FAIR TRADING ACT 1999

Victorian Consolidated Legislation

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FAIR TRADING ACT 1999

No. 16 of 1999
Version incorporating amendments as at 19 March 2008

TABLE OF PROVISIONS

Section Page

PART 1-PRELIMINARY

1. Purposes
2. Commencement
3. Definitions
4. Representations as to future matters
5. Crown bound
6. Extra-territorial application of this Act

PART 2-UNFAIR PRACTICES

7. Unconscionable conduct within the meaning of the unwritten
law
8. Unconscionable conduct
8A. Unconscionable conduct in business transactions
8B. The price for a supply or acquisition, or possible supply or acquisition
9. Misleading or deceptive conduct
10. Misleading conduct in relation to goods
11. Misleading conduct in relation to services
12. False representations in relation to goods and services
13. False representations in relation to employment
14. False testimonials
15. Cash price to be stated in certain circumstances
16. Offering gifts and prizes
17. Bait advertising
18. Referral selling
19. Accepting payment without being able to supply as ordered
20. Misleading representations about certain business activities
21. Harassment and coercion
22. Pyramid selling
23. Unsolicited prescribed cards
24. Right to payment for unsolicited goods or services
24A. Right to payment for goods or services not supplied
25. Liability of recipient of unsolicited goods
26. Liability of recipient of unsolicited services
27. Right to payment for unauthorised entries or advertisements
28. When right to payment deemed to be asserted
29. Address to be included in documents
30. Mock auctions
31. Simplification of proof
32. Publications which are not prohibited

PART 2A-IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY

Division 1-Interpretation

32A. Definitions
32B. What are conditions and warranties?
32BA. What are antecedent negotiations?
32C. When is a person aware of a fact, matter or circumstance?

Division 2-Application of Part 32CA. Application of Part 32D. This Part applies to certain kinds of contracts

32DA. This Part does not apply to certain kinds of contracts
32E. How is cash price determined for contracts generally?
32EA. How is cash price determined for leases of goods?
32EB. Presumption that this Part applies to supply
32F. Application of Part to mixed contracts
32FA. Application of Goods Act 1958 to contracts of supply

Division 3-Supply of goods or services

32G. Terms implied in contracts as to right to supply
32GA. Transfer of limited interest in goods
32GB. Terms implied in leases as to right to hire
32H. Supply of goods by description
32HA. Supply of goods by sample
32I. Merchantable quality of goods supplied
32IA. Fitness of goods for purpose
32J. Implied conditions in supply of services
32JA. Fitness of services for purpose
32K. Supply of services by demonstration
32KA. Terms implied in contracts of supply of both services and goods
32KAB. Certain agreements excluded
32L. Contract cannot exclude this Part 32LA. Contract cannot exclude liability for damages
32M. Penalties for including void provisions
32MA. Limitation of liability generally
32N. Limitation of liability in relation to supply of recreational services
32NA. Exemption from waiver form requirement
32NB. Supplier to have reasonable opportunity to make good title
32O. Acceptance of goods
32OA. Rescission for innocent misrepresentation
32P. Discharge or rescission of contract of supply of goods
32PA. When does a discharge or rescission have effect?
32Q. Liability of supplier and person conducting antecedent negotiations
32QA. Indemnity for supplier or dealer
32R. Certain contracts or provisions void
32RA. Penalty for including void provision relating to antecedent negotiations

Division 4-General

32S. Implied terms do not negative express terms unless inconsistent
32SA. Limit of liability of guarantors
32T. Limit of liability under security
32TA. Contract of supply not illegal etc.

PART 2B-UNFAIR TERMS IN CONSUMER CONTRACTS

32U. Definitions
32V. Application of Part 32W. What is an unfair term?
32X. Assessment of unfair terms
32Y. Effect of unfair term
32Z. Offences relating to prescribed unfair terms
32ZA. Injunctions to prevent continued use of unfair terms
32ZB. Director may require the supply of information
32ZC. Declaration by the Tribunal
32ZD. Advisory opinion by the Tribunal

PART 3-SAFETY AND INFORMATION REQUIREMENTS

Division 1-Safety standards

33. Offence to supply goods or services which do not comply
with safety standards
34. Prescribed safety standards
35. Interim ban order
36. Operation of interim ban order
37. Notice of order
38. Offence to contravene interim ban order
39. Permanent ban order or fixed term ban order made after
interim ban order
40. General power to make permanent ban order or fixed term
ban order
41. When does a permanent ban order or a fixed term ban order
take effect?
42. Notice of order
43. Revocation or amendment of permanent ban order or fixed
term ban order
44. Offence to contravene permanent ban order or fixed term ban order
45. Loss, injury or damage arising from a contravention of this Division

