances.
Proposed section 94 re-enacts section 10 of the Sea-Carriage
Documents Act 1998, and provides for the transfer of liabilities
under a contract of carriage.
Proposed section 95 re-enacts section 11 of the Sea-Carriage
Documents Act 1998, and provides that the liability of the
original parties are not affected by section 94.
Proposed section 96 re-enacts section 12 of the Sea-Carriage
Documents Act 1998, and provides certain rules for shipment
under bills of lading.
16
Clause 18 inserts proposed sections 124 and 125 into the Goods Act 1958.
These saving provisions are intended to ensure that the validity of
any reference to the Sale of Goods (Vienna Convention) Act
1987 or the Sea-Carriage Documents Act 1998 in an agreement
or other document is not affected by the repeal of those Acts.
Clause 19 substitutes the existing Schedule, dealing with repeals of previous
legislation, to insert the Vienna Convention into the Goods
Act 1958.
Clause 20 repeals the Sale of Goods (Vienna Convention) Act 1987.
Clause 21 repeals the Sea-Carriage Documents Act 1998.
PART 4--AMENDMENTS TO THE CONSUMER AFFAIRS
LEGISLATION AMENDMENT ACT 2010
Clause 22 changes the default commencement date of the Consumer
Affairs Legislation Amendment Act 2010 to 1 September 2011.
This amendment is intended to allow sufficient time to
effectively implement the changes effected by the legislation and
gives more time to communicate those changes to stakeholders.
See also clause 72(1) for a related amendment to the Fair
Trading Act 1999.
Clause 23 makes several amendments to section 18 of the Consumer
Affairs Legislation Amendment Act 2010 relating to debt
collection. Section 18 of that Act inserts a new Part 5B into the
Fair Trading Act 1999 to regulate debt collectors and debt
collection.
Subclause (1) inserts a definition of consumer debt into
section 93E being inserted into the Fair Trading Act 1999.
It means any debt incurred by a natural person wholly or
predominantly in connection with personal, domestic or
household purposes. It also inserts a definition of debt that
includes an alleged debt, and imports the same meaning of
enforcement expenses as is contained in the National Credit
Code.
Subclause (2) amends section 93F being inserted into the Fair
Trading Act 1999. Subclause (2)(a) precludes the operation of
the negative licensing system established by Part 5B where
damages have been awarded under sections 93N and 162AB.
Subclause (2)(b) inserts a new subsection into section 93F(1)(a)
of the Fair Trading Act 1999. This will have the effect of
prohibiting a natural person from acting as a debt collector for
five years after being found guilty of an offence against proposed
section 93M to be inserted by subclause (8).
17
Subclause (3) inserts a new subparagraph into section 93F(1)(b)
being inserted into the Fair Trading Act 1999. This will have
the effect of prohibiting a corporation acting as a debt collector
for five years after being found guilty of an offence against
proposed section 93M to be inserted by subclause (8).
Subclause (4) inserts "53A(2) or" before "60" in section
93F(1)(b)(iii) being inserted into the Fair Trading Act 1999 by
section 18 of the Consumer Affairs Legislation Amendment
Act 2010 to ensure that contraventions of that section of the
Trade Practices Act 1974 of the Commonwealth (which involve
the use of physical violence, undue harassment or coercion with
respect to payments for interests in land) are captured.
Subclause (4)(b) clarifies that only contraventions of sections
53A(2) and 60 in connection with debt collection will cause a
person engaging in debt collection to become a prohibited
person.
Subclause (5) substitutes section 93K(2) being inserted into the
Fair Trading Act 1999. Section 93K maintains an existing
restriction on the recovery of costs for debt collectors contained
in section 38 of the Private Agents Act 1966. The substituted
provision clarifies that enforcement expenses can be recovered
where a credit contract permits such recovery and, in cases where
a debt is not wholly or predominantly accrued in connection with
personal, domestic or household purposes, where a term of an
agreement permits such recovery.
Subclause (6) inserts a definition of credit contract into section
93K(4). The definition is the same as that in the National Credit
Code of the Commonwealth.
Subclause (7) repeals section 93K(5) being inserted into the Fair
Trading Act 1999, as it has been made redundant by the
amendment proposed in subclause (5).
Subclause (8) rephrases section 93L being inserted into the Fair
Trading Act 1999, which makes it an offence to purchase debt
for the purpose of collection, in light of the new definition of
consumer debt.
Subclause (8) also inserts section 93M, which creates a new
offence of using a prohibited debt collection practice.
The section contains a list of prohibited debt collection practices
derived from section 21(2) of the Fair Trading Act 1999.
