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This is a Bill, not an Act. For current law, see the Acts databases.
Fair Trading Amendment (Australian
Consumer Law) Bill 2010
No , 2010
A Bill for
An Act to apply the Australian Consumer Law as a law of New South Wales and to
amend the Fair Trading Act 1987 and other legislation consequentially; and for other
purposes.
Clause 1 Fair Trading Amendment (Australian Consumer Law) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Fair Trading Amendment (Australian Consumer Law) 3
Act 2010. 4
2 Commencement 5
This Act commences on 1 January 2011. 6
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
Schedule 1 Amendment of Fair Trading Act 1987 1
No 68 2
[1] Section 3 Extent to which Act binds the Crown 3
Insert "(other than the ACL)" after "This Act" in section 3 (1). 4
[2] Section 3, note 5
Insert at the end of the section: 6
Note. Division 4 of Part 3 provides for the application of the ACL to the 7
Crown. 8
[3] Section 4 Definitions 9
Omit "except in so far as the context or subject-matter otherwise indicates or 10
requires" from section 4 (1). 11
Insert instead "except the ACL". 12
[4] Section 4 (1), definition of "advisory council" 13
Omit "Divisions 5-7 or 9 of Part 2". Insert instead "Divisions 2-5 of Part 2B". 14
[5] Section 4 (1) 15
Omit the definitions of banning order, consumer, document, goods, product 16
information standard, product safety standard, send, unsolicited goods and 17
unsolicited services. 18
[6] Section 4 (1) 19
Insert in alphabetical order: 20
consumer has the same meaning as in section 3 of the ACL. 21
consumer contract has the same meaning as in section 2 (1) of 22
the ACL. 23
consumer goods has the same meaning as in section 2 (1) of the 24
ACL. 25
defective goods action has the same meaning as in section 2 (1) 26
of the ACL. 27
document has the same meaning as in section 2 (1) of the ACL. 28
embargo notice means a notice given under section 23D. 29
goods has the same meaning as in section 2 (1) of the ACL. 30
interim ban has the same meaning as in section 2 (1) of the ACL. 31
permanent ban has the same meaning as in section 2 (1) of the 32
ACL. 33
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
product related service has the same meaning as in section 2 (1) 1
of the ACL. 2
recall notice has the same meaning as in section 2 (1) of the ACL. 3
rely on has the same meaning as in section 2 (1) of the ACL. 4
safety warning notice means a notice published under 5
section 129 of the ACL. 6
the ACL means the Australian Consumer Law (NSW). 7
unsafe consumer goods means consumer goods that will or may 8
cause injury to any person or a foreseeable use (or misuse) of 9
which will or may cause injury to any person. 10
unsafe product related services means product related services 11
of a particular kind supplied in trade or commerce, a result of the 12
supply of which is that: 13
(a) any consumer goods will or may cause injury to any 14
person, or 15
(b) a reasonably foreseeable use (including misuse) of any 16
consumer goods will or may cause injury to any person. 17
[7] Section 4 (2) 18
Omit the subsection. Insert instead: 19
(2) Sections 2 (2) (Definitions), 11 (References to acquisition, 20
supply and re-supply) and 13 (Loss or damage to include injury) 21
of the ACL apply to all of the provisions of this Act in the same 22
way as those sections apply to the provisions of the ACL. 23
[8] Section 4 (3)-(5) 24
Omit the subsections. 25
[9] Section 4 (6) 26
Insert "(other than the ACL)" after "this Act". 27
[10] Section 4 (9) and (10) 28
Insert after section 4 (8): 29
(9) In this Act, a reference to a particular section of this Act does not 30
include a reference to the same section of the ACL. 31
Note. For example, a reference to section 66 of this Act does not include 32
a reference to section 66 of the ACL. 33
(10) Notes included in this Act do not form part of this Act. 34
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
[11] Section 5 Meaning of "consumer" 1
Omit the section. 2
[12] Section 9 Functions of Director-General 3
Insert after section 9 (3): 4
(4) The Director-General is to have regard, in carrying out his or her 5
functions under this Act, to the need for communication, 6
co-operation and co-ordination in relation to relevant 7
co-operative legislative schemes. 8
[13] Section 9A Exchange of information 9
Insert in alphabetical order in section 9A (7): 10
information includes reports, recommendations, opinions, 11
assessments and operational plans. 12
[14] Part 2, Division 3, heading 13
Omit the heading. Insert instead: 14
Part 2A Provisions relating to investigations 15
Division 1 Powers relating to investigations 16
[15] Section 19 Powers of entry 17
Omit "or" where lastly occurring in section 19 (3) (c) and insert at the end of 18
section 19 (3) (d): 19
, or 20
(e) film, photograph, videotape or otherwise record a still or 21
moving image of any thing (other than a document) for the 22
purpose of the investigation of any matter relating to 23
consumer goods or product related services. 24
[16] Section 19A 25
Omit section 19A. Insert instead: 26
19A Powers of search and seizure under search warrant 27
(1) In this section: 28
authorised officer has the same meaning as in the Law 29
Enforcement (Powers and Responsibilities) Act 2002. 30
place includes a vehicle, vessel or aircraft. 31
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(2) An investigator may apply to an authorised officer for the issue 1
of a search warrant if the investigator believes on reasonable 2
grounds that: 3
(a) there is evidence of a contravention of a provision of this 4
Act on any place or land, or 5
(b) there are consumer goods of a particular kind being 6
supplied in trade or commerce in or from any place or land 7
that will or may cause injury to any person or a reasonably 8
foreseeable use (or misuse) of which will or may cause 9
injury to any person, or 10
(c) there are product related services of a particular kind being 11
supplied in trade or commerce in or from any place or land 12
and, as a result of those services being supplied: 13
(i) any consumer goods will or may cause injury to any 14
person, or 15
(ii) a reasonably foreseeable use (including misuse) of 16
any consumer goods will or may cause injury to any 17
person. 18
(3) An authorised officer to whom such an application is made may, 19
if satisfied that there are reasonable grounds for doing so, issue a 20
search warrant authorising any investigator: 21
(a) to enter the place or land specified in the warrant, and 22
(b) to search for evidence of any of the matters referred to in 23
subsection (2), and 24
(c) to exercise the powers of an investigator under 25
subsection (4). 26
(4) An investigator executing a search warrant issued under this 27
section may: 28
(a) examine anything (whether or not specified in the warrant) 29
that the investigator believes on reasonable grounds may 30
provide evidence of any of the matters referred to in 31
subsection (2), and 32
(b) seize anything (whether or not specified in the warrant) 33
that the investigator believes on reasonable grounds is 34
connected with any of the matters referred to in 35
subsection (2). 36
(5) The power to seize anything that is connected with a matter 37
referred to in subsection (2) includes a power to seize anything 38
that will provide evidence of that matter. 39
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(6) An investigator who seizes any consumer goods, or equipment 1
used in the manufacturing, processing or storage of consumer 2
goods, under this section must provide a receipt for the goods or 3
equipment. 4
(7) Division 4 of Part 5 of the Law Enforcement (Powers and 5
Responsibilities) Act 2002 applies to a search warrant issued 6
under this section. 7
(8) Nothing in this section limits any of the other functions that may 8
be exercised by an investigator under this Part. 9
[17] Section 20 Power to obtain information, documents and evidence 10
Insert at the end of section 20 (1) (d): 11
, or 12
(e) unsafe consumer goods, or 13
(f) unsafe product related services. 14
[18] Section 21 Inspection of documents by Director-General and others 15
Omit "section 20 or 23A" wherever occurring. 16
Insert instead "section 20 of this Act or section 219 of the ACL". 17
[19] Section 22 Preservation of secrecy 18
Omit "section 20 or 23A" wherever occurring. 19
Insert instead "section 20 of this Act or section 219 of the ACL". 20
[20] Part 2A, Divisions 2 and 3 21
Omit Division 3A of Part 2. Insert instead: 22
Division 2 Seized property and disposal of certain 23
property 24
23A Dealing with seized property 25
(1) This section applies to anything seized under the authority of a 26
search warrant issued for the purposes of section 19A. 27
(2) Anything seized must be returned to the person who had lawful 28
possession of the thing before it was seized if its retention as 29
evidence in proceedings for an offence against this or any other 30
Act is not required. 31
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(3) The Director-General may order that anything seized be sold, 1
destroyed or otherwise disposed of if: 2
(a) the thing is no longer required to be retained as evidence in 3
proceedings for an offence against this or any other Act, 4
and 5
(b) the person who had lawful possession of the thing before it 6
was seized cannot be found or does not wish to have the 7
thing returned. 8
(4) If the thing is disposed of by way of sale, the proceeds of sale are 9
to be paid to the Treasurer for payment into the Consolidated 10
Fund. 11
(5) This section does not apply to the following consumer goods: 12
(a) consumer goods that are the subject of an application 13
under section 23B that has not been determined, 14
(b) consumer goods that are the subject of an order under that 15
section authorising their disposal, 16
(c) consumer goods which the Director-General is satisfied 17
are unsafe consumer goods. 18
23B Court orders relating to disposal of certain consumer goods 19
(1) This section applies to consumer goods if: 20
(a) the consumer goods do not comply with a safety standard 21
that is in force for consumer goods of that kind and the 22
cause of that non-compliance cannot be remedied, or 23
(b) a permanent ban on consumer goods of that kind is in 24
force, or 25
(c) a recall notice for consumer goods of that kind is in force 26
and a defect or dangerous characteristic of such consumer 27
goods identified in the notice cannot be remedied, or 28
(d) the consumer goods are unsafe consumer goods. 29
(2) A court may make an order under this section only on the 30
application of the Director-General. 31
(3) If the court is satisfied that a person possesses or has control of 32
consumer goods of a particular kind to which this section applies 33
for the purposes of trade or commerce, the court may make an 34
order authorising one or more investigators to do the following in 35
accordance with any requirements specified in the order: 36
(a) to enter the premises of the person that are specified in the 37
order, 38
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(b) to search the premises for consumer goods of a kind 1
specified in the order and seize any such consumer goods 2
