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Fire Services Levy Monitor Act 2012 No. 81 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 13 Definitions 2

PART 2—THE FIRE SERVICES LEVY MONITOR 6

4 Establishment of office of the Fire Services Levy Monitor 65 Independence of the Monitor 66 Functions of the Monitor 77 Powers of the Monitor 98 Appointment of Fire Services Levy Monitor 99 Appointment of Deputy Fire Services Monitor 1010 Cessation of office 1111 Removal from office 1112 Effect of vacancy in office of the Monitor 1213 Power of delegation 1214 Staff 1315 Consultants 1316 Immunity 1317 Secrecy 14

PART 3—MONITORING POWERS 16

18 Power to obtain information and documents to monitor compliance 16

19 Power to obtain information, documents and evidence 1720 Powers in relation to documents 1921 Copies of seized documents 2022 Retention and return of seized documents 2023 Magistrates' Court may extend 3 month period 2024 Service of documents 2125 Information sharing 22

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PART 4—PRICE EXPLOITATION AND FALSE, MISLEADING AND DECEPTIVE PRACTICES 25

Division 1—Price exploitation 25

26 Price exploitation in relation to the fire services levy reform 2527 Price exploitation guidelines 2628 Monitor may issue notice to insurance company for a

contravention of section 26 2629 Monitor may give notice to aid prevention of price

exploitation 2730 Monitor may monitor prices 28

Division 2—Prohibited conduct 29

31 Prohibition on conduct falsely representing or misleading or deceiving 29

Division 3—Pecuniary penalties 29

32 Pecuniary penalty for contravention of penalty provision 2933 Defence to proceedings under section 32 relating to a

contravention of section 31 3134 What happens if substantially the same conduct is a

contravention of section 31 and is an offence? 3235 Conduct contravening more than one pecuniary penalty

provision 3336 Civil evidence and procedure rules for pecuniary penalty

order 3437 Evidence given in civil proceedings not admissible in

criminal proceedings 3438 State of mind 3439 Pecuniary penalty to be paid into Consolidated Fund 35

PART 5—CODES OF PRACTICE 36

40 Preparation of draft code of practice by the Monitor 3641 Consideration of draft code of practice 3642 Prescribing codes of practice 3643 Offence to breach code of practice 37

PART 6—FIRE SERVICE LEVY DISPUTES 38

44 Making a fire services levy dispute complaint 3845 Conciliation and mediation 3846 Powers of the Director in relation to certain proceedings 3947 Proceedings and costs 39

PART 7—INSPECTION POWERS 42

Division 1—Inspectors 42

48 Appointment of inspectors 4249 Inspector's identification 4250 Production of identification 42

Division 2—Requirements to produce information 43

51 Inspector may seek court order 4352 Inspection of documents under court order 4353 Notification of execution of court order 44

Division 3—Entry and search of premises with consent 45

54 Entry and search with consent 4555 Notice before entry and search 4656 Acknowledgement of consent to entry and search 46

Division 4—Entry and search of premises with warrant 48

57 Search warrants 4858 Form and content of search warrants 4859 Announcement before entry 5060 Details of warrant to be given to occupier 5061 Seizure of things not mentioned in the warrant 51

Division 5—Documents 51

62 Copies of seized documents 5163 Retention and return of seized documents or things 5264 Magistrates' Court may extend 3 month period 52

Division 6—Offences 53

65 Refusal or failure to comply with requirement 5366 Protection against self-incrimination 5467 Offence to give false or misleading information 5468 Offence to hinder or obstruct inspector 5569 Offence to impersonate inspector 55

Division 7—Miscellaneous 55

70 Entry to be reported to the Monitor 5571 Requirement to assist inspector during entry 5572 Register of exercise of powers of entry 5673 Complaints 5674 Service of documents 5675 Confidentiality 57

PART 8—REMEDIES AND LEGAL PROCEEDINGS 58

Division 1—Substantiation notices 58

76 Monitor may require claim to be substantiated 5877 Extending period for complying with substantiation notice 6078 Compliance with a substantiation notice 6179 False or misleading information 61

Division 2—Compensation orders 62

80 Compensation order on application of injured person or the Monitor 62

81 Order to redress loss or damage suffered by non-party consumers 63

82 Determining whether to make an order under section 81(1) 6483 When is a non-party consumer bound by an order under

section 81 6584 What kinds of orders can be made? 6585 Power of court to make orders 6786 Interaction with Divisions 1 and 3 67

Division 3—General 67

87 Prosecutions of offences 6788 Who can bring proceedings for offences? 6789 Contraventions by bodies corporate 6890 Conduct by officers, employees or agents 6891 Interpretation 7192 Undertakings 7193 Copy of undertaking 7294 Register of undertakings 7395 Injunctions to restrain conduct 7396 Injunctions to do an act or thing 7497 Interim injunctions 7698 Power to rescind or vary injunctions 7799 Undertakings as to costs 77100 Powers of court if requirement of Monitor or inspector not

complied with 77101 Non-punitive orders—Corrective advertising orders 78102 Punitive orders—Adverse publicity orders 79103 Defences 80104 Findings in proceedings to be evidence 81105 Orders against persons found to have contravened this Act 82106 Public warning statements 83107 Complaints and evidence are privileged 84

PART 9—GENERAL 85

108 When is a person not liable? 85109 Power to make request to the Essential Services Commission 85110 Report 86111 Regulations 87112 Amendment of the Australian Consumer Law and Fair

Trading Act 2012 88113 Amendment of the Essential Services Commission Act 2001 88114 Amendment of the Fire Services Property Levy Act 2012 89115 Amendment of Public Administration Act 2004 89116 Transitional provisions 89

Division 6—Fire Services Levy Monitor Act 2012 89

137A Director to succeed Fire Services Levy Monitor 89117 Sunset 90

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ENDNOTES 91

Fire Services Levy Monitor Act 2012†

No. 81 of 2012

[Assented to 18 December 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The purpose of this Act is to provide for the establishment, functions and powers of the Fire Services Levy Monitor.

2 Commencement

(1) This Act, other than sections 113(2) and 115(2), comes into operation on the day after the day on which this Act receives the Royal Assent.

Victoria

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(2) Sections 113(2) and 115(2) come into operation on 30 December 2014.

3 Definitions

In this Act—

Director has the same meaning as it has in section 3(1) of the Australian Consumer Law and Fair Trading Act 2012;

Essential Services Commission means the Essential Services Commission established under the Essential Services Commission Act 2001;

fire services levy means an amount included in the premium payable for a policy of insurance against fire for the purpose of recouping contributions required to be paid by an insurance company under section 37(1)(c) of the Metropolitan Fire Brigades Act 1958 or section 76(1)(b) of the Country Fire Authority Act 1958, whether or not the amount is disclosed as a separate item;

fire services levy dispute means any dispute between an insurance company and the holder of a policy for insurance against fire involving a claim that the insurance company has engaged in—

(a) price exploitation as a result of the abolition of the fire services levy; or

(b) prohibited conduct in relation to the effect of the abolition of the fire services levy;

fire services levy reform means the abolition of the fire services levy by the Fire Services Property Levy Act 2012;

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s. 3

fire services property levy means the levy amount calculated in accordance with Part 2 of the Fire Services Property Levy Act 2012;

insurance against fire means insurance against the risk of fire or the risk of loss of profits consequent on fire whether the insurance is associated with insurance against any other risk or not;

insurance company means—

(a) a person (including a body corporate or unincorporate, a partnership or an underwriter) who, in Victoria, issues, or undertakes liability under, policies of insurance against fire in respect of property in Victoria; or

(b) a Lloyd's underwriter who—

(i) issues, or undertakes liability under, policies of insurance against fire in respect of property in Victoria; and

(ii) is a member of the Australian Fire Brigades Charges Scheme and makes payments to the Fund established under that Scheme;

insurance premium means any premium received by or due to an insurance company for insurance against fire including any base premium, fire services levy, GST or stamp duty;

Lloyd's means the society of that name incorporated by the Act of the United Kingdom known as Lloyd's Act 1871;

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s. 3

Lloyd's underwriter means an underwriter member of Lloyd's;

Monitor means the Fire Services Levy Monitor appointed under section 8 and includes the Deputy Fire Services Levy Monitor while acting as the Fire Services Levy Monitor;

non-party consumer means a person who is not, or has not been, a party to a proceeding—

(a) in relation to a contravention of a penalty provision; or

(b) instituted under Part 8, other than section 80 or 81;

pecuniary penalty order means an order under section 32 for the payment of a pecuniary penalty;

penalty provision means section 26 or 31;

prescribed means prescribed by regulations made under this Act;

price in relation to the supply of a regulated contract of insurance includes—

(a) a charge of any description for the supply; and

(b) any pecuniary or other benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply;

price exploitation has the meaning given by section 26;

prohibited conduct means the conduct prohibited by section 31;

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s. 3

regulated contract of insurance means—

(a) a policy of insurance against fire; or

(b) a combined or comprehensive policy of insurance which includes insurance against fire—

issued by an insurance company whether before, on or after the commencement of this Act;

substantiation notice means a notice given under section 76;

trade or commerce has the same meaning as it has in the Australian Consumer Law (Victoria);

Victorian Consumer Law Fund means the trust account required to be kept under section 134(1) of the Australian Consumer Law and Fair Trading Act 2012.

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s. 3

PART 2—THE FIRE SERVICES LEVY MONITOR

4 Establishment of office of the Fire Services Levy Monitor

(1) There is to be an office of the Fire Services Levy Monitor.

(2) The Monitor is the public service body Head of the office of the Fire Services Levy Monitor for the purposes of section 16 of the Public Administration Act 2004.