Section 93M(1) provides a person must not in trade or commerce
engage in a prohibited debt collection practice while collecting or
attempting to collect a debt or repossessing or attempting to
repossess a good. Section 93M(2) defines what constitutes
prohibited debt collection practices, and gives examples of
18
conduct that falls into each category of prohibited collection
practices. Section 93M(3) broadens the definition of debtor to
include guarantors of debts and mortgagors. Section 93M(4) is
an inclusive definition of official document clarifying that
documents such as infringement notices and court documents are
among the type of documents covered. Section 93M(5) provides
that section 93M does not apply to a sheriff, a member of the
police force, a bailiff or a public official acting in an official
capacity, to clarify that such officials are not held to be liable
under this section when performing their official duties.
Proposed section 93M(2)(a) prohibits a person using physical
violence, undue harassment or coercion. This provision is
intended to operate in a manner consistent with, and not alter the
effect of, section 21(1) of the Fair Trading Act 1999.
Proposed sections 93M(2)(b), (c) and (d) prohibit a person
entering or threatening to a private residence without lawful
authority, using any threat, deception or misrepresentation to
obtain consent to enter a private residence, or refusing to leave
a private residence or workplace when requested to do so.
Refusing to leave a private residence or workplace when
requested to do so is currently an offence under section 21(2)(k)
in the Fair Trading Act 1999. Entering premises without lawful
authority is an offence for debt collection agents under section 27
of the Private Agents Act 1966, attracting a 20 penalty unit
penalty, which was set in 1990. Because the offence of unlawful
entry has been restricted to private residences, the penalty has
been increased to a maximum of 240 penalty units for a natural
person to align the penalty with that of failing to leave residential
premises when requested, and to ensure that a sufficient deterrent
exists to a person unlawfully interfering with another person's
home when collecting a debt or repossessing a good.
Proposed sections 93M(2)(e) and (f) prohibit a person doing or
threatening to do any act that may intimidate or expose to ridicule
another person or a member of a family of that person. A similar
offence exists under section 21(2)(j) in the Fair Trading
Act 1999.
Proposed section 93M(2)(g) prohibits a person using a document
that is not an official document which resembles or purports to be
an official document. In addition to section 21(2)(a) of the Fair
Trading Act 1999, section 4(1) of the Unauthorized
Documents Act 1958 creates a similar offence with respect to
judicial process. Similar to the Unauthorized Documents Act
1958, it is not intended that any person be coerced or misled by
the resemblance, merely that a document is used that conveys the
impression it is an official document when it is not. This is to
19
ensure that any person, regardless of their level of sophistication,
can readily and easily distinguish between an officially issued
document and a private demand for payment. Examples of
documents that would contravene this subsection by resembling
notices issued under the Infringements Act 2006 can be found in
the case Corporation of the City of Adelaide v Adelaide City
Fines Pty Ltd (2009) 253 ALR 417. Official document is
defined at section 93M(4).
Proposed section 93M(2)(h) prohibits a person impersonating an
agent or employee of the State, another state, a territory or the
Commonwealth. This is to ensure that any person can readily
and easily distinguish government officials and private citizens
collecting debts. A similar offence exists under section 21(2)(c)
in the Fair Trading Act 1999, although this is limited to bailiffs
and police officers. A broader definition is included to ensure
that no deception of this kind is permitted, regardless of the type
of government employee or agent impersonated.
Proposed section 93M(2)(i) prohibits any attempt or threat to take
possession of any property where a person does not have an
entitlement to take possession. This new provision is intended to
make it an offence for a person to attempt to deprive or threaten
to deprive another person of his or her property without lawful
authority.
Proposed section 93M(2)(j) prohibits disclosure of and threats to
disclose debt information, without the consent of the debtor, to
other persons who do not have a clear and legitimate interest in
the information. A similar offence exists under section 21(2)(g)
in the Fair Trading Act 1999.
Proposed section 93M(2)(k) prohibits the use of certain false or
misleading representations regarding debt collection. A similar
offence exists under section 21(2)(b) in the Fair Trading Act
1999, although the prohibitions do not cover false or misleading
representations about the nature or extent of a debt. A notable
example in the section deals with threats to give to a credit
reporting agency information that could affect another person's
creditworthiness that could not be given or, if given, would be
false or misleading. Section 18R of the Privacy Act 1988 of the
Commonwealth makes it an offence for a credit provider (within
the meaning of that Act) to intentionally give a credit report that
includes false or misleading information, while section 18E(8)
restricts what information can be given by the credit provider.
20
Proposed section 93M(2)(l) prohibits contacting a debtor by a
method which the debtor has asked not to be used unless there is
no other method available. For example, a debtor may specify
that no communication be made by telephone. A similar offence
exists under section 21(2)(l) in the Fair Trading Act 1999.
Proposed section 93M(2)(m) prohibits contact with a person
about a debt after the person has advised in writing that they do
not wish to be contacted about that debt unless the contact is by
way of an action issued through the court or the threat of an
action which the person to whom the debt is owed is entitled to
issue through the court and which the person intends to take.