that are found at those premises, 3
(c) to destroy or otherwise dispose of any such consumer 4
goods that are so seized. 5
(4) The court may make an order authorising an investigator to 6
destroy or otherwise dispose of any consumer goods to which this 7
section applies that have been seized by an investigator under the 8
authority of a search warrant issued under section 19A. 9
(5) Before making an application under this section, the 10
Director-General must: 11
(a) take reasonable steps to discover who has an interest in the 12
consumer goods, and 13
(b) if it is practicable to do so, notify each person whom the 14
Director-General believes to have such an interest of the 15
proposed application. 16
(6) The Director-General must, in the application, identify each 17
person who the Director-General believes has an interest in the 18
consumer goods concerned and whom it was not considered 19
practicable to notify. 20
(7) A person who establishes to the satisfaction of the court that he 21
or she has an interest in the consumer goods concerned is entitled 22
to be heard in relation to the application. 23
(8) If goods are seized and disposed of by an investigator in 24
accordance with an order under this section, the person from 25
whom the goods were seized or, if that person was not entitled to 26
possession of the goods, the owner of the goods is liable to pay 27
the costs reasonably incurred by the investigator in seizing and 28
disposing of the goods. 29
(9) An amount payable by a person under this section may be 30
recovered as a debt due to the Crown in a court of competent 31
jurisdiction. 32
23C Disposal of property 33
(1) The Director-General may order that anything that the 34
Director-General has obtained in the course of an investigation 35
under this Act (other than anything seized by an investigator 36
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
under the authority of a search warrant issued under section 19A) 1
be sold, destroyed or otherwise disposed of if: 2
(a) the thing is not required to be retained as evidence in 3
proceedings for an offence against this or any other Act, 4
and 5
(b) the person who had lawful possession of the thing before it 6
came into the Director-General's possession cannot be 7
found or does not wish to have the thing returned. 8
(2) If the thing is disposed of by way of sale, the proceeds of sale are 9
to be paid to the Treasurer for payment into the Consolidated 10
Fund. 11
Division 3 Embargo notices 12
23D Embargo notices 13
(1) An investigator who enters premises under a search warrant may 14
give an embargo notice to the occupier of the premises if the 15
investigator reasonably believes that: 16
(a) unsafe consumer goods or unsafe product related services 17
are being supplied from the premises in trade or 18
commerce, and 19
(b) it is not practicable to seize and remove: 20
(i) those unsafe consumer goods or equipment used in 21
the manufacturing, processing or storage of those 22
unsafe consumer goods, or 23
(ii) equipment used in connection with the supply of 24
those unsafe product related services. 25
(2) An embargo notice may do any one or more of the following: 26
(a) require that specified consumer goods must not be: 27
(i) supplied in or from the premises, or 28
(ii) transferred, moved, altered, destroyed or otherwise 29
interfered with, 30
during the period specified in the notice, 31
(b) require that specified equipment: 32
(i) used in the manufacturing, processing or storage of 33
specified consumer goods, or 34
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(ii) used in connection with the supply of specified 1
product related services, 2
must not be transferred, moved, altered, destroyed or 3
otherwise interfered with during the period specified in the 4
notice, 5
(c) require that specified product related services must not be 6
supplied in or from the premises during the period 7
specified in the notice. 8
(3) An embargo notice must: 9
(a) be in writing, and 10
(b) explain the effect of section 23G. 11
(4) The investigator may give an embargo notice to the occupier of 12
the premises: 13
(a) by causing a copy of the notice to be served on the 14
occupier, or 15
(b) if the occupier cannot be located after reasonable steps 16
have been taken to do so, by causing a copy of the notice: 17
(i) to be served on a person on the premises who is 18
reasonably believed to be in regular contact with the 19
occupier, or 20
(ii) to be affixed to the premises, or to a thing on the 21
premises, in a prominent position. 22
(5) Despite anything in any other law, a contract for a supply of 23
consumer goods or product related services that is prohibited by 24
an embargo notice is void. 25
(6) If consumer goods are supplied in contravention of an embargo 26
notice: 27
(a) the supplier must immediately return or refund to the 28
person who acquired the goods any consideration (or the 29
value of any consideration) that that person gave: 30
(i) under an agreement for the supply, or 31
(ii) under a related contract or instrument, and 32
(b) if the goods have been removed from the premises in 33
which they were subject to the embargo notice, the person 34
who acquired the goods must: 35
(i) return the goods to the premises, or 36
(ii) notify the supplier of the place where the supplier 37
may collect the goods, and 38
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(c) if paragraph (b) (ii) applies, the supplier must collect the 1
goods from the place notified to the supplier and return 2
them to the premises. 3
23E Embargo period for embargo notices 4
(1) The embargo period specified in an embargo notice must not be 5
longer than: 6
(a) in a case where the investigator giving the notice 7
secures consumer goods or equipment under this 8
Division--24 hours, or 9
(b) in any other case--28 days. 10
(2) However, an investigator may, before the embargo period ends, 11
apply to a Magistrate for an extension of the period. 12
(3) If an investigator intends to make an application to extend the 13
embargo period, the investigator must, before making the 14
application, notify the occupier of the premises to which the 15
embargo notice relates of that intention. 16
(4) The occupier of the premises is entitled to be heard in relation to 17
the application. 18
(5) The Magistrate may extend the embargo period for a specified 19
period if satisfied that the extension is necessary in all the 20
circumstances. 21
23F Multiple embargo notices for the same consumer goods or 22
product related services 23
An investigator must not give an embargo notice in relation to 24
consumer goods, equipment or product related services of a 25
particular kind if: 26
(a) an embargo notice has already been given in relation to 27
consumer goods, equipment or product related services of 28
that kind, and 29
(b) the embargo period for the embargo notice that has been 30
given ended less than 5 days earlier. 31
23G Powers of investigators to secure consumer goods 32
(1) This section applies if: 33
(a) an embargo notice has been issued in relation to consumer 34
goods or equipment, and 35
(b) the investigator who gave the notice believes on 36
reasonable grounds that it is necessary to secure the 37
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
consumer goods or equipment in order to ensure that the 1
notice is complied with. 2
(2) The investigator may, during the embargo period for the embargo 3
notice, do anything that the investigator thinks is necessary to 4
secure those consumer goods or that equipment (whether by 5
locking them up, placing a guard or otherwise). 6
23H Consent to deal with embargoed consumer goods or equipment or 7
supply product related services 8
(1) If an embargo notice relating to consumer goods or equipment 9
has been given, the owner of the goods or equipment or another 10
person who has an interest in the goods or equipment may, in 11
writing, request consent to do any of the following: 12
(a) to supply the goods, 13
(b) to transfer, move, alter, destroy or otherwise interfere with 14
the goods or equipment. 15
(2) If an embargo notice relating to product related services has been 16
given, the following persons may, in writing, request consent to 17
supply the services: 18
(a) the person who would, but for the embargo notice, supply 19
the services, 20
(b) another person whose interests would be affected if the 21
services were not supplied. 22
(3) Consent under this section may only be given by the Minister, the 23
Director-General or an investigator and must be in writing. 24
23I Compliance with embargo notices 25
(1) A person must not knowingly cause or permit anything to be done 26
in contravention of an embargo notice. 27
Maximum penalty: 28
(a) in the case of a person other than a body corporate-- 29
40 penalty units, or 30
(b) in the case of a body corporate--200 penalty units. 31
(2) Subsection (1) does not apply in relation to: 32
(a) an act done in accordance with a consent given under 33
section 23H, or 34
(b) if the embargo notice relates to consumer goods or 35
equipment, an act done for the purpose of protecting or 36
preserving the consumer goods or equipment. 37
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
[21] Part 2, Division 4, heading 1
Omit the heading. Insert instead: 2
Part 2B Products Safety Committee and advisory 3
bodies 4
Division 1 Products Safety Committee and advisory 5
committees 6
[22] Section 24 Products Safety Committee 7
Omit section 24 (1A). Insert instead: 8
(1A) Without limiting subsection (1), the Products Safety Committee 9
has the function of considering any questions referred to the 10
Committee under section 42. 11
[23] Part 2B, Divisions 2-5 12
Renumber Divisions 5, 6, 7 and 9 of Part 2 as Divisions 2, 3, 4 and 5 of Part 2B 13
and renumber sections 25M-25O as sections 25J-25L, respectively. 14
[24] New Part 3 15
Insert after section 25L (as renumbered by this Schedule): 16
Part 3 The Australian Consumer Law 17
Division 1 Definitions 18
26 Definitions 19
(1) In this Part, unless the contrary intention appears: 20
application law means: 21
(a) a law of a participating jurisdiction that applies the 22
Australian Consumer Law, either with or without 23
modifications, as a law of the participating jurisdiction, or 24
(b) any regulations or other legislative instrument made under 25
a law described in paragraph (a), or 26
(c) the Australian Consumer Law, applying as a law of the 27
participating jurisdiction, either with or without 28
modifications. 29
Australian Consumer Law means (according to the context): 30
(a) the Australian Consumer Law text, or 31
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(b) the Australian Consumer Law text, applying as a law of a 1
participating jurisdiction, either with or without 2
modifications. 3
Australian Consumer Law text means the text described in 4
section 27. 5
instrument means any document whatever, including the 6
following: 7
(a) an Act or an instrument made under an Act, 8
(b) a law of this jurisdiction or an instrument made under such 9
a law, 10
(c) an award or other industrial determination or order, or an 11
industrial agreement, 12
(d) any other order (whether executive, judicial or otherwise), 13