5 Independence of the Monitor

(1) Subject to this Act and other laws of the State, the Monitor has complete discretion in the performance or exercise of his or her functions and powers.

(2) In particular, and without limiting subsection (1), but subject to subsection (3), the Monitor is not subject to the direction or control of the Minister in respect of the performance or exercise by the Monitor of his or her functions and powers in respect of a specific matter or complaint.

(3) The Minister may issue a general direction in writing to the Monitor in respect of the performance by the Monitor of his or her functions under this Act.

(4) A general direction issued under subsection (3) must as soon as practicable after it is given to the Monitor be published in the Government Gazette.

(5) The Monitor must comply with a general direction given under subsection (3).

s. 4Part 6—Fire Service Levy Disputes

Fire Services Levy Monitor Act 2012No. 81 of 2012

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6 Functions of the Monitor

(1) The functions of the Monitor are to—

(a) provide information, advice and guidance in relation to fire services levy reform;

(b) monitor insurance premiums for insurance against fire received by, or owing to, an insurance company, including any base premium, fire services levy, GST or stamp duty;

(c) monitor the compliance of the insurance industry with the prohibition on price exploitation, and investigate and take enforcement action;

(d) monitor compliance with the prohibition on false, misleading or deceptive conduct in respect of the effect or likely effect of fire services levy reform;

(e) refer complaints to the—

(i) Australian Securities and Investments Commission;

(ii) Australian Prudential Regulatory Authority;

(iii) Financial Ombudsman Service;

(f) promote effective dispute resolution mechanisms in relation to disputes arising out of fire services levy reform;

(g) be responsible for the administration of this Act;

(h) perform any other functions conferred on the Monitor by or under this Act or any other Act.



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(2) Without limiting the generality of subsection (1), the Monitor has the following functions—

(a) to advise persons of their rights and obligations under this Act and the Fire Services Property Levy Act 2012;

(b) to receive complaints from persons and to deal with them in accordance with this Act, including referring any complaint to any other appropriate person;

(c) to monitor compliance with this Act and the Fire Services Property Levy Act 2012;

(d) to prepare and publish guidelines in relation to the operation and enforcement of this Act;

(e) to investigate breaches of this Act;

(f) to prosecute breaches of this Act;

(g) to institute and defend proceedings and take any other action that may be necessary to achieve compliance with the requirements of this Act;

(h) to encourage the preparation and use of codes of practice for guidance in safeguarding and promoting the interests of purchasers of regulated contracts of insurance;

(i) to endorse a code of practice prepared by an insurance company or a class of insurance companies in respect of the supply of regulated contracts of insurance to purchasers of insurance or a class of purchasers of insurance;

(j) to prepare codes of practice safeguarding and promoting the interests of purchasers of regulated contracts of insurance and submit those codes of practice to the Minister for inclusion in regulations made under this Act;



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(k) in respect of matters arising out of the administration of this Act or the Fire Services Property Levy Act 2012—

(i) to investigate those matters; and

(ii) to conduct research; and

(iii) to collect and collate information;

(l) to report to the Minister on any matter in relation to the administration of this Act or the Fire Services Property Levy Act 2012 which the Monitor has investigated, either on his or her own motion or at the request of the Minister.

7 Powers of the Monitor

(1) The Monitor has all the powers necessary to perform his or her functions.

(2) Without limiting subsection (1), the Monitor may seek advice and information on any matter from any person or body or source in performing the functions of the Monitor.

8 Appointment of Fire Services Levy Monitor

(1) The Minister may appoint a person as the Fire Services Levy Monitor.

(2) The Monitor is entitled to be paid the remuneration and allowances that are determined by the Minister.

(3) The Monitor holds office—

(a) for a period specified in his or her instrument of appointment that ends on 31 December 2014;

(b) on the terms and conditions determined by the Minister.



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(4) The Fire Services Levy Monitor is, in respect of that office, not subject to the Public Administration Act 2004.

9 Appointment of Deputy Fire Services Monitor

(1) The Minister may appoint a person as the Deputy Fire Services Levy Monitor.

(2) The Deputy Fire Services Levy Monitor is entitled to be paid the remuneration and allowances that are determined by the Minister.

(3) The Deputy Fire Services Levy Monitor holds office—

(a) for a period specified in his or her instrument of appointment that ends on 31 December 2014;

(b) on the terms and conditions determined by the Minister.

(4) The Deputy Fire Services Levy Monitor is, in respect of that office, not subject to the Public Administration Act 2004.

(5) The Deputy Fire Services Levy Monitor has the functions and powers which are delegated to him or her under section 13 by the Fire Services Levy Monitor.

(6) The Deputy Fire Services Levy Monitor is to act as the Fire Services Levy Monitor if—

(a) the office of the Fire Services Levy Monitor is vacant; or

(b) the Fire Services Levy Monitor is absent; or

(c) the Fire Services Levy Monitor is for any other reason unable to perform the duties of the office.



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(7) While acting as the Fire Services Levy Monitor, the Deputy Fire Services Levy Monitor has, and may exercise all the powers, and must perform all the functions of the Fire Services Levy Monitor.

10 Cessation of office

The Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor ceases to hold office if he or she—

(a) resigns by notice in writing given to the Minister; or

(b) becomes an insolvent under administration; or

(c) becomes a represented person within the meaning of the Guardianship and Administration Act 1986; or

(d) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(e) nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; or

(f) is removed from office under section 11.

11 Removal from office

(1) The Minister may remove the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor from office on any of the following grounds—

(a) misconduct;

(b) neglect of duty;

(c) inability to perform the duties of the office;



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(d) any other ground on which the Minister is satisfied that the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor is unfit to hold office.

(2) The Minister must cause to be laid before each House of Parliament a full statement of the grounds of removal of the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor within 7 sitting days of that House after the removal.

12 Effect of vacancy in office of the Monitor

A vacancy in the office of the Monitor does not affect the validity or continuity of any act, decision or proceeding made or commenced by the Monitor.

13 Power of delegation

(1) The Monitor by instrument may delegate any function or power of the Monitor under this Act other than this power of delegation to—

(a) the Deputy Fire Services Levy Monitor;

(b) any person employed under Part 3 of the Public Administration Act 2004.

(2) The Monitor by instrument may delegate to the Director any function or power of the Monitor under this Act including, subject to subsection (3), this power of delegation.

(3) The Director may, subject to and in accordance with the instrument of delegation under subsection (2), by instrument delegate to any person employed under Part 3 of the Public Administration Act 2004 any function or power delegated to the Director, other than this power of delegation.



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(4) Sections 42 and 42A of the Interpretation of Legislation Act 1984 apply to a sub-delegation under subsection (3) as if it were a delegation.

14 Staff

(1) Any employees that are necessary for the purposes of this Act may be employed under Part 3 of the Public Administration Act 2004.

(2) The Monitor may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.

15 Consultants

(1) The Monitor may engage persons with suitable qualifications and experience as consultants.

(2) Without limiting the generality of subsection (1), the Monitor may appoint an Australian legal practitioner to assist the Monitor as counsel, either generally or in reference to a particular matter.

(3) An engagement under this section may be on any terms and conditions the Monitor considers appropriate.

16 Immunity

(1) A person who is the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor is not personally liable for anything done or omitted to be done in good faith—

(a) in the performance of a function or the exercise of a power under this Act; or

(b) in the reasonable belief that the act or omission was in the performance of a function or the exercise of a power under this Act.



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(2) Any liability resulting from an act or omission that would but for subsection (1) attach to a person who is the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor attaches instead to the Crown.

17 Secrecy

(1) This section applies to every person who is or has been—

(a) the Fire Services Levy Monitor; or

(b) the Deputy Fire Services Levy Monitor; or

(c) the Director; or

(d) a person employed under section 14; or

(e) a person engaged under section 15; or

(f) any other person to whom a function or power has been delegated under section 13.

(2) A person to whom this section applies must not, either directly or indirectly, make a record of, or disclose or communicate to any person, any information concerning the affairs of any person acquired by reason of—

(a) the office, employment or engagement under, or for the purposes of, this Act; or

(b) performing any function or exercising any power delegated to the person under this Act.

Penalty: 5 penalty units.

(3) Despite subsection (2), a person to whom this section applies may—

(a) make a record of, or disclose or communicate any information referred to in that subsection—

(i) in any legal proceedings under this Act; or



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(ii) in the performance of a function or the exercise of a power under or in connection with this Act;

(b) divulge or communicate any information referred to in that subsection to—

(i) the Minister; or

(ii) the Director; or

(iii) the Essential Services Commission; or

(iv) the Commissioner of State Revenue under the Taxation Administration Act 1997; or

(v) a court; or

(vi) the Australian Securities and Investments Commission; or

(vii) the Australian Prudential Regulatory Authority; or

(viii) the Financial Ombudsman Service; or

(ix) a prescribed person who is, or a prescribed body which is, performing a duty under or in connection with any Act; or

(x) with the consent of the person to whom the information relates, any other person.

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PART 3—MONITORING POWERS

18 Power to obtain information and documents to monitor compliance

(1) The Monitor may, by notice in writing, require a person who the Monitor believes is capable of providing information or producing documents that may assist the Monitor in monitoring compliance with this Act and the Fire Services Property Levy Act 2012—

(a) to provide to the Monitor, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or

(b) to produce to the Monitor, or to a person specified in the notice acting on the Monitor's behalf, in accordance with the notice, those documents; or

(c) to appear before the Monitor at a time and place specified in the notice to give that information, either orally or in writing, and produce those documents.

(2) A person must not—

(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or

(b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or



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(c) obstruct or hinder the Monitor in exercising a power under this section.

Penalty: 20 penalty units, in the case of a natural person;

100 penalty units, in the case of a body corporate.