Proposed section 93M(2)(n) prohibits communicating with a
person under 18 years of age in relation to a debt, if the person is
not the debtor. A similar offence exists under section 21(2)(i) in
the Fair Trading Act 1999. This is intended to ensure children
are protected in the debt collection process.
Proposed section 93M(2)(o) prohibits a person demanding
payment of a debt from another person without having a belief on
reasonable grounds that the other person is the debtor and is
liable for the debt. The subsection is intended to prevent
"speculative" debt collection where the creditor does not know
the identity or contact details of a debtor. For example, it is
intended to prohibit a person demanding payment of a debt from
several people with the same or similar name as a debtor in the
hope one will pay the debt. It is also intended to prevent
demands for payment of a debt after the debt has been repaid.
The section is not intended to prevent attempts to locate or
identify the debtor.
Proposed section 93M(2)(p) prohibits communication with a
person that is unreasonable in its frequency, nature or content.
Proposed section 93M(3) defines debtor for the purposes of
section 93M to include a guarantor of a debtor and a mortgagor.
Proposed section 93M(4) defines official document for the
purposes of section 93M(2)(d) to include any document
resembling a summons, a court document, a Tribunal document
or a notice issued under the Infringements Act 2006 along with
any other communication that is authorised, issued or approved
by a court, the Tribunal, a government or a government agency.
The reference to notices issued under the Infringements Act
2006 has been added to prevent the use of documents that may
cause a person to believe they had received a fine. Section 38 of
the Interpretation of Legislation Act 1984 also defines the term
document.
21
Proposed section 93M(5) clarifies that police officers, bailiffs
sheriffs and other agents and employees of the State, another
state, a territory or the Commonwealth are exempt from the
operation of this section when acting in an official capacity.
This is to avoid doubt about the applicability of the section.
Proposed section 93N creates a power for a court or VCAT to
award stand alone damages for distress and humiliation to
compensate any person who has experienced distress or
humiliation as a result of a course of conduct in contravention of
proposed section 93M without the need to demonstrate other loss
or injury (including psychiatric injury). This is intended to
ensure that the costs of consumer detriment caused by unfair debt
collection practices are recognised and borne by the person who
caused the detriment to occur. Proposed subsection (1) creates a
power for a court or VCAT to award damages of up to $10 000
(or a prescribed amount) if a person has experienced humiliation
or distress due to a course of conduct in contravention of
section 93M with respect to a consumer debt. The award of
damages can be made against the person who engaged in the
contravening conduct or a person involved in that conduct as an
accessory in a manner similar to section 159 of the Fair Trading
Act 1999. Subclause (2) defines course of conduct and applies
section 145 of the Fair Trading Act 1999 through a definition of
person involved. A requirement that a course of conduct
consisting of contraventions on two or more occasions has been
included to ensure that one-off accidental and technical breaches
of proposed section 93M do not give rise to a cause of action
under proposed section 93N(1). Compensation for one-off
offences remains available under section 160 of the Fair
Trading Act 1999. Subclause (3) provides that the section is
intended to apply despite any other remedy that may be available,
and that it is not intended to affect any other remedy.
For example, if a person enters another person's private residence
without lawful authority, the first person may also be liable for
damages in trespass. Subclause (4) excludes clauses 28BB and
28GG of Schedule 1 to the Victorian Civil and Administrative
Tribunal Act 1998 to ensure that where a claim is a small claim
heard at VCAT, restrictions on legal representation and costs
awards will not apply. The restriction on costs awards has been
removed to give VCAT discretion to award costs, for example
if litigation under this section is frivolous or vexatious.
Subsection (5) excludes the operation of Part VBA of the
Wrongs Act 1958 to clarify that a person claiming damages
under the section will not have to meet the threshold level of
"significant injury" or undergo an assessment of impairment.
22
Clause 24 inserts section 18A into the Consumer Affairs Legislation
Amendment Act 2010. This section amends sections 153(1)
and 154(8)(a) and (b) of the Fair Trading Act 1999 to extend
the remedies in those sections to debt collection activities under
Part 5B.
Clause 25 repeals section 20 of the Consumer Affairs Legislation
Amendment Act 2010. Clause 77(2) replaces this section.
Clause 26 is statute law revision, amending section 36(c) of the Consumer
Affairs Legislation Amendment Act 2010 to clarify that only
lot owners can appoint a proxy to represent them on the owners
corporation committee in accordance with section 87(1)(c) of the
Owners Corporations Act 2006.
Clause 27 is statute law revision, changing a reference to "Schedule 1" in
section 42(2) of the Consumer Affairs Legislation Amendment
Act 2010 to "the Schedule", reflecting that there is one Schedule
to the Act.
Clause 28 is statute law revision, amending section 43 of the Consumer
Affairs Legislation Amendment Act 2010 to change the word
"endorsed" to "approved" to reflect the administrative processes
to be used in proposed section 3B(1)(a) of the Prostitution
Control Act 1994.