(e) a notice, certificate or licence, 14
(f) an agreement, 15
(g) an application made, information or complaint laid, 16
affidavit sworn, or warrant issued, for any purpose, 17
(h) an indictment, presentment, summons or writ, 18
(i) any other pleading in, or process issued in connection with, 19
a legal or other proceeding. 20
Intergovernmental Agreement means the Intergovernmental 21
Agreement for the Australian Consumer Law made on 22
2 July 2009 between the Commonwealth, the State of New South 23
Wales, the State of Victoria, the State of Queensland, the State of 24
Western Australia, the State of South Australia, the State of 25
Tasmania, the Australian Capital Territory and the Northern 26
Territory of Australia, as in force for the time being. 27
jurisdiction means a State or the Commonwealth. 28
law, in relation to a Territory, means a law of, or in force in, that 29
Territory. 30
modifications includes additions, omissions and substitutions. 31
month means a period commencing at the beginning of a day of 32
one of the 12 months of the year and ending immediately before 33
the beginning of the corresponding day of the next month or, if 34
there is no such corresponding day, ending at the expiration of the 35
next month. 36
participating jurisdiction means a jurisdiction that is a party to 37
the Intergovernmental Agreement and applies the Australian 38
Consumer Law as a law of the jurisdiction, either with or without 39
modifications. 40
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
proclamation means a proclamation of the Governor published 1
on the NSW legislation website. 2
State includes a Territory. 3
Territory means the Australian Capital Territory or the Northern 4
Territory of Australia. 5
this jurisdiction means New South Wales. 6
(2) Terms used in this Part and also in the Australian Consumer Law 7
(NSW) have the same meanings in this Part as they have in that 8
Law. 9
(3) For the purposes of this Part: 10
(a) a jurisdiction is taken to have applied the Australian 11
Consumer Law as a law of the jurisdiction if a law of the 12
jurisdiction substantially corresponds to the provisions of 13
the Australian Consumer Law text, as in force from time to 14
time, and 15
(b) that corresponding law is taken to be the Australian 16
Consumer Law, or the Australian Consumer Law text, 17
applying as a law of that jurisdiction. 18
Division 2 Application of Australian Consumer Law 19
27 The Australian Consumer Law text 20
The Australian Consumer Law text consists of: 21
(a) Schedule 2 to the Competition and Consumer Act 2010 of 22
the Commonwealth, and 23
(b) the regulations under section 139G of that Act. 24
28 Application of Australian Consumer Law 25
(1) The Australian Consumer Law text, as in force from time to time: 26
(a) applies as a law of this jurisdiction, and 27
(b) as so applying may be referred to as the Australian 28
Consumer Law (NSW), and 29
(c) as so applying is a part of this Act. 30
(2) This section has effect subject to sections 29, 30 and 31. 31
29 Future modifications of Australian Consumer Law text 32
(1) A modification made by a Commonwealth law to the Australian 33
Consumer Law text after the commencement of this section does 34
not apply under section 28 if the modification is declared by a 35
proclamation to be excluded from the operation of that section. 36
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(2) A proclamation under subsection (1) has effect only if published 1
or notified no later than 2 months after the date of the 2
modification. 3
(3) Subsection (1) ceases to apply to the modification if a further 4
proclamation so provides. 5
(4) For the purposes of this section, the date of the modification is the 6
date on which the Commonwealth Act effecting the modification 7
receives the Royal Assent or the regulation effecting the 8
modification is registered under the Legislative Instruments Act 9
2003 of the Commonwealth. 10
30 Meaning of generic terms in Australian Consumer Law for 11
purposes of this jurisdiction 12
(1) In the Australian Consumer Law (NSW): 13
regulator means the Director-General. 14
(2) For the purposes of the application of the Australian Consumer 15
Law (NSW), court means, unless otherwise expressly provided 16
by this Act: 17
(a) the Local Court, or 18
(b) the District Court, or 19
(c) the Supreme Court. 20
(3) In the following provisions of the Australian Consumer Law 21
(NSW), court means the Supreme Court: 22
(a) section 218, 23
(b) Division 2 of Part 5-2, 24
(c) Division 4 of Part 5-2, 25
(d) sections 246, 247, 248 and 250. 26
(4) In Part 2-3 of the Australian Consumer Law (NSW), court 27
includes the Tribunal. 28
(5) Subsections (2)-(4) are subject to any jurisdictional limits on the 29
court concerned or the Tribunal imposed by any other Act. 30
31 Interpretation of Australian Consumer Law 31
(1) The Acts Interpretation Act 1901 of the Commonwealth applies 32
as a law of this jurisdiction to the Australian Consumer Law 33
(NSW). 34
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(2) For the purposes of subsection (1), the Commonwealth Act 1
mentioned in that subsection applies as if: 2
(a) the statutory provisions in the Australian Consumer Law 3
(NSW) were a Commonwealth Act, and 4
(b) the regulations in the Australian Consumer Law (NSW) or 5
instruments under that Law were regulations or 6
instruments under a Commonwealth Act. 7
(3) The Interpretation Act 1987 of New South Wales does not apply 8
to: 9
(a) the Australian Consumer Law (NSW), or 10
(b) any instrument under that Law. 11
32 Application of Australian Consumer Law 12
(1) The Australian Consumer Law (NSW) applies to and in relation 13
to: 14
(a) persons carrying on business within this jurisdiction, or 15
(b) bodies corporate incorporated or registered under the law 16
of this jurisdiction, or 17
(c) persons ordinarily resident in this jurisdiction, or 18
(d) persons otherwise connected with this jurisdiction. 19
(2) Subject to subsection (1), the Australian Consumer Law (NSW) 20
extends to conduct, and other acts, matters and things, occurring 21
or existing outside or partly outside this jurisdiction (whether 22
within or outside Australia). 23
Division 3 References to Australian Consumer Law 24
33 References to Australian Consumer Law 25
(1) A reference in any instrument to the Australian Consumer Law is 26
a reference to the Australian Consumer Law of any or all of the 27
participating jurisdictions. 28
(2) Subsection (1) has effect except so far as the contrary intention 29
appears in the instrument or the context of the reference 30
otherwise requires. 31
34 References to Australian Consumer Law of other jurisdictions 32
(1) This section has effect for the purposes of an Act, a law of this 33
jurisdiction or an instrument under an Act or such a law. 34
(2) If a law of a participating jurisdiction other than this jurisdiction 35
provides that the Australian Consumer Law text as in force for 36
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the time being applies as a law of that jurisdiction, the Australian 1
Consumer Law of that jurisdiction is the Australian Consumer 2
Law text, applying as a law of that jurisdiction. 3
Division 4 Application of Australian Consumer Law to 4
Crown 5
35 Division does not apply to Commonwealth 6
In this Division, participating jurisdiction or other jurisdiction 7
does not include the Commonwealth. 8
36 Application law of this jurisdiction 9
The application law of this jurisdiction binds (so far as the 10
legislative power of Parliament permits) the Crown in right of 11
this jurisdiction and of each other jurisdiction, so far as the 12
Crown carries on a business, either directly or by an authority of 13
the jurisdiction concerned. 14
37 Application law of other jurisdictions 15
(1) The application law of each participating jurisdiction other than 16
this jurisdiction binds the Crown in right of this jurisdiction, so 17
far as the Crown carries on a business, either directly or by an 18
authority of this jurisdiction. 19
(2) If, because of this Part, a provision of the law of another 20
participating jurisdiction binds the Crown in right of this 21
jurisdiction, the Crown in that right is subject to that provision 22
despite any prerogative right or privilege. 23
38 Activities that are not business 24
(1) For the purposes of sections 36 and 37, the following do not 25
amount to carrying on a business: 26
(a) imposing or collecting: 27
(i) taxes, or 28
(ii) levies, or 29
(iii) fees for authorisations, 30
(b) granting, refusing to grant, revoking, suspending or 31
varying authorisations (whether or not they are subject to 32
conditions), 33
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(c) a transaction involving: 1
(i) only persons who are all acting for the Crown in the 2
same right (and none of whom is an authority of a 3
State), or 4
(ii) only persons who are all acting for the same 5
authority of a State, or 6
(iii) only the Crown in right of a State and one or more 7
non-commercial authorities of that State, or 8
(iv) only non-commercial authorities of the same State, 9
(d) the acquisition of primary products by a government body 10
under legislation, unless the acquisition occurs because: 11
(i) the body chooses to acquire the products, or 12
(ii) the body has not exercised a discretion that it has 13
under the legislation that would allow it not to 14
acquire the products. 15
(2) Subsection (1) does not limit the things that do not amount to 16
carrying on a business for the purposes of sections 36 and 37. 17
(3) In this section: 18
acquisition of primary products by a government body under 19
legislation includes vesting of ownership of primary products in 20
a government body by legislation. 21
authorisation means a licence, permit, certificate or other 22
authorisation that allows the holder of the authorisation to supply 23
goods or services. 24
government body means a State or an authority of a State. 25
primary products means: 26
(a) agricultural or horticultural produce, or 27
(b) crops, whether on or attached to the land or not, or 28
(c) animals (whether dead or alive), or 29
(d) the bodily produce (including natural increase) of animals. 30
(4) For the purposes of this section, an authority of a State is 31
non-commercial if: 32
(a) it is constituted by only one person, and 33
(b) it is neither a trading corporation nor a financial 34
corporation. 35
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
39 Crown not liable to pecuniary penalty or prosecution 1
(1) Nothing in the application law of this jurisdiction makes the 2
Crown in any capacity liable to a pecuniary penalty or to be 3
prosecuted for an offence. 4
(2) Without limiting subsection (1), nothing in the application law of 5
a participating jurisdiction makes the Crown in right of this 6
jurisdiction liable to a pecuniary penalty or to be prosecuted for 7
an offence. 8
(3) The protection in subsection (1) or (2) does not apply to an 9
authority of any jurisdiction. 10
Division 5 Miscellaneous 11
40 Conferral of functions and powers on certain bodies 12
(1) The authorities and officers of the Commonwealth referred to in 13
the Australian Consumer Law (NSW) have the functions and 14