(3) Subject to subsection (4), a natural person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the natural person.

(4) Despite subsection (3), the answer by a person to any question asked in a notice under this section or the provision by a person of any information or the production by any person of a document in compliance with a notice under this section is not admissible in evidence against the person in any proceedings other than proceedings under this section.

(5) If any documents are produced to the Monitor under this section, the Monitor may make copies of or take extracts from the documents and retain possession of those copies and extracts.

(6) Section 20 does not apply to documents produced under this section.

19 Power to obtain information, documents and evidence

(1) If the Monitor believes that a person is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, the Monitor may, by notice in writing, require that person—



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(a) to provide to the Monitor, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or

(b) to produce to the Monitor, or to a person specified in the notice acting on the Monitor's behalf, in accordance with the notice, those documents; or

(c) to appear before the Monitor, or a person specified in the notice acting on the Monitor's behalf, at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents.

(2) The Monitor or the person specified in the notice acting on the Monitor's behalf may require the evidence referred to in subsection (1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.


(a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or

(b) in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or

(c) obstruct or hinder the Monitor in exercising a power under this section.





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(4) Subject to subsection (5), a natural person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the natural person.

(5) Despite subsection (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section is not admissible in evidence against the person—

(a) in the case of a person not being a body corporate, in any criminal proceedings other than proceedings under this section; or

(b) in the case of a body corporate, in any criminal proceedings other than proceedings under this Act.

20 Powers in relation to documents

If any documents are produced to the Monitor under this Part, the Monitor may—

(a) inspect the documents or authorise a person to inspect the documents;

(b) make copies of or take extracts of the documents;

(c) seize the documents if the Monitor—

(i) considers the documents necessary for obtaining evidence for the purpose of any proceedings against any person under this Act; or

(ii) believes on reasonable grounds that it is necessary to seize the documents to prevent their concealment, loss or destruction or their use in the contravention of this Act;



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(d) secure any seized documents against interference;

(e) retain possession of the documents in accordance with this Part.

21 Copies of seized documents

(1) If the Monitor retains possession of a document seized from a person under this Part, the Monitor must give the person, within 21 days of the seizure, a copy of the document certified as correct by the Monitor.

(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals as evidence of equal validity to the original.

22 Retention and return of seized documents

(1) If the Monitor seizes a document under this Part, the Monitor must take reasonable steps to return the document to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the document seized has not been returned within 3 months after it was seized, the Monitor must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b) the Magistrates' Court makes an order under section 23 extending the period during which the document may be retained.

23 Magistrates' Court may extend 3 month period

(1) The Monitor may apply to the Magistrates' Court—

(a) within 3 months after seizing a document under this Part; or



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(b) if an extension has been granted under this section, before the end of the period of the extension—

for an extension (not exceeding 3 months) of the period for which the Monitor may retain the document but so that the total period of retention does not exceed 12 months.

(2) The Magistrates' Court may order such an extension if it is satisfied that—

(a) it is in the interests of justice; and

(b) the total period of retention does not exceed 12 months; and

(c) retention of the document is necessary—

(i) for the purposes of an investigation into whether a contravention of this Act has occurred; or

(ii) to enable evidence of a contravention of this Act to be obtained for the purposes of a proceeding under this Act.

(3) The Magistrates' Court must consider the interests of the owner of the document and may adjourn an application to enable notice of the application to be given to any person.

24 Service of documents

(1) A written requirement by the Monitor under this Part may be given personally or by registered post to a person—

(a) at the last known place of business, employment or residence of the person; or

(b) in the case of a body corporate, at the registered office of the body corporate.



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(2) A person who provides a document or information in response to a requirement of the Monitor under this Part may send that document or information to the Monitor by registered post.

25 Information sharing

(1) The Monitor may enter into, or approve of, an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the Monitor and the relevant agency.

(2) The information to which an information sharing arrangement may relate is limited to information necessary for, or reasonably appropriate to, the performance of the functions of the Monitor.

(3) Under an information sharing arrangement, the Monitor and the relevant agency are authorised—

(a) to request and receive information held by the other party to the arrangement; and

(b) to disclose information to the other party—

but only to the extent that the information is reasonably necessary to assist in the exercise of functions under this Act or the functions of the relevant agency concerned.

(4) This section does not limit—

(a) the powers of the Monitor under this Part; or

(b) the operation of any other Act under which a relevant agency is authorised or required to disclose information to another person or body; or

(c) the giving of information—

(i) to a court or tribunal in the course of legal proceedings; or



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(ii) pursuant to an order of a court or tribunal; or

(iii) to the extent reasonably required to enable the investigation or the enforcement of a law of the State or of any other State or Territory or of the Commonwealth; or

(iv) to the Director; or

(v) with the written authority of the Secretary to the Department of Justice; or

(vi) with the written authority of the person to whom the information relates.

(5) In this section—

fair trading agency means an agency of the State, or of the Commonwealth, or of another State or Territory or of an overseas jurisdiction, that exercises functions under an enactment with respect to fair trading;

law enforcement agency means—

(a) the police force of Victoria or the police force of another State or Territory or of an overseas jurisdiction; or

(b) the Australian Federal Police; or

(c) the Australian Crime Commission; or

(d) any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction;



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relevant agency means—

(a) a fair trading agency; or

(b) a law enforcement agency; or

(c) the Essential Services Commission; or

(d) the State Revenue Office; or

(e) the Secretary to the Department of Treasury and Finance; or

(f) any other agency of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction; or

(g) any other person or body that exercises functions, in the public interest, that involve protecting the interests of consumers.

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PART 4—PRICE EXPLOITATION AND FALSE, MISLEADING AND DECEPTIVE PRACTICES

Division 1—Price exploitation

26 Price exploitation in relation to the fire services levy reform

(1) An insurance company contravenes this section if it engages in price exploitation in relation to the fire services levy reform.

(2) For the purposes of this section, an insurance company engages in price exploitation in relation to the fire services levy reform if—

(a) the insurance company issues a regulated contract of insurance; and

(b) the price for the supply of the regulated contract of insurance is unreasonably high having regard to—

(i) the fire services levy reform;

(ii) the amount to be contributed under section 37 of the Metropolitan Fire Brigades Act 1958 by insurance companies insuring against fire property situated within the metropolitan district;

(iii) the amount to be contributed under section 76 of the Country Fire Authority Act 1958 by insurance companies insuring against fire property situated within the country area of Victoria;

(iv) the historical fire services levy rates charged by the insurance company;



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(v) the costs of supplying insurance against fire;

(vi) any other prescribed matters.

27 Price exploitation guidelines

(1) The Monitor may issue guidelines about when prices for regulated contracts of insurance may be regarded as being in contravention of section 26.

(2) The Monitor may at any time vary guidelines issued under subsection (1).

(3) Guidelines issued under subsection (1) and any variation made under subsection (2) must be published—

(a) in the Government Gazette; and

(b) on an Internet site maintained by the Department of Justice.

(4) The Monitor must have regard to the guidelines when making any decision under section 28 or 29.

(5) A court may have regard to the guidelines in any proceedings relating to a contravention of section 26.

28 Monitor may issue notice to insurance company for a contravention of section 26

(1) If the Monitor considers that an insurance company has contravened section 26, the Monitor may give the insurance company a notice in writing under this section.

(2) The notice must—

(a) state that it has been given under this section;

(b) specify the name of the insurance company that supplied the regulated contract of insurance and details of the regulated contract of insurance;



26

(c) state that in the Monitor's opinion the price of the supply was unreasonably high having regard to the matters specified in section 26(2)(b).

(3) The Monitor may vary or revoke a notice given under this section on its own initiative or on the application of the insurance company to which it was given.

(4) The Monitor must give notice in writing to the insurance company of any variation or revocation under subsection (3).

(5) A notice given under this section is in any proceedings for a contravention of section 26 to be taken to be evidence that the price of the supply was unreasonably high having regard to the matters specified in section 26(2)(b) in the absence of any evidence to the contrary.

29 Monitor may give notice to aid prevention of price exploitation

(1) The Monitor may give an insurance company a notice in writing under this section if the Monitor considers that doing so will aid the prevention of price exploitation.

(2) The notice must—

(a) state that it has been given under this section;

(b) specify the name of the insurance company to which it applies;

(c) specify that it applies in respect of a regulated contract of insurance supplied by that insurance company;

(d) specify the maximum price that, in the Monitor's opinion, may be charged for a regulated contract of insurance to which the notice relates.



27

(3) The Monitor may vary or revoke a notice given under this section on its own initiative or on the application of the insurance company to which it was given.

(4) The Monitor must give notice in writing to the insurance company of any variation or revocation under subsection (3).

30 Monitor may monitor prices

(1) The Monitor may monitor prices for either or both of the following purposes—

(a) to assess the general effect of the fire services levy reform on prices charged by insurance companies for regulated contracts of insurance;

(b) to assist in the consideration of whether section 31 has been, is being, or may be, contravened.

(2) The Monitor may, by notice in writing served on a person, require the person—

(a) to give the Monitor specified information in writing signed by the person or, if the person is a body corporate, signed by a competent officer of the body corporate; or

(b) to produce specified documents—

being information, or documents containing information, relating to prices or the setting of prices that the Monitor considers will or may be useful to the Monitor in monitoring prices under this section.

(3) Without limiting subsection (2), information or documents that may be required under subsection (2) may relate to prices, or the setting of prices, whether before or after the commencement of the fire services levy reform.



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(a) refuse or fail to comply with a notice under subsection (2) to the extent that the person is capable of complying with it; or

(b) in purported compliance with a notice under subsection (2), intentionally or recklessly provide information or a document that is false or misleading.



Note

The powers conferred by this section are in addition to the powers conferred by section 18.

