Consumer Acts and Other Acts
Amendment Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
General
The object of this Bill is to amend a number of Consumer Acts and to amend
the Property Law Act 1958 and the State Trustees (State Owned
Company) Act 1994.
Clause Notes
Part 1—Preliminary
Clause 1
581101
sets out the main purposes of the Bill, which are—

to amend the Australian Consumer Law and Fair
Trading Act 2012 to better align the provisions relating
to enforcement and remedies with the equivalent
provisions of the Australian Consumer Law (Victoria)
and the Competition and Consumer Act 2010 of the
Commonwealth;

to amend the Associations Incorporation Reform
Act 2012 to provide that a committee member of an
incorporated association vacates that office if the
member is disqualified from managing a corporation or
co-operative;

to amend the Residential Tenancies Act 1997 to make
express provision for the service of documents by
electronic communication;

to amend the Retirement Villages Act 1986 to relocate
from the regulations into that Act the formula for the
calculation of the adjusted maintenance charge for a
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BILL LA INTRODUCTION 24/11/2015
financial year for a retirement village, and to make other
amendments to improve the consistency of terminology
used in that Act;
Clause 2

to amend the Sale of Land Act 1962 to apply to
conveyancers the same restrictions that apply to legal
practitioners in relation to acting for both the vendor
and purchaser under a terms contract;

to amend the Property Law Act 1958 to apply to
conveyancers the same conditions that apply to legal
practitioners in relation to the payment by a purchaser
of costs and expenses under a contract for the sale of
land;

to amend the Sex Work Act 1994 to change all
references to a sexually transmitted disease to a
reference to a sexually transmissible infection, and to
provide that action may be taken under that Act against
a person who is not a licensee if the person was a
licensee at the time the grounds for taking the action
existed;

to amend the Second-Hand Dealers and Pawnbrokers
Act 1989 to provide that action may be taken under
that Act against a person who is not a registered
second-hand dealer or an endorsed pawnbroker if the
person was so registered or endorsed at the time the
grounds for taking the action existed;

to amend the State Trustees (State Owned Company)
Act 1994 to remove the requirement for State Trustees
to make a declaration to the Director of Consumer
Affairs Victoria.
provides that the Bill will come into operation on a day or days to
be proclaimed, but if not proclaimed earlier, the provisions of the
Bill will come into operation by default on 30 September 2016.
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Part 2—Amendment of Australian Consumer Law and Fair
Trading Act 2012
Part 2 contains clauses 3 to 22, which set out the amendments to the
Australian Consumer Law and Fair Trading Act 2012 (referred to as
"the Act" under this Part).
Clause 3
Clause 4
inserts new section 126(2A) in the Act which provides that the
Director may exercise, or continue to exercise, a power to obtain
information, documents or evidence under section 126(1) in
relation to a matter referred to in that section until—

the Director commences a proceeding in relation to the
matter (other than a proceeding for an injunction,
whether interim or final); or

the close of pleadings in relation to an application by the
Director for a final injunction in relation to the matter.
amends section 149 of the Act which relates to entry and search
of premises by an inspector with consent.
Subclause (1) substitutes a new section 149(2)(c). New section
149(2)(c) omits the requirement that an inspector first believe on
reasonable grounds that a document is connected with the alleged
contravention before requiring its production and substituting the
ability for an inspector to require any document kept on the
premises to be produced for examination.
If the inspector believes on reasonable grounds the document is
connected with an alleged contravention, the inspector is
authorised to examine, make copies, or take extracts from the
document, or arrange for the making of copies or the taking of
extracts or remove the document for so long as is reasonably
necessary to take any of those actions.
Subclause (2) amends section 149(3) to insert the term
"audio recording" into section 149(3) to allow an inspector
to make an audio only recording, in addition to a still or moving
image or audio-visual recording, if the inspector believes on
reasonable grounds it is necessary to do so for the purpose of
establishing an alleged contravention.
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Clause 5
inserts new section 150(b)(iiia) in the Act which provides that, in
giving notice to an occupier for an entry and search, the inspector
must inform the occupier that the occupier may refuse to produce
any document required to be produced for examination.
Clause 6
inserts new section 152(2)(a)(iiia) in the Act which provides that
an acknowledgement of consent to entry and search for the
purposes of section 151 must include a statement that the
occupier may refuse to produce any document required to be
produced for examination.
Clause 7
inserts the term "audio recording" into section 154(2)(b) of the
Act to allow an inspector to make an audio only recording, in
addition to a still or moving image or audio-visual recording, if it
is necessary to do so and the inspector believes on reasonable
grounds that certain goods found on premises present a threat of
imminent injury.
Clause 8
inserts the term "audio recording" into section 155(2)(f) of the
Act to allow an inspector to make any audio recording, in
addition to a still or moving image or audio-visual image, during
an entry and search without consent or warrant.
Clause 9
amends section 157 of the Act which relates to search warrants.
Subclause (1) substitutes section 157(1) to allow an inspector to
apply to a magistrate for the issue of a search warrant in relation
to particular premises if the inspector believes on reasonable
grounds that—