powers conferred or expressed to be conferred on them under the 15
Australian Consumer Law (NSW). 16
(2) In addition to the powers mentioned in subsection (1), the 17
authorities and officers referred to in that subsection have power 18
to do all things necessary or convenient to be done in connection 19
with the performance of the functions and exercise of the powers 20
referred to in that subsection. 21
41 No doubling-up of liabilities 22
(1) If: 23
(a) an act or omission is an offence against the Australian 24
Consumer Law (NSW) and is also an offence against an 25
application law of another participating jurisdiction, and 26
(b) the offender has been punished for the offence under the 27
application law of the other jurisdiction, 28
the offender is not liable to be punished for the offence against the 29
Australian Consumer Law (NSW). 30
(2) If a person has been ordered to pay a pecuniary penalty under the 31
application law of another participating jurisdiction, the person is 32
not liable to a pecuniary penalty under the Australian Consumer 33
Law (NSW) in respect of the same conduct. 34
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[25] Existing Part 3, heading 1
Omit the heading. Insert instead: 2
Part 4 NSW consumer safety and information 3
requirements 4
Note. The provisions of this Part supplement the provisions of Part 3-3 of the ACL. 5
Part 3-3 of the ACL deals with the safety of consumer goods and product related 6
services and includes provisions relating to safety standards, bans on the supply of 7
certain consumer goods and product related services for safety reasons, recall of 8
consumer goods, safety warning notices and reporting by suppliers of death, serious 9
injury or illness associated with consumer goods or product related services. 10
Division 1 Provisions relating to supply of unsafe 11
goods and services 12
[26] Existing Part 3, Divisions 1 and 2 13
Omit the Divisions, except sections 28 and 29, and renumber those sections as 14
sections 42 and 43, respectively, under Division 1 of new Part 4 (as inserted 15
by item [25]). 16
[27] Section 42 (as renumbered by this Schedule) 17
Omit section 42 (1). Insert instead: 18
(1) The Minister, or the Director-General with the approval of the 19
Minister, may refer to the Products Safety Committee for 20
consideration any of the following questions: 21
(a) whether consumer goods of a particular kind supplied in 22
trade or commerce, or a reasonably foreseeable use (or 23
misuse) of any such goods, will or may cause injury to any 24
person, 25
(b) whether, as a result of the supply of product related 26
services of a particular kind in trade or commerce, any 27
consumer goods, or a reasonably foreseeable use (or 28
misuse) of any such goods, will or may cause injury to any 29
person, 30
(c) whether a compulsory recall notice in relation to specified 31
consumer goods should be issued, 32
(d) whether an interim or permanent ban on specified 33
consumer goods or product related services should be 34
imposed, 35
(e) whether a safety warning notice in relation to specified 36
consumer goods or product related services should be 37
published, 38
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(f) whether any other action should be taken in relation to the 1
supply of consumer goods or product related services. 2
[28] Section 42 (2) (as renumbered by this Schedule) 3
Insert "or services" after "goods". 4
[29] Section 42 (4) (as renumbered by this Schedule) 5
Omit the subsection. 6
[30] Section 42 (6) (as renumbered by this Schedule) 7
Omit "making under section 30 of an interim order prohibiting or restricting 8
supply of the goods". 9
Insert instead "imposition of an interim ban in relation to the goods or 10
services". 11
[31] Section 42 (as renumbered by this Schedule) 12
Insert after section 42 (11): 13
(12) For the avoidance of doubt, the Minister may issue an interim ban 14
in relation to consumer goods or product related services: 15
(a) even if the matter has not been referred to the Products 16
Safety Committee for consideration, or 17
(b) even if the matter has been referred to the Products Safety 18
Committee for consideration but it has not made its report, 19
or 20
(c) on the recommendation of the Products Safety Committee, 21
whether or not it has made a report. 22
(13) The Minister may refer any report or recommendation of the 23
Products Safety Committee made under this section to the 24
Commonwealth Minister (within the meaning of the ACL) for 25
information or if satisfied that the report or recommendation 26
relates to a matter that could be dealt with more appropriately by 27
the Commonwealth Minister. 28
Note. There are certain powers under the ACL that may only be 29
exercised by the Commonwealth Minister, for example, the imposition of 30
permanent bans and the making of safety standards. 31
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
[32] Section 44 1
Insert after section 43 (as renumbered by this Schedule): 2
44 Method of notifying safety warning notices 3
In addition to being published on the internet, a safety warning 4
notice may be published in any other manner that the Minister 5
considers appropriate. 6
[33] Existing Part 3, Division 3 7
Renumber the Division as Division 2 of new Part 4. 8
[34] Existing sections 34-36D 9
Omit the sections. 10
[35] Existing sections 36E-37 11
Renumber those sections as sections 45-47. 12
[36] Section 45 (as renumbered by this Schedule) 13
Omit "a recall order or are voluntarily recalled under section 36D". 14
Insert instead "a recall notice". 15
[37] Section 46 (as renumbered by this Schedule) 16
Omit "section 35 (1) (c)" wherever occurring. 17
Insert instead "section 123 (1) (c) of the ACL". 18
[38] Section 46 (3) (as renumbered by this Schedule) 19
Omit "recall order" wherever occurring. Insert instead "recall notice". 20
[39] Existing Part 4 Consumer protection 21
Omit the Part. 22
[40] Part 5 Fair trading 23
Omit the Part. 24
[41] Part 5A Trading stamp schemes and similar schemes 25
Omit the Part. 26
[42] Part 5B Lay-by sales 27
Omit the Part. 28
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
[43] Part 5C, heading 1
Omit the heading. Insert instead: 2
Division 3 Employment placement services 3
[44] Part 5C 4
Renumber sections 60P-60R as sections 48-50, respectively, of Division 3 of 5
new Part 4. 6
[45] Part 5D Pyramid selling 7
Omit the Part. 8
[46] Part 5E, heading 9
Omit the heading. Insert instead: 10
Division 4 Industry code for motor vehicle insurers and 11
repairers 12
[47] Part 5E 13
Renumber sections 60V-60Y as sections 51-54, respectively, of Division 4 of 14
new Part 4. 15
[48] Section 51 (as renumbered by this Schedule) 16
Omit "section 60X (1)" from the definition of applicable industry code of 17
conduct. 18
Insert instead "section 53 (1)". 19
[49] Part 5F, heading 20
Omit the heading. Insert instead: 21
Division 5 Funeral goods and services 22
[50] Part 5F 23
Renumber sections 60Z-60ZB as sections 55-57, respectively, of Division 5 24
of new Part 4. 25
[51] Section 55 (as renumbered by this Schedule) 26
Omit section 55 (4). Insert instead: 27
(4) This section does not limit section 134 (Making information 28
standards for goods and services) of the ACL. 29
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[52] Section 56 (as renumbered by this Schedule) 1
Omit "section 60Z" from section 56 (1). Insert instead "section 55". 2
[53] New Part 4, Divisions 3, 4 and 5 3
Omit "Part" wherever occurring except wherever occurring in section 54 (2), 4
(3) and (4). 5
Insert instead "Division". 6
[54] Part 5G Unfair contract terms 7
Omit the Part. 8
[55] Parts 6 and 7 9
Omit Part 6 (except sections 64A and 70). Insert instead: 10
Part 6 Enforcement and remedies 11
Division 1 Interpretation and application 12
61 Interpretation 13
(1) In this Part: 14
local contravention means a contravention of Part 4 or 15
section 87 (1). 16
(2) A reference in this Part to a person involved in a contravention of 17
a provision of this Act is a reference to a person who: 18
(a) has aided, abetted, counselled or procured the 19
contravention, or 20
(b) has induced, whether by threats or promises or otherwise, 21
the contravention, or 22
(c) has been in any way, directly or indirectly, knowingly 23
concerned in, or party to, the contravention, or 24
(d) has conspired with others to effect the contravention. 25
(3) A reference in this Part to a contravention of Part 2-3 of the ACL 26
(or a provision of that Part) is a reference to applying or relying 27
on, or purporting to apply or rely on, a term of a consumer 28
contract that the Supreme Court has declared under section 250 29
of the ACL to be an unfair term. 30
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Division 2 Enforcement provisions applying to ACL 1
offences and local offences 2
62 Enforcement provisions of ACL that extend to local offences 3
(1) The following provisions of the ACL apply to an offence against 4
a provision of Part 4 or section 87 (1) of this Act in the same way 5
as they apply to a contravention of, or an offence against, a 6
provision of Chapter 4 of the ACL: 7
(a) section 207 (Reasonable mistake of fact), 8
(b) section 208 (Act or default of another person etc.), 9
(c) section 209 (Publication of advertisements in the ordinary 10
course of business), 11
(d) section 216 (Granting of injunctions etc.). 12
(2) The following provisions of the ACL apply to an offence against 13
section 20 (3), 22, 23, Part 4 or section 87 (1) of this Act in the 14
same way as they apply to a contravention of, or an offence 15
against, a provision of Chapter 4 of the ACL: 16
(a) section 212 (Prosecutions to be commenced within 17
3 years), 18
(b) section 214 (Penalties for contraventions of the same 19
nature etc.), 20
(c) section 215 (Penalties for previous contraventions of the 21
same nature etc.). 22
63 Offences against this Act 23
(1) A person is guilty of an offence against this Act if the person: 24
(a) contravenes a provision of this Act, or 25
(b) attempts to contravene a provision of this Act, or 26
(c) aids, abets, counsels or procures another person to 27
contravene a provision of this Act, or 28
(d) induces, or attempts to induce, another person, whether by 29
threats or promises or otherwise, to contravene a provision 30
of this Act, or 31
(e) is in any way, directly or indirectly, knowingly concerned 32
in, or party to, the contravention by another person of a 33
provision of this Act, or 34
(f) conspires with others to contravene a provision of this Act. 35
(2) Subsection (1) does not apply to a contravention of section 54 of 36
this Act or Chapter 2 or 3 of the ACL. 37
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
64 Penalties for contraventions 1
(1) A person who is convicted of a second or subsequent offence 2
against Division 1, 2 or 5 of Part 4-1 of the ACL is, in addition 3
to, or as an alternative to, any monetary penalty that may be 4
imposed in relation to the offence, liable to imprisonment for a 5
term not exceeding 3 years. 6
(2) However, the maximum term of imprisonment that the Local 7
Court may impose for any such second or subsequent offence is 8
2 years. 9
65 Compensation orders by Local Court on conviction of person 10