Division 2—Prohibited conduct

31 Prohibition on conduct falsely representing or misleading or deceiving

A person must not engage in any conduct in trade or commerce which—

(a) falsely represents (whether expressly or impliedly) the effect, or likely effect, of the fire services levy reform; or

(b) misleads or deceives, or is likely to mislead or deceive, any person about the effect or likely effect, of the fire services levy reform.

Division 3—Pecuniary penalties

32 Pecuniary penalty for contravention of penalty provision

(1) The Monitor may apply to the Supreme Court for an order under this Part in respect of the contravention by a person of a penalty provision



29

or the doing by a person of any other thing mentioned in subsection (2).

(2) If the Supreme Court is satisfied that a person has—

(a) contravened a penalty provision; or

(b) attempted to contravene a penalty provision; or

(c) aided, abetted, counselled or procured a person to contravene a penalty provision; or

(d) induced, or attempted to induce, a person whether by threats or promises or otherwise, to contravene a penalty provision; or

(e) been in any way, directly or indirectly, knowingly concerned in, or a party to, the contravention by a person of a penalty provision; or

(f) conspired with others to contravene a penalty provision—

the Supreme Court may order the person to pay a pecuniary penalty to the Minister in respect of each act or omission by the person to which this section applies as the Supreme Court determines to be appropriate, being an amount not exceeding $500 000 in the case of a natural person, or not exceeding $10 000 000 in the case of a body corporate.

(3) In determining the amount of the pecuniary penalty to be paid by the person, the Supreme Court may have regard to all the relevant matters including—

(a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and



30

(b) the circumstances in which the act or omission took place; and

(c) whether the person has previously been found by the Supreme Court to have contravened a penalty provision.

(4) An application under subsection (1) must be made before 31 December 2014.

33 Defence to proceedings under section 32 relating to a contravention of section 31

(1) In proceedings against a person (the respondent) under section 32 in relation to an alleged contravention of section 31, it is a defence if the respondent establishes that the contravention in respect of which the proceedings were instituted—

(a) was due to a reasonable mistake; or

(b) was due to reasonable reliance on information supplied by another person; or

(c) was due to the act or default of another person, to an accident or to some other cause beyond the respondent's control and the respondent took reasonable precautions and exercised due diligence to avoid the contravention.

(2) In subsection (1)(b) and (c), another person does not include a person who was—

(a) a servant or agent of the respondent; or

(b) if the respondent is a body corporate, a director, servant or agent of the respondent—

at the time when the alleged contravention occurred.



31

(3) In this section, contravention of section 31 includes conduct referred to in section 32(2)(b), (c), (d), (e) or (f) which relates to a contravention of section 31.

34 What happens if substantially the same conduct is a contravention of section 31 and is an offence?

(1) The Supreme Court must not make a pecuniary penalty order against a person in relation to a contravention of section 31 if the person has been convicted of an offence constituted by conduct which is substantially the same as the conduct constituting the contravention.

(2) Proceedings for a pecuniary penalty order against a person in relation to a contravention of section 31 are stayed if—

(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention of section 31.

(3) Proceedings for a pecuniary penalty order against a person in relation to a contravention of section 31 stayed under subsection (2)—

(a) may be re-commenced if the person is not convicted of the offence;

(b) must be dismissed if the person is convicted of the offence.

(4) Criminal proceedings may be commenced against a person for conduct which is substantially the same as conduct constituting a contravention of section 31 regardless of whether a pecuniary penalty order has been made against the person in respect of the contravention of section 31.



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(5) Subject to subsection (6), evidence of information given, or evidence of production of documents, by a natural person is not admissible in criminal proceedings against the natural person if—

(a) the natural person previously gave the evidence or produced the document in proceedings for a pecuniary penalty order against the natural person for a contravention of section 31, whether or not the pecuniary penalty order was made; and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention of section 31.

(6) Subsection (5) does not apply to a criminal proceeding in respect of the falsity of the evidence given by the natural person in the proceedings for the pecuniary penalty order.

(7) In this section, contravention of section 31 includes conduct referred to in section 32(2)(b), (c), (d), (e) or (f) which relates to a contravention of section 31.

35 Conduct contravening more than one pecuniary penalty provision

(1) Subject to subsection (2), if conduct constitutes a contravention of more than one pecuniary penalty provision, proceedings may be instituted under this Division against a person in relation to the contravention of any one of those provisions.

(2) A person is not liable to more than one pecuniary penalty under this Division in relation to the same conduct.



33

36 Civil evidence and procedure rules for pecuniary penalty order

The Supreme Court must apply the rules of evidence and procedure for civil matters when hearing an application for a pecuniary penalty order.

37 Evidence given in civil proceedings not admissible in criminal proceedings

(1) Subject to subsection (2), evidence of information given, or evidence of documents, by a person is not admissible in criminal proceedings against the person if—

(a) the person previously gave the information or produced the document in proceedings for a pecuniary penalty order against the person for an alleged contravention of a pecuniary penalty provision, whether or not the pecuniary penalty order was made; and

(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute a contravention of the pecuniary penalty provision.

(2) Subsection (1) does not apply to criminal proceedings in relation to the falsity of evidence given by the person in the proceedings for the pecuniary penalty provision.

38 State of mind

(1) In proceedings for a pecuniary penalty order against a person for a contravention of a pecuniary penalty provision, it is not necessary to prove—

(a) the person's intention; or

(b) the person's knowledge; or

(c) any other state of mind of the person.



34

(2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of section 31 being conduct referred to in section 32(2)(b), (c), (d), (e) or (f).

(3) Subsection (1) does not affect the operation of section 33.

39 Pecuniary penalty to be paid into Consolidated Fund

The Minister must pay any pecuniary penalty received by the Minister into the Consolidated Fund.

__________________



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PART 5—CODES OF PRACTICE

40 Preparation of draft code of practice by the Monitor

(1) The Monitor may, with the approval of the Minister, prepare for submission to the Minister a draft code of practice in relation to the supply of regulated contracts—

(a) by a particular insurance company; or

(b) by a particular class of insurance companies and a particular class of purchasers of insurance.

(2) The Monitor must prepare and submit a draft code of practice under subsection (1) if directed by the Minister.

41 Consideration of draft code of practice

If the Monitor is satisfied that a particular insurance company or a particular class of insurance companies have, in consultation with other interested persons, agreed to abide by a particular code of practice in the supply of insurance, the Monitor may submit the code to the Minister for consideration together with any recommendations of the Monitor with respect to the code.

42 Prescribing codes of practice

The Minister may—

(a) recommend to the Governor in Council that the Governor in Council make regulations prescribing a code of practice which—

(i) has been prepared and submitted to the Minister under section 40; or

(ii) has been submitted to the Minister under section 41; or



36

(b) recommend that the Governor in Council make regulations prescribing such a code of practice with the amendments made by the Minister.

43 Offence to breach code of practice

A person must comply with a code of practice prescribed under this Act.

Penalty: 300 penalty units.

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PART 6—FIRE SERVICE LEVY DISPUTES

44 Making a fire services levy dispute complaint

(1) Any person may make a fire services levy dispute complaint to the Monitor.

(2) A person may complain to the Monitor in writing.

(3) The Monitor may ask a person who has made a complaint to give more information about the complaint within the time fixed by the Monitor.

(4) A person who has made a complaint must give his or her name to the Monitor and such other information relating to his or her identity as the Monitor may require.

45 Conciliation and mediation

(1) The Monitor may refer a fire services levy dispute complaint to the Director for conciliation or mediation.

(2) A fire services levy dispute complaint referred to the Director under subsection (1) must be reasonably likely to be settled.

(3) If the whole or any part of a fire services levy dispute complaint under subsection (1) falls within the jurisdiction of any prescribed person or body, the Director must refer the complaint, or that part of the complaint, to the person or body within whose jurisdiction it falls.

(4) In this section, prescribed person or body means—

(a) a body referred to in section 6(1)(e); and

(b) any other person or body prescribed for the purposes of this section.



38

46 Powers of the Director in relation to certain proceedings

(1) The Director may, subject to this section, institute or continue proceedings on behalf of, or defend proceedings brought against, a person or persons in respect of a fire services levy dispute.

(2) The Director must not, under subsection (1), institute or continue or defend proceedings unless the Director is satisfied—

(a) that the person or persons have a good cause of action or a good defence to an action relating to the fire services levy dispute; and

(b) that it is in the public interest to institute, continue or defend proceedings on behalf of the person or persons.

(3) The Director must not, under subsection (1), institute, continue or defend proceedings on behalf of a person or persons unless—

(a) the person has or the persons have given consent in writing; or

(b) in the case of group proceedings or representative proceedings, the representative party has given consent.

(4) After consent has been given under subsection (3)(a) or (b), the Director may institute or continue a proceeding or defence on behalf of a person or persons even if the person revokes, or any of the persons revoke, the consent.

47 Proceedings and costs

(1) If the Director institutes, continues or defends proceedings on behalf of a person under section 46—



39

(a) the Director may settle the proceedings either with or without obtaining judgment in the proceedings; and

(b) if a judgment is obtained in the proceedings in favour of the person, the Director may take such steps as are necessary to enforce the judgment; and

(c) an amount (other than an amount in respect of costs) recovered by the Director in respect of the person in the proceedings is payable to the person; and

(d) an amount in respect of costs recovered in the proceedings is payable to the Director; and

(e) the person is liable to pay an amount (not being an amount of costs) awarded against the person in the proceedings; and

(f) the Director is liable to pay the costs of or incidental to the proceedings that are payable by the person.