there is, or may be within the next 72 hours, on the
premises evidence that a person may have contravened
the Act or its regulations; or

there is evidence in digital or electronic format that a
person may have contravened the Act or its regulations
which is accessible from the premises.
Subclause (2) repeals section 157(2). The repeal removes the
requirement for an application by an inspector to a magistrate
under section 157(1) to have written approval from the Director.
This amendment is made to address significant delays in
obtaining a warrant due to difficulties in accessing the Director
to obtain their consent.
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Subclause (3) substitutes a new section 157(3) to provide that a
magistrate may issue a search warrant if satisfied by the
evidence, on oath or by affidavit, that there are reasonable
grounds to believe that—

there is, or may be within the next 72 hours, on the
premises a thing, or thing of a particular kind, connected
with a contravention of the Act or its regulations; or

there is information in digital or electronic format
connected with a contravention of the Act or its
regulations that is accessible from the premises.
Clause 10 amends section 158 of the Act which relates to the form and
content of search warrants.
Subclause (1) inserts in section 158(1) the following additional
actions that are authorised to be taken by an inspector under a
search warrant issued under section 157(3)—

new section 158(1)(ba) provides that an inspector may
enter premises and make an image of a hard drive of a
computer, or a computer of a particular kind, named or
described in the warrant, if the inspector believes on
reasonable grounds that information contained on the
hard drive is connected with the alleged contravention;

new section 158(1)(bb) provides that in the case of
information in electronic or digital format described in
the warrant that is accessible from the premises, if the
inspector believes on reasonable grounds that the
information is connected with the alleged contravention,
access the information via any computer or other
electronic device located on the premises; download or
make an electronic copy of that information; and make
or produce a physical copy of that information.
Subclause (2) amends section 158(1)(c) to provide that a search
warrant may authorise the inspector named in the warrant to
make any "audio recording", in addition to a still or moving
image or audio-visual recording when entering premises
specified in the warrant.
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Clause 11 inserts new section 158A in the Act which provides that a search
warrant issued under section 157(3) may authorise the giving of a
direction requiring assistance from a person with knowledge of a
computer or other electronic device.
Subclause (1) provides that new section 158A applies if a
magistrate is satisfied by evidence, on oath or by affidavit, that
there are reasonable grounds to believe that there is information
in digital or electronic format connected with a contravention of
the Act or its regulations that is accessible from particular
premises.
Subclause (2) provides that a warrant issued under section 157(3)
may authorise the inspector named in the warrant to require a
person to provide any information or assistance that is reasonable
and necessary to allow the inspector or another person to do one
or more of the following things—

access information held in, or accessible from, any
computer or other electronic device located on the
premises;

download or make an electronic copy of that
information;

make or produce a physical copy of that information.
Subclause (3) limits the application of the direction to certain
persons. The inspector may require a person, who has the
relevant knowledge regarding the computer or electronic device
or the computer network of which the computer or device forms a
part, to provide the information or assistance referred to in
subclause (2) if the person is one of the following—

the person alleged to have contravened the Act or its
regulations;

the owner or lessee of the computer or other electronic
device;

an employee of the owner or lessee of the computer or
electronic device;