(1) If a person is convicted by the Local Court of an offence against 11
this Act or the regulations and the Court is satisfied that another 12
person has sustained loss or damage as a result of the conduct of 13
the convicted person, the Court may, in addition to any penalty it 14
may impose in respect of the offence, order the convicted person 15
to compensate the other person for the loss or damage. 16
(2) The compensation that the Local Court may order to be paid 17
under this section is not to exceed the jurisdictional limit of the 18
Local Court when sitting in its General Division within the 19
meaning of the Local Court Act 2007. 20
(3) In this section: 21
(a) a reference to the conviction of a person includes a 22
reference to the making of an order in respect of a person 23
under section 10 of the Crimes (Sentencing Procedure) Act 24
1999, and 25
(b) a reference to loss or damage does not, if the loss or 26
damage arises from a contravention of Part 2-1, 3-1 or 4-1 27
of the ACL, include a reference to: 28
(i) the death of a person, or 29
(ii) personal injury to a person (including any pre-natal 30
injury, any impairment of the person's physical or 31
mental condition and any disease). 32
66 Other orders that may be made by court on conviction 33
(1) If a person is, by any conviction or order of the Local Court, 34
required to pay a fine, penalty, sum of money or costs in respect 35
of an offence against this Act, the Court may, on the application 36
of the Minister or the Director-General, order that the amount 37
unpaid be recoverable as a judgment debt due to the Crown. 38
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(2) If an order is made under subsection (1): 1
(a) the order has effect according to its tenor, and 2
(b) the conviction or order ceases to be enforceable by 3
imprisonment. 4
(3) If a person is convicted of an offence against this Act, the 5
convicting court may order the offender to reimburse the 6
Department for the cost of purchasing or testing any goods to 7
which the conviction relates. 8
67 Penalty notices 9
(1) An authorised officer may serve a penalty notice on a person if it 10
appears to the officer that the person has committed an offence 11
against this Act or the regulations, being an offence prescribed by 12
the regulations as a penalty notice offence. 13
(2) A penalty notice is a notice to the effect that, if the person served 14
does not wish to have the matter determined by a court, the 15
person can pay, within the time and to the person specified in the 16
notice, the amount of the penalty prescribed by the regulations for 17
the offence if dealt with under this section. 18
(3) A penalty notice under this section is declared to be a penalty 19
notice for the purposes of the Fines Act 1996. 20
(4) A penalty notice may be served personally or by post. 21
(5) If the amount of penalty prescribed for an alleged offence is paid 22
under this section, no person is liable to any further proceedings 23
for the alleged offence. 24
(6) For the avoidance of doubt, a reference to any further 25
proceedings for the alleged offence in subsection (5) includes a 26
reference to any further proceedings under section 224 of the 27
ACL for a contravention of a provision of the ACL that has the 28
same elements as the elements for the alleged offence. 29
(7) Payment under this section is not to be regarded as an admission 30
of liability for the purpose of, and does not in any way affect or 31
prejudice, any civil claim, action or proceeding arising out of the 32
same occurrence. 33
(8) The regulations may: 34
(a) prescribe an offence for the purposes of this section by 35
specifying the offence or by referring to the provision 36
creating the offence, and 37
(b) prescribe the amount of penalty payable for the offence if 38
dealt with under this section, and 39
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(c) prescribe different amounts of penalties for different 1
offences or classes of offences. 2
(9) The amount of a penalty prescribed under this section for an 3
offence is not to exceed the maximum amount of penalty that 4
could be imposed for the offence by a court. 5
(10) This section does not limit the operation of any other provision 6
of, or made under, this or any other Act relating to proceedings 7
that may be taken in respect of offences. 8
(11) In this section: 9
authorised officer means: 10
(a) the Director-General, or 11
(b) an investigator, or 12
(c) a person appointed in writing by the Director-General as 13
an authorised officer for the purposes of this section. 14
68 Proceedings for offences 15
(1) Proceedings for an offence against this Act may be taken and 16
prosecuted only by the Director-General or, in the name of the 17
Director-General, by a person acting with the authority of the 18
Director-General. 19
(2) Proceedings for an offence under this Act or the regulations may 20
be dealt with: 21
(a) summarily before the Local Court, or 22
(b) summarily before the Supreme Court in its summary 23
jurisdiction. 24
(3) If proceedings are brought in the Local Court, the maximum 25
monetary penalty that the Local Court may impose for the 26
offence is 100 penalty units, despite any higher maximum 27
monetary penalty provided in respect of the offence. 28
(4) In proceedings for an offence against this Act, an authority to 29
prosecute purporting to have been signed by the Director-General 30
is evidence of that authority without proof of the signature of the 31
Director-General. 32
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Division 3 Enforcement provisions applying to local 1
offences only 2
69 Penalties for offences against this Act 3
A person guilty of an offence against this Act (except the ACL) 4
for which a penalty is not otherwise provided is liable: 5
(a) in the case of a person other than a body corporate--to a 6
penalty not exceeding 200 penalty units, or 7
(b) in the case of a body corporate--to a penalty not exceeding 8
1,000 penalty units. 9
Division 4 Remedies applying to ACL matters and local 10
matters 11
70 Remedy provisions of ACL that extend to local matters 12
(1) Section 218 (Regulator may accept undertakings) of the ACL 13
applies to a matter in relation to which the Minister or the 14
Director-General has a function under this Act in the same way 15
as it applies to a matter in relation to which the regulator has a 16
power or function under the ACL. 17
(2) The following provisions of the ACL apply to a local 18
contravention in the same way as they apply to a contravention of 19
the ACL specified in those provisions: 20
(a) Division 2 (Injunctions) of Part 5-2, 21
(b) Division 3 (Damages) of Part 5-2, 22
(c) Subdivision A (Compensation orders etc. for injured 23
persons) of Division 4 of Part 5-2, 24
(d) section 246 (other than subsection (2) (a) and (b)) 25
(Non-punitive orders), 26
(e) section 247 (Adverse publicity orders), 27
(f) section 251 (Publication of advertisement in the ordinary 28
course of business). 29
71 Declarations by Supreme Court concerning unfair contract terms 30
(1) An application for a declaration under section 250 of the ACL 31
may be made only by the Director-General or, with the leave of 32
the Supreme Court, by a party to a consumer contract that is a 33
standard form contract. 34
Note. Section 86 enables the Minister to intervene in proceedings 35
brought before the Supreme Court under this Act. 36
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(2) A declaration made under section 250 of the ACL that a 1
particular term of a consumer contract that is a standard form 2
contract is unfair binds all parties to consumer contracts of that 3
kind, unless the Supreme Court orders otherwise. 4
(3) This section does not: 5
(a) limit any other power of the Supreme Court to make 6
declarations, or 7
(b) prevent a party to a consumer contract that is a standard 8
form contract from bringing proceedings in a court or 9
tribunal of competent jurisdiction for relief in respect of a 10
term of a consumer contract that is void because it is 11
unfair. 12
Note. Section 23 of the ACL provides that an unfair term in a consumer 13
contract that is a standard form contract is void, although the contract 14
continues to bind the parties if it is capable of operating without the unfair 15
term. If a contract claim in relation to a consumer contract containing 16
such an unfair term is brought before a court or tribunal (such as the 17
Consumer, Trader and Tenancy Tribunal) having jurisdiction to deal with 18
the claim, the court or tribunal will be required to treat the term as being 19
void. 20
(4) In this section, consumer contract, standard form contract and 21
unfair have the same meanings as they have in the ACL. 22
72 Show cause action may be taken by Director-General 23
(1) In this section, unlawful conduct means any conduct that 24
constitutes a contravention of a provision of this Act other than 25
Part 2-3 of the ACL (or would constitute such a contravention if 26
the conduct occurred in New South Wales), whether or not any 27
proceedings have been brought in respect of the contravention. 28
(2) If the Director-General is satisfied that a person has, in trade or 29
commerce, engaged in any unlawful conduct on more than one 30
occasion (whether in New South Wales or in any other place), the 31
Director-General may, by notice in writing served on the person, 32
call on the person to show cause why the person should not, for 33
the reason specified in the notice, be prevented from carrying on 34
a business of supplying goods or services. 35
(3) The notice must specify the period (being at least 14 days after 36
the notice is served) in which the person may show cause. 37
(4) The person on whom a notice to show cause has been served 38
under this section may, within the period specified in the notice, 39
make a written submission in relation to the matters to which the 40
notice relates. 41
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Amendment of Fair Trading Act 1987 No 68 Schedule 1
(5) The Director-General: 1
(a) is to consider any such submission, and 2
(b) may conduct such inquiries, or make such investigations, 3
in relation to the matters to which the notice relates as the 4
Director-General thinks appropriate. 5
(6) This section does not limit the operation of section 79 of this Act 6
or Division 2 of Part 5-2 of the ACL. 7
73 Trading prohibition orders 8
(1) The Director-General may, after serving a notice on a person 9
under section 72 and taking into consideration any submissions 10
made in relation to the matter, apply to the Supreme Court for an 11
order under this section in respect of the person if the 12
Director-General is of the opinion that the person is likely to 13
engage again, or to continue to engage, in any unlawful conduct 14
within the meaning of that section. 15
(2) The Supreme Court may, on application by the Director-General 16
under this section, make an order prohibiting the person who is 17
the subject of the application (the relevant person) from carrying 18
on a business of supplying goods or services (whether or not as 19
part of, or incidental to, the carrying on of another business) for 20
an indefinite period or for a period specified in the order. 21