Clause 29 is statute law revision, amending section 44 of the Consumer
Affairs Legislation Amendment Act 2010 to clarify that safer
sex practices specified in section 18A of the Prostitution
Control Act 1994 apply to sex work services.
Clause 30 is statute law revision, repealing an unnecessary instance of the
word "Act" in section 50 of the Consumer Affairs Legislation
Amendment Act 2010.
Clause 31 amends section 55 of the Consumer Affairs Legislation
Amendment Act 2010 to align with section 49 of that Act and
provide that an identity card issued under section 52AAA(2) of
the Prostitution Control Act 1994 may include a photograph.
Clause 32 is statute law revision, repealing certain delegations in
sections 68(3) and (5) of the Consumer Affairs Legislation
Amendment Act 2010.
Clause 33 is statute law revision, renumbering provisions in section 73(1)(c)
of the Consumer Affairs Legislation Amendment Act 2010.
23
Clause 34 is statute law revision, and amends item 22 of the Schedule to the
Consumer Affairs Legislation Amendment Act 2010, which
changes the terminology from "prostitution" to "sex work".
PART 5--AMENDMENTS TO THE ESTATE AGENTS
ACT 1980
Clause 35 amends definitions contained in section 4 of the Estate Agents
Act 1980. Subclause (1)(a) removes requirements that an
approved auditor has obtained a degree in accounting or similar,
and has completed education required by the Director of
Consumer Affairs Victoria. This is because the membership
requirements of the professional bodies listed in subsection (a)
typically include completion of a degree in accounting, while the
Director has not required any other course of education.
Subclause (1)(b) is statute law revision to correct numbering.
Subclause (1)(c) repeals the definition of registered office as part
of amendments that aim to ensure a clear distinction between a
company's "registered office" required for the Corporations Act
and the address required to be registered for the purposes of the
Estate Agents Act 1980. It also repeals the definition registered
education and training organisation. Subclause (2) inserts a
new definition of business day to remove references to the now-
repealed Bank Holidays Act 1958. Subclause (3) defines
registered address as being the address recorded in the register as
the address for the service of documents and communications of
a licensed estate agent. This definition is designed to be more
readily distinguished from the "registered office" required under
the Corporations Act.
Clause 36 repeals sections 10A to 10D of the Estate Agents Act 1980.
These sections allow the Director of Consumer Affairs Victoria
to approve registered education and training organisations for the
education of licensees and agents' representatives, and courses of
education required for approved auditors. The sections also
allow such approvals to be disallowed by Parliament.
The sections are redundant because a national framework exists
for the approval of training organisations, and professional
organisations tend to set what training is required by auditors.
Clause 37 amends section 13B(2) of the Estate Agents Act 1980 to remove
the ability for a person who held an auctioneer's licence prior to
the repeal of section 8 of the Auction Sales Act 1958 to obtain
an accredited auctioneer's certificate in order to be exempt from
the requirement specified in section 13B(1) of the Estate Agents
Act 1980 that an auctioneer of real estate be a licensed estate
agent. This repeal occurred in 1994, giving former licensed
24
auctioneers sufficient time to obtain an accredited auctioneer's
certificate if they wished to continue to auction real estate.
The new subsection allows any person who already holds an
accredited auctioneer's certificate to continue to be exempt from
the requirement under section 13B(1) that an auctioneer of real
estate must be a licensed estate agent.
Clause 38 amends section 17 of the Estate Agents Act 1980 to substitute
references to "registered office" (which is terminology also used
in the Corporations Act) with references to "registered address".
A new definition of registered address is included in clause 48.
Clause 39 amends section 33 of the Estate Agents Act 1980 to substitute a
reference to "registered office" (which is terminology also used
in the Corporations Act) with a reference to "registered address".
A new definition of registered address is included in clause 48.
Clause 40 amends section 35 of the Estate Agents Act 1980 to substitute
references to "registered office" (which is terminology also used
in the Corporations Act) with references to "registered address".
Subclause (1) changes the heading of the section. Subclause (2)
substitutes subsection 35(1) to require that licensed estate agents
and agents' representatives have a registered address.
Subclause (3) repeals a reference to "registered office". A new
definition of registered address is included in clause 48.
Clause 41 repeals section 36 of the Estate Agents Act 1980. Section 36
requires the Business Licensing Authority to check whether a
prospective or current estate agency business has a similar name
to an existing licensee or is otherwise misleading. New South
Wales' Property, Stock and Business Agents Act 2002 does not
require such checks, and both the Business Names Act 1962 and
the Corporations Act make provision for similar names. It is
therefore proposed to repeal this requirement as part of moves to
more closely align Victorian licensing procedures with those of
other jurisdictions in anticipation of national licensing of estate
agents.