a person engaged under a contract for services by the
owner or lessee of the computer or electronic device.
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Clause 12 inserts new section 170(3) in the Act which provides that despite
the protection against self-incrimination provided under
section 170(1), it is not a reasonable excuse for a natural person
to refuse or fail to provide information or assistance that a person
is required by new section 158A to give under a search warrant,
if the provision of the information or assistance would tend to
incriminate the person.
Clause 13 relates to undertakings given to the Director by a person in
connection with the Act.
Subclause (1) repeals section 198(3) and 198(4) which relate to
an application for an order directing the person who gave the
undertaking to comply with the undertaking.
Subclauses (2) and (3) substitute references in section 198(5),
198(6) and 198(7), to the "Magistrates' Court" for "the court".
Clause 14 substitutes sections 201 to 207 of the Act, relating to injunctions
powers, with new provisions modelled upon sections 232 to 235
of the Australian Consumer Law (Victoria).
New section 201(1) provides that a court may grant an injunction
if the court is satisfied that a person has engaged in, or is
proposing to engage in, conduct that includes, amongst other
things, conduct that constitutes or would constitute—

a contravention of a provision of the Act;

attempting to contravene such a provision;

aiding, abetting, counselling or procuring a person to
contravene such a provision;

inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene a
provision;

being in any way directly or indirectly, knowingly
concerned in, or party to, the contravention by a person
of such a provision; or

conspiring with others to contravene such a provision.
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New section 201(5) authorises the Supreme Court to grant an
injunction to restrain a person from carrying on a business or
supplying goods or services (whether or not as part of, or
incidental to, the carrying on of another business) for a specified
period or except on specified terms and conditions.
New section 201(6) allows a court to grant an injunction
requiring a person to do any of the following—

institute a training program for the person's employees
in relation to compliance with the Act;

refund money;

transfer property;

disclose information about the person's business
activities or business associates;

honour a promise;

destroy or dispose of goods.
New section 202 allows a court to grant an injunction by consent
of all the parties to the relevant proceeding, whether or not the
court is satisfied as required by section 201.
New section 203 allows a court to grant an interim injunction
pending the determination an application if it considers that it is
desirable to do so.
New section 204 provides that a court may vary or discharge a
grant of an injunction or interim injunction.
Clause 15 amends section 208 of the Act which provides for undertakings
as to damages and costs. References to substituted provisions
which have been consolidated into new section 201 have been
removed. References to the Minister are omitted. References to
the "applicant" are substituted with "the Director".
Clause 16 inserts new section 210A into the Act which provides additional
options to a court in making non-punitive orders for conduct that
contravenes Part 3.1, 4.1 or 6.3 of the Act.
New section 201A(1) provides that on the application of the
Director, a court may make one or more of the orders specified in
new subsection 210A(3) in relation to a person if the court is
satisfied that the person has contravened or has been involved in
a contravention of Part 3.1, 4.1 or Part 6.3 of the Act.
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New section 210A(2) provides that a court may make an
order under section 210A in addition to an order made under
section 210.
New section 210A(3) ) provides that for the purposes of
section 210A(1), a court may make the following orders—

an order directing the person to perform a specified
service, that relates to the conduct contravening the Act,
for the benefit of the community or a section of the
community;

an order for the purpose of ensuring that the person does
not engage in the conduct, similar conduct or related
conduct during the period of the order (no longer than
3 years) including an order to establish a compliance
program, an order to establish an education and training
program and an order directing the person to revise
internal business operations.
Clause 17 amends section 212(8)(b)(i) of the Act to remove references to
sections which have been consolidated into new section 201.
Clause 18 amends section 215(1) of the Act to realign references to new
sections 201, 210, 210A and 211.
Clause 19 amends section 216 of the Act to clarify the operation of that
provision. Subclause (1) omits reference to "the accused" in
section 216(1)(a).
Subclause (2) substitutes references in section 216(2) to
"accused" for "person against whom proceedings were brought".
Subclause (3) omits reference to "against an accused".
Reference to section 203, which is consolidated in new
section 201, has been removed.
Clause 20 inserts new section 216A in the Act in relation to the making of a
declaration under the Act.
New section 216A(1) provides that a person may commence a
proceeding in a court seeking, in relating to a matter arising
under the Act, the making of—