(3) In making any such order, the Supreme Court may, if the Court 22
is satisfied that a person has sustained loss or damage as a result 23
of the unlawful conduct of the relevant person, order the relevant 24
person to compensate the other person for the loss or damage. 25
(4) A reference in subsection (3) to loss or damage does not, if the 26
loss or damage arises from a contravention of Part 2-1, 3-1 or 4-1 27
of the ACL, include a reference to: 28
(a) the death of a person, or 29
(b) personal injury to a person (including any pre-natal injury, 30
any impairment of the person's physical or mental 31
condition and any disease). 32
(5) This section does not limit the operation of section 79 of this Act 33
or Division 2 of Part 5-2 of the ACL. 34
74 Actions for damages and compensation orders 35
(1) Sections 236 (2) and 237 (3) of the ACL do not apply to a cause 36
of action to which Division 6 of Part 2 of the Limitation Act 1969 37
applies. 38
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(2) The powers conferred on the Supreme Court under section 237, 1
238 or 243 of the ACL in relation to a contract or arrangement do 2
not affect any powers that another court may have in relation to 3
the contract or arrangement in proceedings instituted in that other 4
court in respect of the contract or arrangement. 5
(3) The Tribunal may decide the matter of whether a person has 6
suffered loss or damage because of the conduct of another person 7
that constitutes a local contravention or a contravention of 8
Chapter 2 or 3 of the ACL if that matter arises in connection with 9
another matter the subject of proceedings in the Tribunal. In 10
deciding the matter of loss or damage, the Tribunal may award 11
such sum, and make such ancillary orders, as it thinks fit. 12
(4) A reference to loss or damage in section 236, 237 or 238 of the 13
ACL and in this section does not, if the loss or damage arises 14
from a contravention of Part 2-1, 3-1 or 4-1 of the ACL, include 15
a reference to: 16
(a) the death of a person, or 17
(b) personal injury to a person (including any pre-natal injury, 18
any impairment of the person's physical or mental 19
condition and any disease). 20
75 Contributory acts or omissions to reduce compensation in 21
defective goods actions 22
(1) If the loss or damage to which a defective goods action under 23
section 138 or 139 of the ACL relates was caused by both: 24
(a) an act or omission of the individual who suffers the injuries 25
referred to in that section or a person for whom that 26
individual is responsible, and 27
(b) a safety defect of the goods to which the action relates, 28
the amount of the loss or damage is to be reduced to such extent 29
(which may be to nil) as the court thinks fit having regard to that 30
individual's share in the responsibility for the loss or damage. 31
(2) If the loss or damage to which a defective goods action under 32
section 140 or 141 of the ACL relates was caused by both: 33
(a) an act or omission of the person who suffered the loss or 34
damage or another person for whom that person is 35
responsible, and 36
(b) a safety defect of the goods to which the action relates, 37
the amount of the loss or damage is to be reduced to such extent 38
(which may be to nil) as the court thinks fit having regard to that 39
person's share in the responsibility for the loss or damage. 40
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76 Compensation orders etc arising out of unfair contract terms 1
In determining whether to make an order under section 237 (1) or 2
238 (1) of the ACL in relation to: 3
(a) a contravention of a provision of Part 2-2 of the ACL, or 4
(b) a term of a consumer contract that has been declared under 5
section 250 of the ACL to be an unfair term, 6
the court may have regard to the conduct of the parties to the 7
proceeding referred to in that subsection since the contravention 8
occurred or the declaration was made. 9
77 Remedy for supply of goods in contravention of certain provisions 10
(1) This section applies if: 11
(a) goods are supplied to a person in contravention of 12
section 106 or 118 of the ACL, or 13
(b) goods are supplied to a person and the supply of the goods 14
is an offence under section 194 or 197 of the ACL 15
(whether or not there has been a conviction for the 16
offence). 17
(2) The person to whom the goods were supplied may recover from 18
the supplier as a debt any money paid for the goods. 19
(3) If judgment is given for the plaintiff in an action under 20
subsection (2), the judgment debt may, if the court so directs, be 21
satisfied by repair or modification of the goods in such a manner 22
that: 23
(a) the contravention relied on by the plaintiff would not have 24
occurred if the goods had been supplied as repaired or 25
modified, or 26
(b) the repaired or modified goods are accepted by the plaintiff 27
on or before a day specified in the direction. 28
78 Court may make orders for the purpose of preserving money or 29
other property held by a person 30
(1) The Supreme Court may, on the application of the Minister or the 31
Director-General, make an order or orders referred to in 32
subsection (3) if: 33
(a) proceedings of a kind referred to in subsection (2) have 34
been taken against a person, or proceedings of a kind 35
referred to in subsection (2) (e) or (f) may be taken against 36
a person, and 37
(b) the Court is satisfied that it is necessary or desirable to 38
make the order or orders for the purpose of preserving 39
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
money or other property held by, or on behalf of, the 1
person if the person is liable, or may become liable, under 2
this Act: 3
(i) to pay money by way of a fine, damages, 4
compensation, refund or otherwise, or 5
(ii) to transfer, sell or refund other property, and 6
(c) the Court is satisfied that the making of such an order or 7
orders will not unduly prejudice the rights and interests of 8
any other person. 9
(2) For the purposes of subsection (1) (a), the kinds of proceedings 10
taken against the person are: 11
(a) proceedings against the person for an offence against this 12
Act, or 13
(b) an application under section 232 of the ACL for an 14
injunction against the person in relation to: 15
(i) a local contravention or a contravention of a 16
provision of Chapter 2, 3 or 4 of the ACL, or 17
(ii) a term of a consumer contract in relation to which a 18
declaration under section 250 of the ACL has been 19
made, or 20
(c) an application under section 79 for an injunction against a 21
person in relation to a contravention referred to in that 22
section, or 23
(d) an action under section 236 (1) of the ACL against the 24
person in relation to a local contravention or a 25
contravention of a provision of Chapter 2 or 3 of the ACL, 26
or 27
(e) an application for an order under section 237 (1) or 239 (1) 28
of the ACL against the person in relation to: 29
(i) a contravention of a provision of Chapter 2, 3 or 4 of 30
the ACL, or 31
(ii) a term of a consumer contract in relation to which a 32
declaration under section 250 of the ACL has been 33
made, or 34
(f) an application for an order under section 237 (1) of the 35
ACL in relation to a local contravention, or 36
(g) an application for an order under section 73 in relation to 37
the person. 38
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
(3) The Supreme Court may make the following orders under 1
subsection (1) in relation to money or other property held by, or 2
on behalf of, a person (the respondent): 3
(a) an order prohibiting, either absolutely or subject to 4
conditions, a person who is indebted to the respondent, or 5
to an associate of the respondent, from making a payment, 6
in total or partial discharge of the debt: 7
(i) to the respondent, or 8
(ii) to another person at the direction or request of the 9
respondent, 10
(b) an order prohibiting, either absolutely or subject to 11
conditions, a person who is holding money or other 12
property on behalf of the respondent, or on behalf of an 13
associate of the respondent: 14
(i) from paying all or any of the money to the 15
respondent, or to another person at the direction or 16
request of the respondent, or 17
(ii) from transferring the other property to the 18
respondent, or to another person at the direction or 19
request of the respondent, or otherwise parting with 20
possession of that property, 21
(c) an order prohibiting, either absolutely or subject to 22
conditions, the taking or sending by any person of money 23
of the respondent, or of an associate of the respondent, to 24
a place outside the State or Territory in which the money 25
is held, 26
(d) an order prohibiting, either absolutely or subject to 27
conditions, the taking, sending or transfer by any person of 28
other property of the respondent, or of an associate of the 29
respondent, to a place outside the State or Territory in 30
which that property is located, 31
(e) if the respondent is a natural person--an order appointing 32
a receiver or trustee of the property, or of part of the 33
property, of the respondent with such powers as are 34
specified in the order. 35
(4) If the Supreme Court makes such an order, the order operates: 36
(a) for the period specified in the order (which must not be 37
longer than 30 days if the application for the order was an 38
ex parte application), or 39
(b) if proceedings in relation to which the order is made are 40
concluded before the end of that period--until the 41
conclusion of those proceedings. 42
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(5) A person who contravenes an order by the Supreme Court under 1
this section that is applicable to the person is guilty of an offence 2
punishable on conviction: 3
(a) in the case of a person other than a body corporate--by a 4
fine not exceeding 200 penalty units, or 5
(b) in the case of a body corporate--by a fine not exceeding 6
1,000 penalty units. 7
(6) This section does not affect any other powers of the Supreme 8
Court. 9
(7) A reference in this section to a person who is an associate of a 10
respondent is a reference to: 11
(a) a person holding money or other property on behalf of the 12
respondent, or 13
(b) if the respondent is a body corporate--a wholly owned 14
subsidiary (within the meaning of the Corporations Act 15
2001 of the Commonwealth) of the respondent. 16
Division 5 Remedies applying to local matters only 17
79 Other injunctions 18
(1) The Supreme Court may grant an injunction in such terms as the 19
Court determines to be appropriate if satisfied that a person has 20
engaged, or is proposing to engage, in conduct that constitutes, or 21
would constitute: 22
(a) a contravention of: 23
(i) section 20 (3), 22 or 23 of this Act, or 24
(ii) a provision of the Fitness Services (Pre-paid Fees) 25
Act 2000, or 26
(iii) a provision of any other legislation administered by 27
the Minister or of an order made under any such 28
legislation, or 29
(b) attempting to contravene such a provision, or 30
(c) aiding, abetting, counselling or procuring a person to 31
contravene such a provision, or 32
(d) inducing, or attempting to induce, whether by threats or 33
promises or otherwise, a person to contravene such a 34