Clause 42 substitutes section 38 of the Estate Agents Act 1980 to
modernise the terminology of the offence of pretending to be a
licensed estate agent by displaying signage to that effect, and
strengthen the penalty associated with the offence from
25 penalty units to 60 penalty units to make the penalty attached
to the offence more transparent and enable substantial
infringement notices to be issued in connection with the offence.
25
Clause 43 repeals sections 39 and 40. Section 39 requires a licensed estate
agent to display signage describing themselves as a licensed
estate agent at their place of business. This section will become
impractical to enforce with the forthcoming move to national
licensing of estate agents and will be of little practical benefit for
consumers when dealing with estate agents operating in other
jurisdictions. The repeal of section 40 removes a requirement
that an estate agent includes his or her name, any company
directors' names and a description of themselves as a licensed
estate agent on all letterhead. Sections 88(1)(c) and 153 of the
Corporations Act set out requirements for the use of corporations'
names on letterhead, while New South Wales lacks an equivalent
requirement.
Clause 44 substitutes section 42(1) of the Estate Agents Act 1980,
removing a requirement to list an address in advertisements,
because such information exists in the register. This brings
Victoria's legislation into line with section 50(1) of New South
Wales' Property, Stock and Business Agents Act 2002.
Clause 45 repeals sections 45, 45A, 45B and 46 of the Estate Agents Act
1980. Sections 45, 45A and 45B are redundant provisions
relating to continuing professional development. Section 46
requires estate agents to maintain records of salary, wages and
commissions paid. In practice, such statements are rarely used in
compliance activities but impose a considerable compliance
burden on business.
Clause 46 amends section 55(14) of the Estate Agents Act 1980.
The amendment removes a requirement that the Director of
Consumer Affairs Victoria approves any purchase of a property
by the estate agent commissioned to sell the property. It instead
requires that the vendor, and a legal practitioner, conveyancer or
accountant representing the vendor but not the purchaser, give
written consent to the sale and notify the Director within 7 days.
This is intended to give vendors and estate agents greater
flexibility when undertaking transactions to which they mutually
agree while still ensuring independent oversight of such
transactions. Subsection (b) repeals section 55(15), which
requires a person to comply with conditions specified by the
Director.
Clause 47 amends section 64 of the Estate Agents Act 1980 to strengthen
penalties with respect to audits. Subclause (1) inserts a
120 penalty unit penalty for failing to comply with the
requirement to have accounts audited annually, replacing the
existing 25 penalty unit default penalty to facilitate the issue of
infringement notices and generally improve compliance.
26
Subclause (2) replaces a requirement that the auditor submit
the audit report directly to the Director of Consumer Affairs with
a requirement to provide the audit report to the estate agent.
This procedure is similar to section 319 of the Corporations Act.
Subclause (3) requires the audit report to be lodged with the
Director of Consumer Affairs within 10 days of its receipt.
Clause 48 amends section 99 of the Estate Agents Act 1980 to provide
greater flexibility in the regulation-making powers. The powers
after the amendment will be similar to those contained in the
Conveyancers Act 2006.
Clause 49 amends the heading to Part IX of the Estate Agents Act 1980 to
refer to savings provisions.
Clause 50 inserts proposed section 102 into the Estate Agents Act 1980, a
saving provision to ensure that existing agreements that the
Secretary to the Department of Justice has entered into with
authorised financial institutions remain valid as agreements
entered into by the Secretary, despite the repeal of the previous
method of appointment as part of the Consumer Affairs
Legislation Amendment Act 2010.
PART 6--AMENDMENTS TO THE CONVEYANCERS
ACT 2006
Clause 51 repeals section 39 of the Conveyancers Act 2006. Section 39
requires the Business Licensing Authority to check whether a
prospective or current conveyancer has a similar name to an
existing licensee or is otherwise misleading. New South Wales
does not require such checks, and both the Business Names Act
1962 and the Corporations Act make provision for similar names.
It is therefore proposed to repeal this requirement as part of
moves to more closely align Victorian licensing procedures with
those of other jurisdictions in anticipation of national licensing
for conveyancers.
Clause 52 repeals sections 59(1) and (2) of the Conveyancers Act 2006.
These subsections require a licensed conveyancer to display
information at their place of business. This section will become
impractical to enforce with the forthcoming move to national
licensing of conveyancers and will be of little practical benefit
for consumers when dealing with conveyancers operating in
other jurisdictions. Section 59(3) is to be repealed as part of the
standardised business licensing framework contained in Part 4 of
the Bill.
27
Clause 53 repeals section 60 of the Conveyancers Act 2006, removing a
requirement that a conveyancer includes his or her name, any
company directors' names and a description of themselves as a
licensed conveyancers on all letterhead. Sections 88(1)(c) and
153 of the Corporations Act set out requirements for the use of
corporations' names on letterhead. Further, New South Wales
lacks an equivalent requirement.