(2) If, in proceedings instituted, continued or defended on behalf of a person under section 46—

(a) a party to the proceedings files a counterclaim; or

(b) the person is entitled to file a counterclaim—

and the counterclaim is not or would not be related to the proceedings and to the interests of the person in the dispute, the Director may apply to the court hearing the proceedings for an order that the counterclaim not be heard in the course of those proceedings.



40

(3) If the court makes an order under subsection (2), the court may make any ancillary or consequential orders that it thinks just.

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PART 7—INSPECTION POWERS

Division 1—Inspectors

48 Appointment of inspectors

(1) The Monitor may appoint as an inspector—

(a) a person employed under Part 3 of the Public Administration Act 2004;

(b) a person appointed as an inspector, enforcement officer or authorised officer by or under any other Act.

(2) An appointment under subsection (1) must be made by instrument.

(3) The Monitor must not appoint a person as an inspector unless the Monitor is satisfied that the person is appropriately qualified or has successfully completed appropriate training.

49 Inspector's identification

(1) The Monitor must issue identification to each inspector.

(2) Identification must contain a photograph of the inspector to whom it is issued.

50 Production of identification

(1) An inspector must produce his or her identification for inspection—

(a) before exercising a power under this Part; and

(b) at any time during the exercise of a power under this Part, if asked to do so.

Penalty:10 penalty units.

(2) Subsection (1) does not apply to a requirement made by post.



42

Division 2—Requirements to produce information

51 Inspector may seek court order

(1) If an inspector believes on reasonable grounds that a person may have contravened this Act, the inspector may apply to the Magistrates' Court for an order requiring any person at a time and place specified by the inspector—

(a) to answer orally or in writing any questions put by an inspector in relation to the alleged contravention;

(b) to supply orally or in writing information required by an inspector in relation to the alleged contravention;

(c) to produce to an inspector specified documents or documents of a specified class relating to the alleged contravention.

(2) An application under subsection (1) must be made with the written approval of the Monitor.

(3) The Magistrates' Court may make the order if the Magistrates' Court is satisfied that there are reasonable grounds to believe that a person may have contravened this Act.

(4) An order must state a day, not later than 28 days after the making of the order, on which the order ceases to have effect.

52 Inspection of documents under court order

(1) If any documents are produced to an inspector under an order made under section 51, the inspector may—

(a) inspect the documents or authorise a person to inspect the documents;



43

(b) make copies of or take extracts of the documents;

(c) seize the documents;

(d) secure any seized documents against interference;

(e) retain possession of the documents in accordance with this Part.

(2) An inspector may only seize documents under subsection (1)(c) if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings against any person under this Act.

53 Notification of execution of court order

(1) An inspector who executes an order under this Division must, as soon as practicable after the execution of the order, notify the Magistrates' Court in writing of—

(a) the time and place of execution; and

(b) the documents or classes of documents seized; and

(c) if documents were seized under section 52(1)(c) in respect of an alleged contravention other than a contravention for which the order was made, the alleged contravention in respect of which the documents were seized.

(2) The Magistrates' Court may direct the inspector to bring before the court a document to which subsection (1)(c) applies so that the matter may be dealt with according to law.

(3) The Magistrates' Court may direct that a document brought before it under subsection (2) be returned to its owner, if in the opinion of the Magistrates' Court the document can be returned consistently with the interests of justice.



44

(4) A direction under subsection (3) may be subject to any condition the court thinks fit.

Division 3—Entry and search of premises with consent

54 Entry and search with consent

(1) If an inspector believes on reasonable grounds that a person has contravened this Act, the inspector, with the consent of the occupier of premises, may—

(a) enter and search the premises; and

(b) exercise a power referred to in subsections (2) and (3) at the premises.

(2) An inspector may—

(a) seize any thing the inspector finds on the premises if the inspector believes on reasonable grounds the thing is connected with the alleged contravention;

(b) in the case of any document on the premises, do any of the following in relation to the document, if the inspector believes on reasonable grounds the document is connected with the alleged contravention—

(i) require the document to be produced for examination;

(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts;

(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document.



45

(3) An inspector may make any 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 the alleged contravention.

55 Notice before entry and search

An inspector must not enter and search any premises under section 54 unless, before the occupier consents to the entry and search, the inspector has—

(a) produced his or her identification for inspection; and

(b) informed the occupier—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any thing found during the search; and

(iii) that the occupier may refuse to give consent to the taking of any copy or extract from a document found on the premises during the search; and

(iv) that any thing seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.

56 Acknowledgement of consent to entry and search

(1) If an occupier of premises consents to the entry and search of the premises by an inspector under section 54, the inspector must, before entering the premises, ask the occupier to sign an acknowledgment.



46

(2) For the purpose of subsection (1), the acknowledgment must state—

(a) that the occupier has been informed—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to give consent to the entry and search or to the seizure of any thing found during the search; and

(iii) that the occupier may refuse to give consent to the taking of any copy or extract from a document found on the premises during the search; and

(iv) that any thing seized or taken during the search with the consent of the occupier may be used in evidence in proceedings; and

(b) that the occupier has consented to the entry and search; and

(c) the date and time that the occupier consented.

(3) If an occupier of premises consents to the seizure or taking of any thing during a search of the premises by the inspector, the inspector must, before seizing or taking the thing, ask the occupier to sign an acknowledgement.

(4) For the purpose of subsection (3), the acknowledgment must state—

(a) that the occupier has consented to the seizure or taking of the thing; and

(b) the date and time that the occupier consented.

(5) An inspector must give a copy of a signed acknowledgement to the occupier before leaving the premises.



47

(6) If, in any proceeding, a signed acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the thing.

Division 4—Entry and search of premises with warrant

57 Search warrants

(1) An inspector may 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 on the premises evidence that a person may have contravened this Act.

(2) An application under subsection (1) must be made with the written approval of the Monitor.

(3) If a magistrate is satisfied by the evidence, on oath or by affidavit, that there are reasonable grounds to believe that there is a thing, or thing of a particular kind, connected with a contravention of this Act or the regulations on the premises, the magistrate may issue the search warrant in accordance with the Magistrates' Court Act 1989.

58 Form and content of search warrants

(1) A search warrant issued under section 57(3) may authorise the inspector named in the warrant to enter premises specified in the warrant, if necessary by force, and do any of the following—

(a) if the inspector believes on reasonable grounds that a thing, or thing of a particular kind, named or described in the warrant is connected with the alleged contravention—

(i) search for the thing;

(ii) seize the thing;

(iii) secure the thing against interference;



48

(iv) examine, inspect and take and keep samples of the thing;

(b) in the case of any document, or document of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—

(i) require the document to be produced for inspection;

(ii) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts;

(iii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document;

(c) make any still or moving image or audio-visual recording of any thing of a particular kind named or described in the warrant, if the inspector believes on reasonable grounds that it is connected with the alleged contravention.

(2) A search warrant issued under section 57(3) may authorise, in addition to an inspector, any other person named or otherwise identified in the warrant to execute the warrant.

(3) A search warrant issued under section 57(3) must state—

(a) the purpose for which the search is required and the nature of the alleged contravention; and



49

(b) any conditions to which the warrant is subject; and

(c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.

(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 extend and apply to warrants issued under section 57(3).

59 Announcement before entry

(1) On executing a search warrant issued under section 57(3), the inspector named in the warrant—

(a) must announce that he or she is authorised by the warrant to enter the premises; and

(b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure—

(a) the safety of any person; or

(b) that the effective execution of the search warrant is not frustrated.

60 Details of warrant to be given to occupier

(1) If the occupier is present at premises where a search warrant is being executed, the inspector must—



50

(a) identify himself or herself to the occupier; and

(b) give to the occupier a copy of the warrant.

(2) If the occupier is not present at premises where a search warrant is being executed, the inspector must—

(a) identify himself or herself to a person at the premises; and

(b) give to the person a copy of the warrant.

61 Seizure of things not mentioned in the warrant

A search warrant issued under section 57(3) authorises an inspector named in the warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize any thing which is not of the kind described in the warrant if—

(a) the inspector believes on reasonable grounds that the thing—

(i) is of a kind which could have been included in a search warrant issued under this Part; or

(ii) will afford evidence about the contravention of this Act; and

(b) in the case of the seizure of a thing, the inspector believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act.

Division 5—Documents

62 Copies of seized documents

(1) If an inspector retains possession of a document seized from a person under this Part, the inspector must give the person, within 21 days after the



51

seizure, a copy of the document certified as correct by the inspector.

(2) A copy of a document certified under subsection (1) is to be received in all courts and tribunals to be evidence of equal validity to the original.

63 Retention and return of seized documents or things

(1) If an inspector seizes a document or other thing under this Part, the inspector must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b) the Magistrates' Court makes an order under section 64 extending the period during which the document or thing may be retained.

64 Magistrates' Court may extend 3 month period

(1) If an inspector seizes a document or other thing under this Part, the inspector may apply to the Magistrates' Court for an order for an extension, not exceeding 3 months, of the period for which the inspector may retain the document or thing.

(2) An application under subsection (1) must be made—

(a) within 3 months after seizing a document or other thing under this Part; or



52

(b) if an extension has been granted under this section, before the end of the period of the extension.

(3) The Magistrates' Court may make the order if it is satisfied that—

(a) it is in the interests of justice; and

(b) the total period of retention does not exceed 12 months; and

(c) retention of the document or other thing is necessary—

(i) for the purposes of an investigation into whether a contravention of this Act has occurred; or

(ii) to enable evidence of a contravention of this Act to be obtained for the purposes of a proceeding under this Act.

(4) At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the document or thing described in the application.

Division 6—Offences

65 Refusal or failure to comply with requirement

A person must not, without reasonable excuse, refuse or fail to comply with a requirement of the Monitor or an inspector under this Part.





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66 Protection against self-incrimination

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.

(2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.