Division 2-Information standards

46. Offence to supply goods or services which do not comply with information standards
47. Prescribed information standards
48. Loss, injury or damage arising from a contravention of this Division

Division 3-Recall of goods

49. Notification of voluntary recall
50. Compulsory recall
51. Repair and replacement of goods
52. Circumstances in which a refund may be reduced
53. Compliance with compulsory recall notice
54. Loss, injury or damage arising from contravention of this Division
55. Requirement to notify persons outside Victoria
56. Certain actions not to affect insurance contracts

Division 4-Applications for review

57. Review of ban order or compulsory recall notice

Division 5-Warning notices

58. Warning notice to public

PART 4-OFF-BUSINESS-PREMISES SALES AND OTHER SALES

Division 1-Introductory

59. Application

Division 2-Contact sales agreements

60. What is a contact sales agreement?
61. Requirements for contact sales agreements
62. Supplier must comply with requirements
62A. Duty to obtain prior consent to visit
62B. Duty not to remain on premises for long periods
62C. Duty to leave premises
62D. Duty to produce identification
62E. Duty to inform
63. When can the purchaser cancel the agreement?
64. What is the effect of cancellation?
65. What must the supplier do on cancellation?
66. What can the supplier charge on cancellation?
67. What must the purchaser do on cancellation?

Division 2A-Telephone marketing agreements

67A. What is a telephone marketing agreement?
67B. Duty to cease telephone marketing
67C. Permitted hours for telephone marketing
67D. Purchaser must give explicit informed consent
67E. Requirements for a telephone marketing agreement
67F. Supplier must comply with requirements
67G. When does a telephone marketing agreement commence?
67H. When and how can the purchaser cancel the agreement?
67I. What is the effect of cancellation?
67J. What must the supplier do on cancellation?
67K. What can the supplier charge on cancellation?
67L. What must the purchaser do on cancellation?
67M. What if the telephone marketing agreement is void for lack of explicit informed consent?

Division 3-Non-contact sales agreements

68. What is a non-contact sales agreement?
68A. Duty to cease telephone marketing for non-contact sales agreement
69. Requirements for non-contact sales agreements
70. Supplier must comply with requirements
71. When can the purchaser cancel the agreement?
72. What is the effect of cancellation?
73. What must the supplier do on cancellation?
74. What can the supplier charge on cancellation?
75. What must the purchaser do on cancellation?

Division 4-General

76-78. Repealed
79. Trade-in not to be sold during cooling-off period
80. Prohibition on payment for services during cooling-off period
81. Certain provisions in agreements void
82. Recovery of money

PART 5-LAY-BY SALES

83. Statement of lay-by terms
84. Change of lay-by terms
84A. Lay-by goods must be available
85. Cancellation of lay-by by purchaser
86. Cancellation of lay-by by supplier
87. Cancellation on breach by purchaser
88. Cancellation where business closes
89. Effect of cancellation of lay-by
90. Cancellation charge must not exceed a reasonable amount
91. Limits on supplier's remedies
92. Demands for early payment
93. Effect of contracting out

PART 5A-FAIR REPORTING

93A. Definitions
93B. Correction of errors
93C. Consumer may apply to court where agent fails to correct information etc.
93D. Powers of Court on application

PART 6-CODES OF PRACTICE

94. Preparation of draft code of practice by the Director
95. Consideration of draft code of practice prepared by other
persons
96. Prescribing codes of practice
97. Offence to breach code of practice

PART 7-ADMINISTRATION

98. Director of Consumer Affairs Victoria
99. Staff
100. Functions and powers of the Director
101. Powers of delegation
102. Director's report

PART 8-POWERS OF DIRECTOR

Division 1-Disputes

103. Making a complaint
104. Conciliation and mediation
105. Powers of the Director in relation to proceedings on behalf of consumers
106. Proceedings and costs

Division 2-Suppliers

106A. Substantiation of claims
106B. Show cause notice

Division 3-Licence suspension

106C. Definitions
106D. Director may suspend licence
106E. Effect of suspension
106F. Lapsing or continuation of suspension
106G. Extension of period
106H. Right of review