a declaration in relation to the operation or effect of any
provision of the Act; or
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
a declaration in relation to the validity of any act or
thing done, proposed to be done or purporting to have
been done under the Act.
Subclause (2) allows the Director to commence proceedings
seeking a declaration in relation to the operation or effect of any
provision of the Act.
Clause 21 amends section 230 of the Act to remove reference to
sections 202 and 205 which have been consolidated into new
section 201 to be inserted by clause 14.
Clause 22 amends Schedule 1 to the Act to omit reference to the repealed
Business Names Act 1962.
Part 3—Amendment of other Acts
Division 1—Associations Incorporation Reform Act 2012
Clause 23 inserts new sections 78(2)(c)(iv) to 78(2)(c)(vi) into the
Associations Incorporation Reform Act 2012 which add a
number of additional circumstances where a member of a
committee is taken to have vacated their office, being where the
member of the committee is disqualified from managing—

corporations under Part 2D.6 of the Corporations Act of
the Commonwealth;

Aboriginal and Torres Strait Islander corporations under
Part 6-5 of the Corporations (Aboriginal and Torres
Strait Islander) Act 2006 of the Commonwealth;

co-operatives under Division 2 of Part 3.1 of the
Co-operatives National Law (Victoria).
Division 2—Residential Tenancies Act 1997
Clause 24 inserts new sections 506(1)(da) and 506(3)(ba) into the
Residential Tenancies Act 1997 which provide that a notice or
other document to be served on or given to a person or landlord
under the Act may also be given by electronic communication in
accordance with the Electronic Transactions (Victoria)
Act 2000.
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Clause 25 substitutes references to the repealed "Fair Trading Act 1999"
for references to the "Australian Consumer Law and Fair
Trading Act 2012" in sections 209(2), 399A(2) and 510B of the
Residential Tenancies Act 1997.
Clause 26 substitutes references throughout the Residential Tenancies
Act 1997 to "municipal council" for "Council".
Division 3—Retirement Villages Act 1986
Clause 27 amends section 3(1) of the Retirement Villages Act 1986 to
substitute a reference to "residential, hostel" for "residential
hostel".
Clause 28 amends section 36 of the Retirement Villages Act 1986.
Subclause (1) substitutes "meeting of the residents" for the
expression "meeting of residents" in section 36(3).
Subclause (2) substitutes "meeting of the residents" for the
expression "meeting of all the residents living at the retirement
village" in section 36(6).
Clause 29 substitutes "meeting of the residents" for the expression
"meeting of residents" in section 37(4) of the Retirement
Villages Act 1986.
Clause 30 amends section 38 of the Retirement Villages Act 1986.
Subclause (1) substitutes "the regulations" for "section 38AA",
in section 38(1) in the definition of adjusted maintenance
charge.
Subclause (2) substitutes "meeting of the residents" for the
expression "residents meeting", in section 38(6)(b)(ii).
Clause 31 inserts new section 38AA in the Retirement Villages Act 1986
to represent the formula previously set out in regulation 8A
of the Retirement Villages (Contractual Arrangements)
Regulations 2006.
The definitions of elements B and C of the formula in new
section 38AA(2) are amended from regulation 8A to reflect
current Department of Treasury and Finance practice in the
expression of the consumer price index.
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Clause 32 substitutes "a non-owner resident of the village" for the
expression "a resident of the village" in section 38B(3) of the
Retirement Villages Act 1986.
Clause 33 amends the heading to section 38I of the Retirement Villages
Act 1986 to substitute "former residents" for the reference to
"owner residents".
Division 4—Sale of Land Act 1962 and Property Law Act 1958
Clause 34 amends the heading to Subdivision 5 of Division 4 of Part I of the
Sale of Land Act 1962 to insert "and conveyancers" after "legal
practitioners".
Clause 35 amends section 29W of the Sale of Land Act 1962 and the title
to section 29W to insert "or conveyancer" after each reference to
"legal practitioner".
Clause 36 amends section 42 of the Property Law Act 1958.
Subclause (1) inserts "or conveyancer" after "legal practitioner"
in section 42(3).
Subclause (2) inserts new section 36(7) which defines the term