Clause 54 amends section 84 of the Conveyancers Act 2006 to strengthen
penalties with respect to audits by inserting a 120 penalty unit
maximum penalty for failing to comply with the requirement to
have accounts audited annually to facilitate the issue of
infringement notices and generally improve compliance.
Clause 55 amends section 85 of the Conveyancers Act 2006 to replace a
requirement that the auditor submit the audit report directly to the
Director of Consumer Affairs with a requirement to provide the
audit report to the conveyancer. This procedure is similar to
section 319 of the Corporations Act. Subsection (2) aligns the
penalty with that applying to estate agents. Subsection (3)
provides that a conveyancer must lodge an audit report within
10 days of receipt.
Clause 56 amends section 183(3)(b) of the Conveyancers Act 2006 for
statute law revision purposes.
PART 7--AMENDMENTS TO THE SALE OF LAND ACT 1962
Clause 57 amends section 9AA(1) of the Sale of Land Act 1962 to increase
the maximum deposit on off-the-plan sales of land from 10 per
cent to 20 per cent. Subclause (1) increases the amount of the
maximum deposit, and removes the ability to pay a deposit into a
special purpose account. Subclause (2) introduces a new
provision requiring the disclosure of certain matters relating to
off-the-plan sales including that the amount of deposit is
negotiable, that a substantial period of time may elapse between
when the contract is signed and when the purchaser becomes the
registered proprietor of the lot, and that the value of the lot may
change in the period between when the contract is signed and
when the purchaser becomes the registered proprietor of the lot.
Subclauses (3), (4) and (5) repeal references to the operation of
special purpose accounts. Subclause (5) also makes a statute law
revision amendment, removing a redundant reference to
section 9AH in section 9AA(6).
Clause 58 amends section 29H of the Sale of Land Act 1962 for statute law
revision purposes.
28
Clause 59 repeals section 31(5)(e) of the Sale of Land Act 1962, which
currently restricts the ability of purchasers of land to exercise
cooling-off rights if they have sought and received advice from a
legal practitioner.
Clause 60 inserts a savings provision into the Sale of Land Act 1962
relating to special purpose accounts. Subclause (1) amends the
heading to Part 3 of the Act to provide for savings provisions.
Subclause (2) inserts proposed section 51, which provides that
signature requirements for the release of deposits will continue to
apply, and that with respect to the right of rescission contained in
section 9AE, a reference to section 9AA is to be treated as a
reference to section 9AA at the time the contract of sale was
signed. This is to ensure that vendors are not required to amend
existing contracts to comply with the updated requirements of
section 9AA such as additional disclosure caused by the
amendments.
PART 8--STANDARDISATION OF INFRINGEMENTS
FRAMEWORK IN CONSUMER ACTS
Clause 61 inserts section 81A into the Funerals Act 2006, providing a
power to authorised officers to serve infringement notices.
Subclause (1) creates the power for authorised officers to serve
infringement notices. Subclause (2) makes any offence for which
an infringement notice can be served under subclause (1) an
infringement offence for the purposes of the Infringements Act
2006. Subclause (3) provides that the infringement penalty
(within the meaning of the Infringements Act 2006) is the
prescribed infringement penalty. Subclause (4) defines who is an
authorised officer for the purposes of the section, being an
inspector, a member of the police force or a person authorised in
writing by the Director of Consumer Affairs Victoria.
Clause 62 inserts section 203A into the Owners Corporations Act 2006,
providing a power to authorised officers to serve infringement
notices. Subclause (1) creates the power for authorised officers
to serve infringement notices. Subclause (2) makes any offence
for which an infringement notice can be served under
subclause (1) an infringement offence for the purposes of the
Infringements Act 2006. Subclause (3) provides that the
infringement penalty (within the meaning of the Infringements
Act 2006) is the prescribed infringement penalty. Subclause (4)
defines who is an authorised officer for the purposes of the
section, being an inspector, a member of the police force or a
person authorised in writing by the Director of Consumer Affairs
Victoria.
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Clause 63 amends the Travel Agents Act 1986. Subclause (1) amends
section 39ZC to allow infringement offences to be prescribed,
rather than requiring the Act to be amended to create such
offences. Subclause (2) repeals a redundant provision dealing
with the form of the notice. The Infringements Act 2006
provides for the form of a notice. Subclause (3) repeals the
Schedule to the Travel Agents Act 1986 which specifies
offences for which infringement notices can be issued.
Clause 64 amends the Residential Tenancies Act 1997. Subclause (1)
amends section 510C to allow infringement offences to be
prescribed, rather than requiring the Act to be amended to create
such offences. Subclause (2) repeals a redundant provision
dealing with the form of the notice. The Infringements Act
2006 provides for the form of a notice. Subclause (3) repeals the
Schedule to the Travel Agents Act 1986 which specifies
offences for which infringement notices can be served.