provision, or 35
(e) being in any way, directly or indirectly, knowingly 36
concerned in, or party to, the contravention by a person of 37
such a provision, or 38
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
(f) conspiring with others to contravene such a provision. 1
(2) The Supreme Court may grant an injunction under this section 2
only on the application of the Director-General made with the 3
consent of the Minister. 4
(3) An injunction may be granted under this section as an interim 5
injunction without an undertaking being required as to damages 6
or costs or may be granted as a permanent injunction. 7
Part 7 NSW Consumer Law Fund 8
79B NSW Consumer Law Fund 9
(1) There is to be established in the Special Deposits Account a NSW 10
Consumer Law Fund (the Fund). 11
(2) There is payable into the Fund: 12
(a) any pecuniary penalty ordered by a court under section 224 13
of the ACL to be paid to the State, and 14
(b) any amount ordered by a court under section 239 (1) of the 15
ACL to be paid into the Fund, and 16
(c) the proceeds of the investment of money in the Fund, and 17
(d) any money directed to be paid into the Fund by or under 18
this or any other Act. 19
(3) There is payable out of the Fund: 20
(a) money to non-party consumers in accordance with an 21
order under section 239 (1) of the ACL, and 22
(b) special purpose grants for improving consumer 23
well-being, consumer protection or fair trading, and 24
(c) administrative expenses incurred in relation to the Fund, 25
and 26
(d) money that is directed to be paid from the Fund by or under 27
this or any other Act. 28
(4) Subject to the regulations, money is to be paid out of the Fund in 29
accordance with the directions of the Minister made on the 30
recommendation of the Director-General. 31
(5) Any amount ordered by a court under section 239 (1) of the ACL 32
to be paid into the Fund must not be paid out of the Fund except 33
in accordance with the terms of the order. 34
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(6) The Minister may, on the recommendation of the 1
Director-General, invest money in the Fund in such manner as 2
may be authorised by the Public Authorities (Financial 3
Arrangements) Act 1987. 4
[56] Existing section 64A 5
Renumber the section as section 79A and insert at the end of Division 5 of 6
Part 6 (as substituted by this Schedule). 7
[57] Existing section 70 8
Renumber the section as section 87A and insert after section 87. 9
[58] Section 81 10
Omit the section. Insert instead: 11
81 Allegation of consumer 12
Section 3 (10) of the ACL extends to proceedings under 13
provisions of this Act apart from the ACL in the same way as it 14
applies to proceedings under the ACL. 15
[59] Section 84 Evidence as to certain matters 16
Omit "section 64" from section 84 (a) (ii). Insert instead "section 67". 17
[60] Section 85A 18
Insert after section 85: 19
85A Findings in certain proceedings to be evidence 20
(1) In proceedings under section 236, 237 or 239 of the ACL or 21
section 77 of this Act, or in an application under section 73 of this 22
Act for an order against a person: 23
(a) a finding of fact by a court to which this section applies is 24
evidence of that fact, and 25
(b) the finding may be proved by production of a document 26
under the seal of the court from which the finding appears. 27
(2) This section applies to a finding of fact by a court in proceedings 28
under section 228, 232, 246, 247 or 248 of the ACL or section 79 29
of this Act, or for an offence against this Act (other than the ACL) 30
or Chapter 4 of the ACL, in which the person has been found: 31
(a) to have contravened a provision of this Act (other than the 32
ACL) or of Chapter 2, 3 or 4 of the ACL, or 33
(b) to have attempted to contravene such a provision, or 34
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
(c) to have aided, abetted, counselled or procured a person to 1
contravene such a provision, or 2
(d) to have induced or attempted to induce a person, whether 3
by threats or promises or otherwise, to contravene such a 4
provision, or 5
(e) to have been in any way, directly or indirectly, knowingly 6
concerned in, or party to, the contravention by a person of 7
such a provision, or 8
(f) to have conspired with others to contravene such a 9
provision. 10
[61] Section 86 11
Omit the section. Insert instead: 12
86 Intervention by Minister or Director-General 13
(1) This section applies to proceedings brought before a court or 14
tribunal under this Act or any other legislation administered by 15
the Minister. 16
(2) The Minister may, at any stage of proceedings to which this 17
section applies, intervene in the proceedings. 18
(3) The Director-General may, at any stage of proceedings to which 19
this section applies, intervene in the proceedings but only if the 20
Director-General is of the opinion that it would be in the public 21
interest to do so. 22
(4) The Director-General must intervene in proceedings to which 23
this section applies if directed to do so by the Minister. 24
(5) If the Minister or Director-General intervenes in proceedings, he 25
or she: 26
(a) becomes a party to the proceedings, and 27
(b) has all the rights, including rights of appeal, of a party to 28
the proceedings. 29
[62] Section 86A Public warning statements 30
Omit "Part 5G" from section 86A (1) (c). 31
Insert instead "Part 2-3 of the ACL". 32
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[63] Section 86B 1
Insert after section 86A: 2
86B Register of undertakings 3
(1) The Director-General is to maintain a register that includes the 4
following in relation to each undertaking accepted under 5
section 218 of the ACL: 6
(a) a copy of the undertaking, 7
(b) a copy of each variation of the undertaking, 8
(c) the name and address of the person who gave the 9
undertaking, 10
(d) the date of the undertaking. 11
(2) The register is to be amended to remove information relating to 12
undertakings that have been withdrawn. 13
(3) The register is to be kept in the head office of the Department and 14
is to be available for inspection during ordinary business hours 15
free of charge. 16
(4) The register may also be made available in electronic form. 17
[64] Section 87A (as renumbered by this Schedule) 18
Omit "Part" wherever occurring. Insert instead "Act". 19
[65] Section 88A 20
Insert after section 88: 21
88A Relationship with certain provisions of other Acts 22
(1) Section 64 (Guarantees not to be excluded etc. by contract) of the 23
ACL is, with respect to a term of a contract for the supply of 24
recreation services within the meaning of section 5N of the Civil 25
Liability Act 2002, subject to that section of that Act. 26
(2) Section 101 (Consumer may request an itemised bill) of the ACL 27
does not apply to a bill within the meaning of Part 3.2 of the Legal 28
Profession Act 2004. 29
[66] Section 89 Saving of rights and remedies 30
Omit section 89 (2). Insert instead: 31
(2) Section 16 (Severability) of the ACL applies to a contravention 32
of a provision of this Act (other than the ACL) in the same way 33
as it applies to a contravention of the ACL and as so applying is 34
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
to be read as if a reference in that section to this Schedule were a 1
reference to this Act. 2
[67] Section 90 Repeals 3
Omit the section. 4
[68] Section 92 Regulations 5
Omit section 92 (1A). Insert instead: 6
(1A) Without limiting subsection (1), the regulations may make 7
provision for or with respect to the following: 8
(a) the calling and holding of meetings of an advisory council, 9
(b) varying the times referred to in section 73 (1) of the ACL, 10
(c) the payment of money out of the NSW Consumer Law 11
Fund established under section 79B. 12
Note. Section 73 (1) of the ACL specifies the times at which a dealer 13
must not call on a person to negotiate an unsolicited consumer 14
agreement or for related purposes. Section 131C (2) of the Competition 15
and Consumer Act 2010 of the Commonwealth winds back the operation 16
of section 73 of the ACL to the extent that it is inconsistent with a 17
provision of a State law. 18
[69] Section 93 Disposal of property 19
Omit the section. 20
[70] Schedule 2 21
Omit the heading and source reference. Insert instead: 22
Schedule 2 Acts prohibiting or regulating 23
supply of goods or services 24
(Section 42) 25
[71] Schedule 3 Repeals 26
Omit the Schedule. 27
[72] Schedule 4 Provisions applicable to Products Safety Committee 28
Omit clause 3 (1). Insert instead: 29
(1) The Committee, after having obtained the approval of the 30
Minister, may co-opt any person who, in its opinion, has 31
expertise in relation to a question referred to it under section 42. 32
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[73] Schedule 4A Provisions relating to advisory councils 1
Omit ", 25N" from the source reference. 2
[74] Schedule 5 Savings and transitional provisions 3
Insert before clause 1: 4
Part 1 Preliminary 5
1A Regulations 6
(1) The regulations may contain provisions of a savings or 7
transitional nature consequent on the enactment of the following 8
Acts: 9
this Act 10
Fair Trading (Lay-by) Amendment Act 1993 11
Fair Trading Amendment Act 1995 12
Fair Trading Legislation Amendment Act 1997 13
Fair Trading Amendment (Employment Placement Services) Act 14
2002 15
Fair Trading Amendment Act 2003 16
Fair Trading Amendment Act 2004 17
Fair Trading Amendment Act 2006 (but only to the extent that it 18
amends this Act) 19
Fair Trading Amendment (Motor Vehicle Insurance and Repair 20
Industries) Act 2006 21
Fair Trading Amendment (Funeral Goods and Services) Act 22
2007 23
Fair Trading Amendment (Unfair Contract Terms) Act 2010 24
Fair Trading Amendment (Australian Consumer Law) Act 2010 25
(2) Any such provision may, if the regulations so provide, take effect 26
from the date of assent to the Act concerned or a later date. 27
(3) To the extent to which any such provision takes effect from a date 28
that is earlier than the date of its publication on the NSW 29
legislation website, the provision does not operate so as: 30
(a) to affect, in a manner prejudicial to any person (other than 31
the State or an authority of the State), the rights of that 32
person existing before the date of its publication, or 33
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
(b) to impose liabilities on any person (other than the State or 1
an authority of the State) in respect of anything done or 2
omitted to be done before the date of its publication. 3
(4) For the avoidance of doubt, any provision of the regulations made 4
for the purposes of this clause may, if the regulations so provide, 5
have effect despite any specified provision of this Act (including 6
a provision of this Schedule). 7
Part 2 Provisions consequent on enactment of 8
this Act 9
[75] Schedule 5, Part 3 10
Insert before clause 11A: 11
Part 3 Provisions consequent on enactment of 12
certain other Acts 13
[76] Schedule 5, clause 11I (1) 14
Insert "but before the day on which that Part is repealed by the Fair Trading 15
Amendment (Australian Consumer Law) Act 2010" after "(the 16
commencement day)". 17
[77] Schedule 5, clause 11I (3) and (4) 18
Insert "but before the day on which Part 5G is repealed by the Fair Trading 19