67 Offence to give false or misleading information

(1) A person must not give information to an inspector under this Part that the person believes to be false or misleading in any material particular.



(2) A person must not produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.





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68 Offence to hinder or obstruct inspector

A person must not, without reasonable excuse, hinder or obstruct an inspector who is exercising a power under this Part.



69 Offence to impersonate inspector

A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.


Division 7—Miscellaneous

70 Entry to be reported to the Monitor

(1) If an inspector exercises a power of entry under this Part, the inspector must report the exercise of the power to the Monitor within 7 days after the entry.

(2) The report must include all relevant details of the entry including—

(a) the time and place of the entry; and

(b) the purpose of the entry; and

(c) a description of things done while on the premises, including details of things seized, copies made and extracts taken; and

(d) the time of departure.

71 Requirement to assist inspector during entry

To the extent that it is reasonably necessary to determine compliance with this Act, an inspector exercising a power of entry under this Part who produces his or her identification for inspection by



55

the occupier of the premises or an agent or employee of the occupier may require that person—

(a) to give information to the inspector, orally or in writing; and

(b) to produce documents to the inspector; and

(c) to give reasonable assistance to the inspector.

72 Register of exercise of powers of entry

The Monitor must keep a register containing the particulars of all matters reported to the Monitor under section 70.

73 Complaints

(1) Any person may complain to the Monitor about the exercise of a power by an inspector under this Part.

(2) The Monitor must—

(a) investigate any complaint made to the Monitor; and

(b) provide a written report to the complainant on the results of the investigation.

74 Service of documents

(1) A written requirement by an inspector under this Part may be—

(a) given personally or sent by registered post to a person at the last known place of business, employment or residence of the person; or

(b) in the case of a body corporate, given personally or sent by post at the registered office of the body corporate.



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(2) A person who provides a document or information in response to a requirement of an inspector under this Part may send that document or information to the Monitor by registered post.

75 Confidentiality

(1) An inspector must not disclose to any other person, whether directly or indirectly, any information obtained by the inspector in carrying out his or her functions under this Part.


(2) Subsection (1) does not apply to the disclosure of information—

(a) to the extent necessary to carry out the inspector's functions under this Part; or

(b) to a court or tribunal in the course of legal proceedings; or

(c) pursuant to an order of a court or tribunal; or

(d) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or

(e) to the Essential Services Commission; or

(f) with the written authority of the Monitor; or

(g) with the written authority of the person to whom the information relates.

__________________



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PART 8—REMEDIES AND LEGAL PROCEEDINGS

Division 1—Substantiation notices

76 Monitor may require claim to be substantiated

(1) Subject to subsection (6), this section applies if a person has made a claim or representation in trade or commerce as to the effect or likely effect of the fire services levy reform.

(2) The Monitor may give the person who made the claim or representation a written notice requiring the person to do any one or more of the following—

(a) give information or produce documents or both to the Monitor that could be capable of substantiating or supporting the claim or representation;

(b) if the claim or representation relates to the supply, or possible supply, of a regulated contract of insurance by the person or another person, give information or produce documents or both to the Monitor that could be capable of substantiating or supporting the claim or representation;

(c) give information or produce documents or both to the Monitor that are of a kind specified in the notice—

within 21 days after the notice is given to the person who made the claim or representation.

(3) Any kind of information or documents that the Monitor specifies under subsection (2)(c) must be of a kind that the Monitor is satisfied is relevant to—



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(a) substantiating or supporting the claim or representation; or

(b) if the claim or representation relates to the supply, or possible supply, of a regulated contract of insurance by the person or another person, substantiating or supporting the claim or representation.

(4) The substantiation notice must—

(a) state the name of the person to whom it is to be given;

(b) specify the claim or representation to which it relates;

(c) explain the effect of sections 77, 78 and 79.

(5) The substantiation notice may relate to more than one claim or representation that the person has made.

(6) This section does not apply to a person who makes a claim or representation if the person—

(a) makes the claim or representation as an information provider by publishing it on behalf of another person in the course of carrying on a business of providing information; and

(b) does not have a commercial relationship with the other person other than for the purpose of—

(i) publishing claims or representations promoting, or apparently intended to promote, the other person's business or other activities; or

(ii) the other person supplying insurance to the person.



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(7) In this section, information provider means a person who carries on a business of providing information.

(8) Without limiting the generality of subsection (7), each of the following is an information provider—

(a) the holder of a licence granted under the Broadcasting Services Act 1992 of the Commonwealth;

(b) a person who is the provider of a broadcasting service under a class licence under that Act;

(c) the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 of the Commonwealth;

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

77 Extending period for complying with substantiation notice

(1) A person who has been given a substantiation notice may, at any time within the period of 21 days after the substantiation notice was given to the person by the Monitor, apply in writing to the Monitor for an extension of the period for complying with the substantiation notice.

(2) The Monitor may, by written notice given to the person, extend the period within which the person must comply with the substantiation notice.



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78 Compliance with a substantiation notice

(1) A person who is given a substantiation notice must comply with the substantiation notice within the compliance period.



(2) In this section, compliance period means—

(a) the period of 21 days specified in the compliance notice; or

(b) if the period for complying with the notice has been extended under section 77, the period as so extended—

and if an application has been made under section 77(1) for an extension of the period specified in the substantiation notice, includes the period up until the time when the applicant is given notice of the Monitor's decision on the application.

(3) Despite subsection (1), a natural person may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information or production of the document might tend to incriminate the person or expose the person to a penalty.

79 False or misleading information

(1) A person must not, in compliance or purported compliance with a substantiation notice—

(a) give the Monitor false or misleading information; or



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(b) produce to the Monitor documents that contain false or misleading information.



(2) This section does not apply to—

(a) information that the person could not have known was false or misleading; or

(b) the production to the Monitor of a document containing false or misleading information if the document is accompanied by a statement made by the person that the information is false or misleading.

Division 2—Compensation orders

80 Compensation order on application of injured person or the Monitor

(1) A court may on the application of—

(a) a person (the injured person) who has suffered, or is likely to suffer, loss or damage—

(i) because of the conduct of another person that was engaged in a contravention of this Act; or

(ii) as a consequence of the price for the supply of a regulated contract of insurance by an insurance company being unreasonably high having regard to the matters specified in section 26(2)(b); or



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(b) the Monitor made on behalf of one or more injured persons—

make any order or orders under section 84 that the court considers appropriate against the person who engaged in the conduct, or a person involved in the conduct, or where subparagraph (ii) applies, the insurance company.

(2) The order must be an order that the court considers will—

(a) compensate the injured person or injured persons, in whole or in part for the loss or damage; or

(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or injured persons.

(3) An application may be made under subsection (1) even if proceedings in relation to the conduct in contravention of this Act have not been instituted.

(4) The Monitor must not make an application under subsection (1)(b) unless each person on whose behalf the application is to be made has consented in writing to the making of the application.

(5) An application under subsection (1) must be made before 31 December 2014.

81 Order to redress loss or damage suffered by non-party consumers

(1) If—

(a) a person is engaged in conduct in contravention of this Act; and

(b) the conduct in contravention of this Act caused, or is likely to cause, a class of persons to suffer loss or damage; and



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(c) the class of persons includes persons who are non-party consumers in relation to the conduct in contravention of this Act—

a court may, on the application of the Monitor, make any order or orders (other than an award of damages) under section 84 as the court considers appropriate against the person who engaged in the conduct in contravention of this Act, or a person involved in that conduct.

(2) The order must be an order that the court considers will—

(a) redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the conduct in contravention of this Act; or

(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the conduct in contravention of this Act.

(3) An application may be made under subsection (1) even if proceedings in relation to the conduct in contravention of this Act have not been instituted.

82 Determining whether to make an order under section 81(1)

(1) In determining whether to make an order under section 81(1), the court may have regard to the conduct of the person referred to in that section, and of the non-party consumers in relation to the conduct in contravention of this Act, since the contravention occurred.

(2) In determining whether to make an order under section 81(1), the court need not make a finding about either of the following matters—

(a) which persons are non-party consumers in relation to the conduct in contravention of



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this Act;

(b) the nature of the loss or damage suffered, or likely to be suffered, by non-party consumers.

83 When is a non-party consumer bound by an order under section 81

(1) A non-party consumer is bound by an order made under section 81 against a person if—

(a) the loss or damage suffered, or likely to be suffered, by the non-party consumer in relation to the conduct in contravention of this Act to which the order relates has been redressed, prevented or reduced in accordance with the order; and

(b) the non-party consumer has accepted the redress, prevention or reduction.

(2) Any other order made under section 81 that relates to that loss or damage has no effect in relation to the non-party consumer.

(3) Despite any other provision of any other Act or law of Victoria, or of the Commonwealth, or of any other State or a Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.

84 What kinds of orders can be made?

(1) Without limiting the generality of section 80 or 81, the orders that a court may make under any of those sections against a person (the respondent) include any or all of the following—

(a) an order declaring the whole or any part of a contract of insurance made between the



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respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in those sections, or of a collateral arrangement relating to the contract of insurance—

(i) to be void; and

(ii) if the court considers it appropriate, to have been void ab initio or void at all times on and after a date specified in the order which may be a date that is before the date on which the order is made;

(b) an order—

(i) varying a contract of insurance made between the respondent and the injured person who suffered, or is likely to suffer, the loss or damage referred to in that section, or a collateral arrangement relating to the contract of insurance in the manner specified in the order; and

(ii) if the court considers it appropriate, declare the contract or arrangement to have had effect as so varied on and after a date specified in the order which may be a date that is before the date on which the order is made;

(c) an order refusing to enforce any or all of the provisions of a contract of insurance made between the respondent and the injured person who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to the contract of insurance;

(d) an order directing the respondent to refund money or return property to the injured person;



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(e) an order that an amount specified by the court be paid into the Victorian Consumer Law Fund.