Division 4-Obtaining information, documents and evidence

106HA. Power to obtain information and documents to monitor compliance
106I. Power to obtain information, documents and evidence
106J. Powers in relation to documents
106K. Copies of seized documents
106L. Retention and return of seized documents
106M. Magistrates' Court may extend 3 month period
106N. Complaints
106O. Service of documents
106P. Confidentiality

PART 9-FUNCTIONS OF TRIBUNAL

107. What is a consumer and trader dispute?
107A. What is a small claim?
108. Settlement of consumer and trader disputes or small claims
109. Additional powers of Tribunal
110. Who can ask the Tribunal to resolve a consumer and trader dispute?
111. Exclusion of other jurisdiction
112. More appropriate forum
112A. Small claim commenced in a court
112B. Small Claims Suspense Account
113. Tribunal may hear dispute regardless of related criminal proceedings
113A. Tribunal may order the provision of information

PART 10-INSPECTION POWERS

114. Appointment of inspectors
115. Inspector's identity card
116. Production of identity card
117. Inspector may seek Court order
118. Requirement to produce information
119. Entry or search with consent
120. Entry of premises open to the public
121. Emergency entry
121A. Entry without consent or warrant
122. Search warrants
123. Announcement before entry
124. Details of warrant to be given to occupier
125. Seizure of things not mentioned in the warrant
126. Embargo notice
126A. Use or seizure of electronic equipment at premises
126B. Monitoring compliance with embargo notices
127. Copies of seized documents
128. Retention and return of seized documents or things
129. Magistrates' Court may extend 3 month period
129A. Court may order destruction of dangerous goods
130. Taking samples
131. Requirement to assist inspector during entry
132. Refusal or failure to comply with requirement
133. Protection against self-incrimination
134. Offence to give false or misleading information
135. Offence to hinder or obstruct inspector
136. Offence to impersonate inspector
137. Entry to be reported to the Director
138. Register of exercise of powers of entry
139. Complaints
140. Service of documents
141. Confidentiality

PART 11-ENFORCEMENT AND REMEDIES

Division 1-General enforcement provisions

142. Prosecutions of offences
142A. Who can bring proceedings for offences?
143. Offences by bodies corporate
144. Conduct by officers, employees or agents

Division 2-Remedies and legal proceedings

145. Interpretation
146. Undertakings
147. Copy of undertaking
148. Register of undertakings
149. Injunctions to restrain conduct
149A. Injunctions to do an act or thing
150. Interim injunctions
151. Power to rescind or vary injunctions
151A. Cease trading injunctions
151B. Interim cease trading injunctions
151C. Power to rescind or vary cease trading injunctions
152. Undertakings as to damages and costs
152A. Powers of court if requirement of Director or inspector not complied with
153. Adverse publicity orders
154. Orders to prohibit payment of money or transfer of other
property
155. Defences
156. Evidence
157. Findings in proceedings to be evidence
158. Orders against persons found to have contravened this Act
159. Actions for damages
160. Awards of compensation

Division 3-Infringement notices

160A. Power to serve a notice
160B. Form of notice
160C-160H Repealed

PART 12-MISCELLANEOUS

161. Supplier to give documents
161A. Bills and receipts
162. Return of replaced parts to purchaser
162A. Public warning statements
163. Consumer documents to be clear
163A. Complaints etc. are privileged
164. Supreme Court-limitation of jurisdiction
165. Regulations

PART 13-REPEALS, SAVINGS AND TRANSITIONAL

166. Repeal of Fair Trading Act 1985.
167. Repeal of Consumer Affairs Act 1972.
168. Repeal of Ministry of Consumer Affairs Act 1973.
169. Repeal of Market Court Act 1978.
170. Savings and transitional provisions
__________________
SCHEDULE 1-Consumer Acts
SCHEDULE 2-Contact Sales Agreements/ Telephone Marketing Agreements

PART 1-NOTICE TO PURCHASER

PART 2-CANCELLATION NOTICE
SCHEDULE 3-Savings and Transitional
1. Superseded references
2. Actions commenced by Director or Secretary
3. Inspectors
4. Regulations
5. Orders
6. Superseded references to Director of Fair Trading and Office
of Fair Trading and Business Affairs
7. Actions commenced by Director
8. Superseded references
9. Actions commenced by Director
10. Validation of ban orders
11. Continuation of existing small claims
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details

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