Amendment (Australian Consumer Law) Act 2010" after "the commencement 20
day" wherever occurring. 21
[78] Schedule 5, clause 11I (4) 22
Insert "but before the day on which Part 5G is repealed by the Fair Trading 23
Amendment (Australian Consumer Law) Act 2010" after "on or after the 24
variation day". 25
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[79] Schedule 5 1
Omit clause 12. Insert instead: 2
Part 4 Provisions consequent on enactment of 3
Fair Trading Amendment (Australian 4
Consumer Law) Act 2010 5
12 Definitions 6
In this Part: 7
amending Act means the Fair Trading Amendment (Australian 8
Consumer Law) Act 2010. 9
commencement of the ACL means 1 January 2011. 10
13 References to Trade Practices Act 1974 of the Commonwealth 11
On and from the commencement of item 2 of Schedule 5 to the 12
Trade Practices Amendment (Australian Consumer Law) Act 13
(No. 2) 2010 of the Commonwealth, a reference in any Act or 14
instrument (other than this Schedule) to the Trade Practices Act 15
1974 of the Commonwealth is to be read as a reference to the 16
Competition and Consumer Act 2010 of the Commonwealth. 17
14 Products Safety Committee and advisory councils 18
(1) Any question that was referred to the Products Safety Committee 19
under section 28 before its amendment by the amending Act, and 20
in respect of which a report or recommendation had not been 21
made by the Committee before that amendment, may continue to 22
be dealt with by the Committee as if it were a question referred 23
under that section as so amended. 24
(2) A renumbering of any provision by the amending Act does not 25
affect the establishment of any advisory council or the 26
membership of any advisory council or any other matter relating 27
to an advisory council. 28
15 Product bans 29
(1) An interim order made under section 30 before its repeal and 30
re-enactment by the amending Act, and still in force immediately 31
before that repeal, is taken to be an interim ban made under 32
section 109 of the ACL. 33
(2) A reference in section 111 (1) (a) of the ACL to the start day is 34
taken, in relation to an interim order referred to in subclause (1), 35
to be a reference to the day on which the order was published in 36
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Act 1987 No 68 Schedule 1
the Gazette or, if the order was not published in the Gazette, the 1
day on which it was given to the supplier concerned. 2
(3) Any order made under section 31, and in force immediately 3
before the repeal of that section by the amending Act, is revoked 4
on that repeal. 5
16 Conduct and other matters occurring or arising before 6
commencement of ACL 7
(1) Subject to the other provisions of this Part and the regulations, 8
this Act, as in force before the commencement of the ACL, 9
continues to apply to: 10
(a) acts or omissions that occurred before that 11
commencement, and 12
(b) direct commerce contracts (within the meaning of 13
Division 3 of Part 4 before its repeal by the amending Act) 14
entered into before that commencement, and 15
(c) other contracts entered into before that commencement, 16
and 17
(d) a lay-by (within the meaning of section 60E before its 18
repeal by the amending Act) entered into before that 19
commencement. 20
(2) Section 101 of the ACL does not apply in relation to services to 21
the extent that they were supplied before the commencement of 22
the ACL. 23
(3) The reference in section 224 (2) (c) of the ACL to proceedings 24
under Chapter 4 or Part 5-2 includes a reference to proceedings 25
commenced before the commencement of the ACL: 26
(a) under or in relation to Part VC or VI of the Trade Practices 27
Act 1974 of the Commonwealth, or 28
(b) under Part 6 of this Act. 29
17 Unfair contract terms 30
(1) Part 2-3 of the ACL applies to a contract entered into on or after 31
the commencement of the ACL. 32
(2) Except as provided by subclauses (3)-(5), Part 2-3 of the ACL 33
does not apply to a contract entered into before the 34
commencement of the ACL. 35
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(3) If a contract is renewed on or after the commencement of the 1
ACL, Part 2-3 of the ACL applies to the contract as renewed, on 2
and from the day (the renewal day) on which the renewal takes 3
effect, in relation to conduct that occurs on or after the renewal 4
day. 5
(4) If a term of the contract is varied on or after the commencement 6
of the ACL and subclause (3) has not already applied in relation 7
to the contract, Part 2-3 applies to the term as varied, on and from 8
the day (the variation day) on which the variation takes effect, in 9
relation to conduct that occurs on or after the variation day. 10
(5) If subclause (4) applies to a term of a contract, sections 23 (2) and 11
27 of the ACL apply to the contract. 12
18 Product information standards 13
(1) Despite the repeal of section 38 by the amending Act, the 14
regulations made under that section, and in force immediately 15
before that repeal, continue in force and may be amended and 16
repealed as if that section also continued in force. 17
(2) Despite the repeal of section 39 by the amending Act, that section 18
as in force before its repeal is taken to continue in force in relation 19
to a product information standard prescribed by regulations 20
referred to in subclause (1). 21
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Amendment of Fair Trading Regulation 2007 Schedule 2
Schedule 2 Amendment of Fair Trading Regulation 1
2007 2
[1] Part 2 Product safety standards 3
Omit the Part. 4
[2] Part 3 Product information standards 5
Omit Division 3. 6
[3] Clause 101 Information standard for employment placement services 7
Omit "section 60R" from clause 101 (1). Insert instead "section 50". 8
[4] Clause 101A Information standard for funeral goods and services 9
Omit "section 60Z". Insert instead "section 55". 10
[5] Clause 102 Penalty notice offences 11
Omit "section 64". Insert instead "section 67". 12
[6] Part 6 Direct commerce provisions 13
Omit the Part. 14
[7] Clause 108 Declaration of industry code of conduct in relation to motor 15
vehicle insurers and repairers 16
Omit "section 60X (1)", "section 60X (2) (a)" and "section 60X (2) (b)". 17
Insert instead, respectively, "section 53 (1)", "section 53 (2) (a)" and 18
"section 53 (2) (b)". 19
[8] Schedule 1 20
Omit the Schedule. Insert instead: 21
Schedule 1 Penalty notice offences 22
(Clause 102) 23
Column 1 Column 2
Offences under the ACL
Section 165 of the ACL $550
Section 194 (1), (2), (3) or (5) of the ACL $550
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 2 Amendment of Fair Trading Regulation 2007
Column 1 Column 2
Section 197 (1), (2), (3) or (5) of the ACL $550
Section 201 (1) of the ACL $550
Section 203 (1), (2) or (3) of the ACL $550
Offences under the Fair Trading Act 1987 (other
than the ACL)
Section 45 $550
Section 49 (1) $550
Section 50 (3) $550
Section 56 (1) $550
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Consequential amendment of other Acts and regulation Schedule 3
Schedule 3 Consequential amendment of other Acts 1
and regulation 2
3.1 Building Professionals Regulation 2007 3
Clause 9 Definitions 4
Omit paragraph (b) of the definition of statutory liability. Insert instead: 5
(b) any conduct of the person that would constitute a breach of 6
any of the following provisions or any failure by the person 7
to comply with a guarantee that applies because of any of 8
the following provisions: 9
(i) section 18, 29 or 30 or Subdivision B of Division 1 10
of Part 3-2 of the Australian Consumer Law of the 11
Commonwealth, 12
(ii) any provision of the legislation of this or any other 13
State or Territory that corresponds to a section 14
referred to in subparagraph (i). 15
3.2 Civil Liability Act 2002 No 22 16
Section 34 Application of Part 17
Omit section 34 (1) (b). Insert instead: 18
(b) a claim for economic loss or damage to property in an 19
action for damages under the Fair Trading Act 1987 for a 20
contravention of section 42 of that Act (as in force before 21
its repeal by the Fair Trading Amendment (Australian 22
Consumer Law) Act 2010) or under the Australian 23
Consumer Law (NSW) for a contravention of section 18 of 24
that Law. 25
3.3 Commercial Agents and Private Inquiry Agents Act 2004 26
No 70 27
Section 4 Definitions 28
Insert "(as in force before its repeal by the Fair Trading Amendment 29
(Australian Consumer Law) Act 2010), or under section 50 of the Australian 30
Consumer Law (NSW)," after "Fair Trading Act 1987" in paragraph (a) of the 31
definition of minor offence in section 4 (1). 32
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Fair Trading Amendment (Australian Consumer Law) Bill 2010
Schedule 3 Consequential amendment of other Acts and regulation
3.4 Consumer Claims Act 1998 No 162 1
Section 13 Matters to be taken into account by Tribunal when making 2
orders under this Part 3
Omit section 13 (3) (a). Insert instead: 4
(a) any code of practice prescribed under the Fair Trading Act 5
1987, and 6
3.5 Contracts Review Act 1980 No 16 7
Section 22 Operation of other laws 8
Omit "Part 5G of the Fair Trading Act 1987" from the note to the section. 9
Insert instead "Part 2-3 of the Australian Consumer Law (NSW)". 10
3.6 Fitness Services (Pre-paid Fees) Act 2000 No 95 11
[1] Section 10 Pre-payment of fees where agreed service not provided 12
within 3 months of payment 13
Insert "(as in force before its repeal by the Fair Trading Amendment 14
(Australian Consumer Law) Act 2010), or under section 158 of the Australian 15
Consumer Law (NSW)," after "Fair Trading Act 1987" in section 10 (4). 16
[2] Section 13 Application of certain enforcement provisions in Fair Trading 17
Act 1987 18
Omit "Division 3 (Investigators) of Part 2" from section 13 (1). 19
Insert instead "Part 2A (Provisions relating to investigations)". 20
[3] Section 13 (2) 21
Omit the subsection. Insert instead: 22
(2) Section 218 (Regulator may accept undertakings) of the 23
Australian Consumer Law (NSW) applies to a matter in relation 24
to which the Director-General has a function under this Act in the 25
same way as it applies to a matter in relation to which the 26
regulator has a power or function under the Australian Consumer 27
Law (NSW). 28
Page 52
Fair Trading Amendment (Australian Consumer Law) Bill 2010
Consequential amendment of other Acts and regulation Schedule 3
3.7 Holiday Parks (Long-term Casual Occupation) Act 2002 1
No 88 2
Section 46A 3
Insert after section 46: 4
46A False or misleading information 5
A park owner must not, in purported compliance with any 6
requirement of this Act, give to any occupant or prospective 7
occupant any information that the park owner knows to be false 8
or misleading in a material particular. 9
Maximum penalty: 20 penalty units. 10
3.8 Motor Dealers Act 1974 No 52 11
[1] Section 6 Performance of Director-General's functions 12
Omit the section. 13
[2] Section 47 Certain misdescriptions prohibited 14
Insert "(as in force before its repeal by the Fair Trading Amendment 15
(Australian Consumer Law) Act 2010), or Part 4-1 of the Australian Consumer 16
Law (NSW)" after "Fair Trading Act 1987" in section 47 (4). 17
Page 53
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