(2) Without limiting the generality of section 80 or subsection (1), the court may also make an order directing the respondent to pay the injured person the amount of the loss or damage.

85 Power of court to make orders

A court may make an order under this Division whether or not the court grants an injunction or makes an order under any other provision of this Act.

86 Interaction with Divisions 1 and 3

This Division does not limit the generality or application of Divisions 1 and 3 of this Part.

Division 3—General

87 Prosecutions of offences

Despite section 7 of the Criminal Procedure Act 2009 a prosecution for an offence under this Act may be commenced not later than 31 December 2014.

88 Who can bring proceedings for offences?

(1) Proceedings for an offence against this Act may only be brought by—

(a) the Monitor; or

(b) a person authorised by the Monitor for the purposes of this section.

(2) In proceedings for an offence against this Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the



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proceedings was authorised to bring the proceedings.

89 Contraventions by bodies corporate

(1) If a body corporate contravenes or commits an offence against any provision of this Act, each officer of the body corporate is deemed to have contravened the same provision if the officer knowingly authorised or permitted the contravention.

(2) A person may be proceeded against and, in the case of an offence, convicted under a provision in accordance with subsection (1) whether or not the body corporate has been proceeded against under that provision.

(3) Nothing in this section affects any liability imposed on a body corporate for a contravention of this Act by the body corporate.

90 Conduct by officers, employees or agents

(1) If, in a proceeding under this Act in respect of conduct that is engaged in by a body corporate and to which this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show—

(a) that an officer, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the officer, employee or agent; and

(b) that the officer, employee or agent had that state of mind.

(2) The following conduct engaged in on behalf of a body corporate is also taken, for the purposes of this Act, to have been engaged in by the body corporate—



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(a) conduct by an officer, employee or agent of the body corporate within the scope of the actual or apparent authority of the officer, employee or agent; or

(b) conduct by any other person—

(i) at the direction of an officer, employee or agent of the body corporate; or

(ii) with the consent or agreement (whether express or implied) of such an officer, employee or agent—

if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, employee or agent.

(3) If, in a proceeding under this Act in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Act applies, it is necessary to establish the state of mind of the principal, it is sufficient to show—

(a) that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority or the employee or agent; and

(b) that the employee or agent had that state of mind.

(4) The following conduct engaged in on behalf of a person (the principal) other than a body corporate is also taken, for the purposes of this Act, to have been engaged in by the principal—

(a) conduct by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or

(b) conduct by any other person—



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(i) at the direction of an employee or agent of the principal; or

(ii) with the consent or agreement (whether express or implied) of such an employee or agent—

if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent.

(5) If—

(a) a person other than a body corporate is convicted of an offence; and

(b) subsection (3) or (4) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and

(c) the person would not have been convicted of the offence if that subsection had not been enacted—

the person is not liable to be punished by imprisonment for that offence.

(6) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.

91 Interpretation

A reference in this Division to a person involved in a contravention of this Act means a reference to a person who—

s. 90s. 91Part 6—Fire Service Levy Disputes


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(a) has aided, abetted, counselled or procured the contravention;

(b) has induced, whether by threats or promises or otherwise, the contravention;

(c) has been in any way, directly or indirectly, knowingly concerned in or party to, the contravention;

(d) has conspired with others to effect the contravention.

92 Undertakings

(1) The Monitor may accept a written undertaking given by a person in connection with a matter in relation to which the Monitor has a power or function under this Act.

(2) The person may withdraw or vary an undertaking at any time, if the person has first obtained the consent of the Monitor.

(3) The Monitor, with the consent of the person who gave an undertaking, may apply, at any time, to the Magistrates' Court for an order directing the person to comply with the undertaking.

(4) On an application under subsection (3), the Magistrates' Court may by order direct the person who gave the undertaking to comply with the undertaking.

(5) If the Monitor considers that the person who gave the undertaking has breached any of its terms, the Monitor may apply to the Magistrates' Court for an order under subsection (6).

(6) If the Magistrates' Court is satisfied that the person has breached a term of the undertaking, the Magistrates' Court may make all or any of the following orders—

Part 6—Fire Service Levy Disputes


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(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the Magistrates' Court considers appropriate directing the person to compensate any other person who has suffered loss, injury or damage as a result of the breach;

(d) any other order that the Magistrates' Court considers appropriate.

(7) If a body corporate is found to have breached an undertaking, each officer of the body corporate is deemed to have so breached the undertaking if the officer knowingly authorised or permitted the breach and the Magistrates' Court may, against the officer, make all or any of the orders set out in subsection (6) that the Magistrates' Court considers appropriate.

93 Copy of undertaking

The Monitor must give a copy of an undertaking under section 92 to the person who made the undertaking.

94 Register of undertakings

(1) The Monitor must—

(a) maintain a register of undertakings; and



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(b) register each undertaking in the register of undertakings.

(2) The register of undertakings must include the following—

(a) the name and address of the person who gave the undertaking;

(b) the date of the undertaking;

(c) a copy of the undertaking.

(3) The register of undertakings may be inspected by any person at any reasonable time, without charge.

95 Injunctions to restrain conduct

(1) The Monitor or any other person may apply to the Supreme Court, County Court or Magistrates' Court for the grant of an injunction restraining a person from engaging in conduct that constitutes—

(a) a contravention of a provision of this Act; or

(b) attempting or conspiring to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or

(e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2) The Supreme Court, County Court or Magistrates' Court may grant an injunction restraining a person from engaging in conduct of the kind referred to in paragraphs (a) to (e) of subsection (1)—



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(a) if the Supreme Court, County Court or Magistrates' Court is satisfied that the person is engaging in or has been engaging in conduct of that kind, whether or not it appears to the Supreme Court, County Court or Magistrates' Court that the person intends to engage again or continue to engage in the conduct; or

(b) if it appears to the Supreme Court, County Court or Magistrates' Court that, in the event that the injunction is not granted, it is likely that the person will engage in conduct of that kind, whether or not that person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind; or

(c) if the Supreme Court, County Court or Magistrates' Court determines it to be appropriate, by consent of all the parties to the proceedings, whether or not the person has engaged in, or is likely to engage in, conduct of that kind.

(3) An application for an injunction under this section may be made ex parte.

96 Injunctions to do an act or thing

(1) The Supreme Court or the County Court, on the application of the Monitor or any other person, may grant an injunction requiring a person to do any act or thing if the Supreme Court or County Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes—

(a) a contravention of any provision of this Act; or



74

(b) attempting or conspiring to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or

(d) inducing or attempting to induce a person, whether by threats, promises or otherwise, to contravene such a provision; or

(e) being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision.

(2) The power of the Supreme Court or County Court under this section to grant an injunction requiring a person to do an act or thing may be exercised—

(a) whether or not it appears to the Supreme Court or County Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing; and

(c) whether or not there is an imminent danger of substantial damage to any person if the first person refuses or fails to do that act or thing.

(3) Without limiting subsection (1), an injunction under this section may require a person—

(a) to institute a training program for the person's employees in relation to compliance with this Act;

(b) to refund money to purchasers;

(c) to disclose information about the person's business activities or business associates;

(d) to honour any promise made in the course of misleading or deceptive conduct or in a false



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representation.


97 Interim injunctions

(1) The Supreme Court, County Court or Magistrates' Court may grant an interim injunction pending determination of an application under section 95, if, in the opinion of the Supreme Court, County Court or Magistrates' Court it is desirable to do so—

(a) whether or not it appears to the Supreme Court, County Court or Magistrates' Court that the person intends to engage in or continue to engage in conduct of the kind referred to in paragraphs (a) to (e) of section 95(1); or

(b) whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

(2) The Supreme Court or County Court may grant an interim injunction pending determination of an application under section 96 in relation to an act or thing, if, in the opinion of the Supreme Court or County Court it is desirable to do so—

(a) whether or not it appears to the Supreme Court or County Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or failed to do that act or thing.




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98 Power to rescind or vary injunctions

The Court may rescind or vary an injunction granted by it under section 95 or 96 or an interim injunction granted by it under section 97.

99 Undertakings as to costs

(1) In any application under section 95, 96 or 97, subject to subsection (2), if—

(a) the Court would, but for this subsection, require a person to give an undertaking as to costs; and

(b) the Monitor gives the undertaking—

the Court must accept the undertaking by the Monitor and must not require a further undertaking from any other person.

(2) In an application for an injunction under section 96 or 97, if the application has been made by the Monitor and if the Court has determined to grant an interim injunction, the Court must not, as a condition of granting the interim injunction, require the applicant or any other person to give any undertaking as to costs.

100 Powers of court if requirement of Monitor or inspector not complied with

(1) Subject to subsection (3), if the Monitor is satisfied that a person has, without reasonable excuse, failed to comply with a requirement under section 18 or 19, the Monitor may certify that failure to a court.

(2) Subject to subsection (3), if an inspector is satisfied that a person has, without reasonable excuse, failed to comply with a requirement of the inspector under section 71, the inspector may certify that failure to a court.



77

(3) The Monitor or an inspector cannot certify a failure to a court under subsection (1) or (2) if the person to whom the failure relates has been charged with an offence against section 18(2), 19(3) or 65.

(4) If the Monitor or an inspector so certifies under subsection (1) or (2), the court may inquire into the case and may order the person to comply with the requirement within the period specified by the court.

(5) A certification of the Monitor under subsection (1) is to be taken to be evidence that a person has failed to comply with a requirement under section 18 or 19, unless the person adduces evidence that—

(a) the requirement was complied with; or

(b) there was a reasonable excuse for failing to comply with the requirement.