"conveyancer" to mean "a licensee under the Conveyancers
Act 2006".
Division 5—Sex Work Act 1994
Clause 37 amends the Sex Work Act 1994 to repeal the definition of
sexually transmitted disease in section 3(1). A new definition
of sexually transmissible infection is inserted, meaning a
"disease or condition prescribed by the regulations to be a
sexually transmissible infection".
Clause 38 substitutes the term "sexually transmissible infections" for each
reference to "sexually transmitted diseases" in sections 18A(1)
and 18A(2) of the Sex Work Act 1994.
Clause 39 amends section 19 of the Sex Work Act 1994. Subclause (1)
amends the title of section 19 to reflect the use of the new term
"sexually transmissible infection".
Subclause (2) substitutes, in sections 19(1) and 19(2), references
to "sexually transmitted diseases" for "sexually transmissible
infections".
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Subclause (3) amends section 19(2) to provide that the time
periods for the purposes of regular swab tests are to be
determined under new section 20A.
Subclause (4) consequentially repeals section 19(3) regarding the
meaning of "Health Minister" due to omission of that term from
section 19(2).
Clause 40 amends section 20 of the Sex Work Act 1994. Subclause (1)
amends the title of section 20 to reflect the use of the new term
"sexually transmissible infection".
Subclause (2) substitutes the expression "sexually transmissible
infection" for "sexually transmitted disease" in sections 20(1)
and 20(2).
Subclause (3) amends section 20(2)(a)(ii) to provide that the time
periods for the purposes of regular swab tests are to be
determined by order of the Health Minister published in the
Government Gazette under new section 20A.
Subclause (4) consequentially repeals section 20(3) regarding the
meaning of "Health Minister" due to omission of that term from
section 20(2).
Clause 41 inserts new section 20A in the Sex Work Act 1994.
New section 20A provides for determination of time periods
for sex worker swab testing under the Act.
New section 20A(1) provides that the Health Minister may
determine the time periods at which swab tests must be taken by
a sex worker under sections 19(2)(a)(ii) and 20(2)(a)(ii) by Order
published in the Government Gazette.
New section 20A(2) defines Health Minister as the person for
the time being administering section 15 of the Public Health and
Wellbeing Act 2008.
Clause 42 inserts new section 48A(8) in the Sex Work Act 1994 to expand
the disciplinary powers of the Victorian Civil and Administrative
Tribunal to allow action to be taken against a person who was
licensed under the Act at the time of the relevant contravention
but has since surrendered the licence.
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New section 48A(8) provides that a reference to a licensee in that
section includes a reference to any person who was a licensee at
the time any ground referred to in section 48(3) existed or was
alleged to exist, even if the person is not a licensee at the time
any action is taken under the section.
Clause 43 substitutes references to "Citizenship" in sections 25(d),
26(c) and 67(1A)(d) of the Sex Work Act 1994 for
"Border Protection" to reflect the change in the name of the
relevant Commonwealth Government Department.
Division 6—Second-Hand Dealers and Pawnbrokers Act 1989
Clause 44 amends the Second-Hand Dealers and Pawnbrokers Act 1989
to insert new section 18B(7) which allows the Victorian Civil
and Administrative Tribunal to exercise relevant disciplinary
powers under sections 18A and 18B in respect of a registered
second-hand dealer or endorsed pawnbroker who was registered
or endorsed at the time of a contravention of the Act but who
may subsequently have ceased to be so registered or endorsed.
Division 7—State Trustees (State Owned Company) Act 1994
Clause 45 amends the State Trustees (State Owned Company) Act 1994
to insert new section 20A(3) which provides that, despite
section 20A(1), section 52 of the Trustee Companies Act 1984,
as in force immediately before the commencement of the Trustee
Companies Legislation Amendment Act 2010, does not apply
in respect of State Trustees.
Part 4—Repeal
Clause 46 provides that the Bill is repealed on 30 September 2017.
The repeal does not affect the continuing operation of the
amendments made by the Bill (see section 15(1) of the
Interpretation of Legislation Act 1984).
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