Clause 65 inserts section 42B into the Retirement Villages Act 1986,
providing a power to authorised officers to serve infringement
notices. Subclause (1) creates the power for authorised officers
to serve infringement notices. Subclause (2) makes any offence
for which an infringement notice can be served under
subclause (1) an infringement offence for the purposes of the
Infringements Act 2006. Subclause (3) provides that the
infringement penalty (within the meaning of the Infringements
Act 2006) is the prescribed infringement penalty. Subclause (4)
defines who is an authorised officer for the purposes of the
section, being an inspector, a member of the police force or a
person authorised in writing by the Director of Consumer Affairs
Victoria.
Clause 66 inserts section 48B into the Sale of Land Act 1962, providing a
power to authorised officers to serve infringement notices.
Subclause (1) creates the power for authorised officers to serve
infringement notices. Subclause (2) makes any offence for which
an infringement notice can be served under subclause (1) an
infringement offence for the purposes of the Infringements Act
2006. Subclause (3) provides that the infringement penalty
(within the meaning of the Infringements Act 2006) is the
prescribed infringement penalty. Subclause (4) defines who is an
authorised officer for the purposes of the section, being an
inspector, a member of the police force or a person authorised in
writing by the Director of Consumer Affairs Victoria.
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PART 9--AMENDMENTS TO FAIR TRADING ACT 1999
Clause 67 amends section 112A of the Fair Trading Act 1999 to ensure
that a court cannot make an order as to costs if the court must
dismiss the proceedings because they are being moved to the
small claims list at VCAT. Some courts have been making such
costs orders, which defeats the intent of the provision to allow
consumers to move proceedings to the low cost small claims list
without incurring other court costs.
Clause 68 amends section 143 of the Fair Trading Act 1999 to clarify that
section 143 applies to all contraventions, not merely criminal
offences. Section 143 provides that, in the event a body
corporate contravenes a provision, an officer of a body corporate
is deemed to be liable if he or she was knowingly concerned in
the contravention. This is intended to prevent further problems in
interpretation of the sort that arose in the case Astvilla Pty Ltd v
Director of Consumer Affairs Victoria [2006] VSC 289 and
thereby allow injunctions to be obtained in a broader range of
situations. It should be noted that section 38 of the
Interpretation of Legislation Act 1984 defines contravention to
include a failure to comply with an Act or subordinate instrument
or provision, unless the contrary intention appears.
Clause 69 is statute law revision, correcting a typographical error in
section 155(2) of the Fair Trading Act 1999 that refers to a
now-repealed subsection.
Clause 70 replicates proposed sections 93M and 93N (from clause 23) to
enable those sections to be proclaimed on or before 1 January
2011.
Clause 71 enables the repeal of the provisions in clause 70.
Clause 72 amends Schedule 3 to the Fair Trading Act 1999. Subclause (1)
amends clauses 16(1) and (2) of to replace an existing
requirement that the Chief Commissioner hand over records
relating to licensees under the Private Agents Act 1966 to the
Director of Consumer Affairs on 1 January 2011 with a
requirement that those records are handed over when section 18
of the Consumer Affairs Legislation Amendment Act 2010
comes into force. This relates to the amendment in clause 22.
Subclause (2) inserts clauses 22 and 23 into Schedule 3 to the
Fair Trading Act 1999. Clause 22 relates to the repeal of the
Carriers and Innkeepers Act 1958 by clause 14 of the Bill,
ensuring that notices posted under that Act will be valid as a new
notice under proposed Part 5C for one month to ensure that
accommodation providers are not obliged to immediately change
31
notices when the new Part comes into operation. Clause 23
ensures that Part IVA of the Landlord and Tenant Act 1958
will continue to apply to a lease to which that Part currently
applies, despite the repeal of the Landlord and Tenant Act 1958
by clause 75. Proposed section 32ZS(5) in clause 3 excludes the
operation of the new uncollected goods provisions from such
leases.
PART 10--AMENDMENT TO THE BUSINESS LICENSING
AUTHORITY ACT 1998
Clause 73 repeals section 5(1)(b), (5) and (6) of the Business Licensing
Authority Act 1998. This removes the Director of Liquor
Licensing from the Business Licensing Authority, reflecting the
separation of liquor and business licensing. A transitional
provision is also inserted.
PART 11--AMENDMENT TO PROSTITUTION CONTROL
ACT 1994
Clause 74 is statute law revision, amending section 61DA(3) of the
Prostitution Control Act 1994.
PART 12--MISCELLANEOUS AMENDMENTS AND
REPEALS
Clause 75 repeals the Landlord and Tenant Act 1958. Clause 78 is a
savings provision that provides that any tenancies that remain
operative under Part V of that Act will remain on foot.