(6) If a proceeding is brought under this section in relation to a failure to comply with a requirement, a person to whom the failure relates cannot be charged with an offence under section 18(2), 19(3) or 65 in respect of that failure.

101 Non-punitive orders—Corrective advertising orders

(1) A court may, on the application of the Monitor, make a corrective advertising order in relation to a person if the court is satisfied that the person has contravened, or has been involved in the contravention of, a pecuniary penalty provision.

(2) In this section, a corrective advertising order, in relation to a person, means—

(a) an order that requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified,



78

being information that the person has possession of or access to; or

(b) an order that requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.

(3) This section does not limit a court's powers under any other provision of this Act.

102 Punitive orders—Adverse publicity orders

(1) If in any proceedings under this Act—

(a) a person is found guilty of an offence against this Act; or

(b) a person is found to have contravened a pecuniary penalty provision—

the court, in addition to any other penalty it may fix or order it may make, may, on the application of the Monitor, make an adverse publicity order in relation to the person.

(2) In this section, an adverse publicity order, in relation to a person, means an order that—

(a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or

(b) requires the person to publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.



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(3) This section does not limit a court's powers under any other provision of this Act.

103 Defences

(1) Subject to subsection (2), in a prosecution under this Act, it is a defence if the accused establishes—

(a) that the contravention in respect of which the proceeding was instituted was due to a reasonable mistake of fact, including a mistake of fact caused by a reasonable reliance on information supplied by another person; or

(b) that—

(i) the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the control of the accused; and

(ii) the accused took reasonable precautions and exercised due diligence to avoid the contravention.

(2) In subsection (1)(a) and (b), another person does not include a person who was—

(a) an employee or an agent of the accused; or

(b) in the case of an accused being a body corporate, an officer, employee or agent of the accused—

at the time when the contravention occurred.

(3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the accused is not, without leave of the court, entitled to rely on that defence unless the accused



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has, not later than 14 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted, a notice in writing giving such information that would identify or assist in the identification of the other person as was then in the possession of the accused.

(4) In a proceeding under this Act for a contravention of section 31 committed by the publication of an advertisement, it is a defence if the accused establishes that—

(a) the accused is a person whose business is to publish or arrange for the publication of advertisements; and

(b) that the accused received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of this Act.

104 Findings in proceedings to be evidence

In a proceeding against a person under section 105, a finding of fact by the Court made in proceedings under section 95, 96, 97, 100, 101 or 102, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of this Act is evidence of that fact and the finding may be proved by production of a document under the seal of the Court from which the finding appears.

105 Orders against persons found to have contravened this Act

(1) In any proceedings for an offence against, or a contravention of, this Act, the court may make any order it considers fair if the court finds that—



81

(a) the person against whom the proceedings were brought (the accused) has contravened a provision of this Act; and

(b) another person (the injured person) has suffered or may suffer loss or damage as a result of the contravention of this Act.

(2) Without limiting subsection (1), the orders that may be made under this section include—

(a) an order that the whole or any part of a contract between the accused and the injured person which is affected by the contravention or any agreement collateral to such a contract is void on and from the time specified in the order; or

(b) an order that the contract or agreement is varied in the manner specified in the order and may specify in the order that the variation takes effect from the time specified in the order; or

(c) an order that all or any of the provisions in the contract are not to be enforced; or

(d) an order that the accused refund to the injured person money paid by that person under the contract or agreement; or

(e) an order that the accused pay the amount of any loss or damage suffered by the injured person as a result of the breach to the injured person; or

(f) an order that the accused supply services required to be supplied under the contract or agreement to the injured person; or

(g) an order declaring that the accused has contravened a provision of this Act.

(3) In any proceedings under section 95 or 97, if the Court finds that—



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(a) a party to the proceedings has contravened the provisions of this Act; and

(b) that another person has suffered or is likely to suffer loss or damage as a result of that contravention—

the Court may make any order against the party to the proceedings that might be made against an accused under subsection (1).

(4) A reference in this section to a contract does not include a reference to a contract of insurance.

(5) The Court may also make an order under this section against a person involved in a contravention of a provision of this Act.

106 Public warning statements

If satisfied that it is in the public interest to do so, the Monitor may publish a public statement or issue a public warning, identifying and giving information about the following—

(a) price exploitation and prohibited conduct and persons who engage in those practices;

(b) any other matter that adversely affects or may adversely affect the interests of persons in connection with the acquisition by them of insurance services.

107 Complaints and evidence are privileged

If a person in good faith—

(a) makes a complaint to the Monitor under section 44; or

(b) produces or gives a document or any information or evidence to the Monitor or an inspector in relation to a matter that



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constitutes or may constitute a contravention of this Act—

the person is not liable in any way for any loss, damage or injury suffered by another person by reason only of the making of that complaint or the production or giving of that document, information or evidence.

__________________



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PART 9—GENERAL

108 When is a person not liable?

(1) A person is not liable to be prosecuted for an offence for a contravention of a provision of this Act or to pay a pecuniary penalty or award of compensation under this Act if—

(a) conduct which is a contravention of this Act is substantially the same as conduct constituting a contravention of any other Victorian law or of a law of the Commonwealth; and

(b) the conduct may make the person liable to prosecution for an offence or to pay a pecuniary penalty or award of compensation under any other Victorian law or a law of the Commonwealth; and

(c) the person has been convicted of the offence or ordered to pay a pecuniary penalty or award of compensation under that other Victorian law or law of the Commonwealth.

(2) This provision is to be construed as being in addition to section 34.

109 Power to make request to the Essential Services Commission

(1) The Monitor may, with the consent of the Minister administering the Essential Services Commission Act 2001, by notice in writing request the Essential Services Commission—

(a) to provide to the Monitor any information specified in the notice which is in the possession of the Essential Services Commission; or



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(b) to obtain from any person and provide to the Monitor any information specified in the notice—

which the Monitor considers on reasonable grounds is necessary to enable the Monitor to perform his or her functions or exercise his or her powers under this Act.

(2) The Essential Services Commission must comply with a request under subsection (1).

110 Report

(1) The Monitor must, within 28 days after the end of each quarter, give the Minister a written report on the performance of the functions of the Monitor during the quarter.

(2) Without limiting subsection (1), a report must include particulars of—

(a) any notices given under section 29;

(b) any variations or revocations of notices given under section 29.

(3) As soon as practicable after the Minister receives a report under subsection (1), the Minister must publish the report.

(4) For the purposes of subsection (1), quarter means the period ending on each 30 March, 30 June, 30 September and 31 December in each year.

(5) The Minister may by written notice request the Monitor to provide a report to the Minister on the performance of the functions of the Monitor either generally or in respect of a specified matter.



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(6) A written notice under subsection (5) must specify—

(a) the matters to be addressed in the report; and

(b) the date by which the report must be provided to the Minister.

111 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or specially limited application;

(b) may differ according to differences in time, place or circumstance;

(c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or class of persons;

(d) may provide in a specified case or class of case for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to the extent specified;

(e) may confer powers or impose duties in connection with the regulations on any specified person or specified class of persons;



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(f) may apply, adopt or incorporate with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person—

(i) wholly or partially or as amended by the regulations; or

(ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or

(iii) as formulated, issued, prescribed or published from time to time;

(g) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations.

112 Amendment of the Australian Consumer Law and Fair Trading Act 2012

After section 134(2)(b) of the Australian Consumer Law and Fair Trading Act 2012 insert—

"(ba) any amount ordered by a court under section 80 or 81 of the Fire Services Levy Monitor Act 2012 to be paid into the Fund;".

113 Amendment of the Essential Services Commission Act 2001

(1) After section 10(la) of the Essential Services Commission Act 2001 insert—

"(lb) when requested to do so by the Fire Services Levy Monitor under section 109 of the Fire Services Levy Monitor Act 2012, provide, or obtain and provide, information to the Fire



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Services Levy Monitor as specified in a notice under that section;".

(2) Section 10(lb) of the Essential Services Commission Act 2001 is repealed.

114 Amendment of the Fire Services Property Levy Act 2012

(1) In section 85 of the Fire Services Property Levy Act 2012 insert the following definition—

"fire services levy has the same meaning as it has in section 3 of the Fire Services Levy Monitor Act 2012;".

(2) In the Fire Services Property Levy Act 2012—

(a) in section 36(2)(a) after "under" insert "the";

(b) in section 76(2) for "addressed to the" substitute "addressed to";

(c) in section 110(2) for "is" substitute "are".

115 Amendment of Public Administration Act 2004

(1) After section 16(1)(f) of the Public Administration Act 2004 insert—

"(faa) the Fire Services Levy Monitor in relation to the office of the Fire Services Levy Monitor within the meaning of the Fire Services Levy Monitor Act 2012;".

(2) Section 16(1)(faa) of the Public Administration Act 2004 is repealed.

116 Transitional provisions

After section 137 of the Australian Consumer Law and Fair Trading Act 2012 insert—

"Division 6—Fire Services Levy Monitor Act 2012

137A Director to succeed Fire Services Levy Monitor



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(1) In this section, relevant day means 31 December 2014.

(2) The Director is, by force of this section, substituted as a party to any proceedings pending or existing in any court immediately before the relevant day to which the Fire Services Levy Monitor was a party.

(3) Any act, matter or thing of a continuing nature which was commenced by the Fire Services Levy Monitor before the relevant day may be continued and completed by the Director.".

117 Sunset

This Act is repealed on 31 December 2014.═══════════════



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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 14 November 2012

Legislative Council: 29 November 2012

The long title for the Bill for this Act was "A Bill for an Act to provide for the establishment, functions and powers of the Fire Services Levy Monitor, to consequentially amend certain Acts and for other purposes."

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