Clause 76 makes various amendments to the Motor Car Traders Act
1986. Subclause (1) updates a reference to "bill of sale" in the
definition of owner to reflect that under the National Credit
Code, such instruments are now referred to as "goods
mortgages". Subclause (2) amends section 28(3) of the Motor
Car Traders Act 1986 to ensure that a person who is
disqualified from holding a licence cannot circumvent restrictions
by becoming a director of a corporate licensee. Subclause (3)
substitutes a new section 29A(1) to allow directors of
corporations whose licences have been suspended because of a
claim against the Motor Car Traders Guarantee Fund to apply for
permission to continue operating.
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Clause 77 amends sections 11 and 21 of the Owners Corporations Act
2006. Subclause (1) repeals paragraph (a) of section 11,
requiring that a delegation to the committee must occur by
instrument. Subclause (2) inserts three new subsections
providing that delegations to the committee (except for the power
of delegation and powers requiring unanimous or special
resolutions) can occur by resolution or instrument, that the
instrument or resolution must be made at a general meeting and
that the delegation to a committee ceases to have effect at the
next annual general meeting. A note informs users of the
legislation that an owners corporation that did not have valid
delegations in place prior to section 33 of the Consumer Affairs
Legislation Amendment Act 2010 commencing may, by
resolution, ratify those decisions. Subclause (3) inserts new
subsection (2A) of section 21 of the Owners Corporations Act
2006 to simplify witnessing requirements for the use of the seal
of an owners corporation when sealing an owners corporation
certificate by allowing the use of the seal to be witnessed by the
registered manager or the chairperson of the owners corporation.
Clause 25 of the Bill repeals an uncommenced reformed
delegation provision inserted by section 20 of the Consumer
Affairs Legislation Amendment Act 2010 that did not allow
delegation by resolution to occur.
Clause 78 amends the Residential Tenancies Act 1997 to insert savings
and transitional provisions relating to leases under Part V of the
Landlord and Tenant Act 1958. Such leases are typically of
prescribed premises where the original lease was entered into
between 1941 and 1954. Subclause (1) inserts new section 14(3)
into the Residential Tenancies Act 1997, which provides that
the Residential Tenancies Act 1997 does not apply to tenancies
to which Part V of the Landlord and Tenant Act 1958 applied
immediately before that Act was repealed. When combined with
clause 13 of Schedule 1 to the Residential Tenancies Act 1997
to be inserted by subclause (3), this preserves the right of
protected tenants who hold prescribed premises under Part V of
the Landlord and Tenant Act 1958 to continue to have Part V
apply to the tenancy. Subclause (2) repeals section 15(1) of the
Residential Tenancies Act 1997, which ensured Parts I to IVA
of the Landlord and Tenant Act 1958 did not apply to tenancies
under the Residential Tenancies Act 1997; clause 75 of this Bill
repeals the Landlord and Tenant Act 1958. Subclause (3)
amends Schedule 1 to the Residential Tenancies Act 1997 to
insert new Division 4. Proposed clause 12 inserts a definition of
commencement day. Proposed clause 13 of new Division 4
ensures that Part V of the Landlord and Tenant Act 1958
continues to apply to prescribed premises within the meaning of
33
the Landlord and Tenant Act 1958. Proposed clause 14 is
intended to clarify that only the partner of a protected tenant in
possession of prescribed premises residing with the tenant may
take over the lease upon the death of the tenant. It is not intended
that children and other relatives would be entitled to take over the
lease as prescribed premises.
Clause 79 clarifies supervision requirements for travel agents. Subclause
(1) amends section 3(1) of the Travel Agents Act 1986 to insert
a definition of manager as being the person in charge of the
day-to-day operations of a place of business. Subclause (2)
substitutes section 33 of the Travel Agents Act 1986.
New section 33 replaces a requirement to prescribe educational
qualifications with a provision allowing the Director of
Consumer Affairs Victoria to approve them. It also changes a
requirement that a person with the prescribed qualifications be
present to a requirement that a manager supervise the place of
business. This ensures consistency with details contained in the
register established by section 15 of the Travel Agents Act 1986.
The penalty attached has also been increased from 10 penalty
units to a maximum of 60 penalty units to enable the issue of
infringement notices with respect to the offence.
Clause 80 inserts clause 51ADA into Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 to confer discretion on
VCAT to award a broader range of costs, including costs incurred
by lot owners and owners corporation managers, in disputes
about arrears of fees and charges imposed by owners
corporations.
Clause 81 provides that various Acts are amended as specified in the
Schedule. The Schedule amends various Acts to change the short
title of the Prostitution Control Act 1994 to the Sex Work Act
1994. The short title was amended by section 42 of the
Consumer Affairs Legislation Amendment Act 2010.
Clause 82 provides that the amending Act is repealed on 1 September 2012.
The repeal of this Act does not affect the continued operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
SCHEDULE
The Schedule sets out consequential amendments arising from the change of
the short title of the Prostitution Control Act 1994.
34