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FAIR TRADING AMENDMENT BILL 1996

      Queensland




   FAIR TRADING
AMENDMENT BILL 1996

 


 

Queensland FAIR TRADING AMENDMENT BILL 1996 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 PART 2--AMENDMENT OF FAIR TRADING ACT 1989 3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4 Amendment of s 5 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 Amendment of s 5F (Meaning of persons involved in contravention) . . . . 7 6 Replacement of s 19 (Commissioner and other officers) . . . . . . . . . . . . . . . 7 19 Commissioner and other officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 7 Insertion of new s 19A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 19A Delegation by commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 8 Amendment of s 37 (Interpretation--TPA s 51A) . . . . . . . . . . . . . . . . . . . . . 8 9 Amendment of s 40 (False or misleading representations--TPA s 53) . . . 8 10 Amendment of s 40A (False representations and other misleading or offensive conduct in relation to land--TPA s 53A) . . . . . . . . . . . . . . . . . 8 11 Amendment of s 41 (Misleading conduct in relation to employment--TPA s 53B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12 Amendment of s 42 (Cash price to be stated in certain circumstances--TPA s 53C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 13 Amendment of s 43 (Offering gifts and prizes--TPA s 54) . . . . . . . . . . . . . 9 14 Amendment of s 44 (Certain misleading conduct in relation to goods--TPA s 55) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 15 Amendment of s 45 (Certain misleading conduct in relation to services--TPA s 55A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 16 Amendment of s 46 (Bait advertising--TPA s 56) . . . . . . . . . . . . . . . . . . . . 9 17 Amendment of s 47 (Referral selling--TPA s 57) . . . . . . . . . . . . . . . . . . . . 10

 


 

2 Fair Trading Amendment 18 Amendment of s 48 (Accepting payment without intending or being able to supply as ordered--TPA s 58) . . . . . . . . . . . . . . . . . . . . . . . . . 10 19 Amendment of s 49 (Misleading representation about certain business activities--TPA s 59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 20 Amendment of s 50 (Harassment and coercion--TPA s 60) . . . . . . . . . . . . 10 21 Amendment of s 52 (Assertion of right to payment for unsolicited goods or services, or for making entry in directory--TPA s 64) . . . . . . . . . 10 22 Insertion of new pt 3, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Division 2A--Pyramid selling 55A Definitions for div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 55B Meaning of "trading scheme"--TPA s 61 . . . . . . . . . . . . . . . . . . . . . 12 55C Meaning of "payment to or for the benefit of" a person--TPA s 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 55D Offences about pyramid selling--TPA s 61 . . . . . . . . . . . . . . . . . . . . 13 23 Amendment of s 57 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 24 Insertion of new ss 57A-57C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 57A References to consumer or supplier under a contract for the supply of goods or services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 57B References to contract for the supply of goods or services to a person who is a party to the contract . . . . . . . . . . . . . . . . . . . . . 15 57C References to negotiation of a contract to which this division applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 25 Amendment of s 58 (Contracts to which this division applies) . . . . . . . . . . 15 26 Insertion of new s 58A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 58A Contracts to which this division does not apply . . . . . . . . . . . . . . . . 16 27 Amendment of s 60 (Definition of prescribed contract) . . . . . . . . . . . . . . . . 16 28 Amendment of s 62 (No consideration during cooling-off period) . . . . . . . . 16 29 Insertion of new ss 71A and 71B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 71A Exemptions from division for particular contracts or types of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 71B Register of exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 30 Amendment of s 73 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 31 Omission of pt 3, div 6 (Provisions affecting manufacture and sale of shoes) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 32 Amendment of s 82 (Compliance with information standard) . . . . . . . . . . . 18

 


 

3 Fair Trading Amendment 33 Amendment of s 84 (Compliance with safety standard) . . . . . . . . . . . . . . . 18 34 Amendment of s 84A (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 35 Omission of pt 4, div 4 (Dangerous refrigeration equipment) . . . . . . . . . . . 19 36 Amendment of pt 4, div 5 (Codes of practice) . . . . . . . . . . . . . . . . . . . . . . . 19 37 Amendment of pt 5 (Enforcement and remedies) . . . . . . . . . . . . . . . . . . . . . 19 38 Insertion of new s 88B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 88B Commissioner's power to ask for substantiation of claims about the supply of goods or services . . . . . . . . . . . . . . . . . . . . . . . . . 19 39 Amendment of s 90 (Power to obtain information) . . . . . . . . . . . . . . . . . . . . 21 40 Insertion of new pt 5, div 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Division 1A--General power of inspectors to seize goods Subdivision 1--Seizing and returning goods 91A General power to seize goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 91B Returning the seized goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Subdivision 2--Appealing against seizure of the goods 91C Where and how to start appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 91D Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 91E Powers of Magistrates Court on appeal . . . . . . . . . . . . . . . . . . . . . . . 23 91F Appeal to District Court on questions of law only . . . . . . . . . . . . . . 23 Subdivision 3--Forfeiting the goods 91G Court hearing offence proceeding may order forfeiture of seized goods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 41 Insertion of new pt 5, div 1B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Division 1B--Commissioner's power to accept undertakings 91H Undertaking under a condition of an exemption . . . . . . . . . . . . . . . . 24 91I Undertaking about contravention of Act . . . . . . . . . . . . . . . . . . . . . . 24 91J Variation and withdrawal of undertakings . . . . . . . . . . . . . . . . . . . . . 25 91K Enforcement of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 91L Register of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 42 Amendment of s 92 (Offences) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 43 Insertion of new s 92B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 92B Attempts to commit offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 44 Amendment of s 94 (Proceedings for offences) . . . . . . . . . . . . . . . . . . . . . . 29

 


 

4 Fair Trading Amendment 45 Amendment of s 96 (Vicarious liability) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 46 Amendment of s 98 (Injunctions--TPA ss 79(4), 80, 80A) . . . . . . . . . . . . . 29 47 Amendment of s 105 (Reference to consumer authorities and other matters restricted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 48 Amendment of s 109 (Limitation of action) . . . . . . . . . . . . . . . . . . . . . . . . . 30 49 Amendment of s 110 (Preservation of secrecy) . . . . . . . . . . . . . . . . . . . . . . 30 50 Insertion of new s 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 115 Transitional provision about existing officers . . . . . . . . . . . . . . . . . . 30 PART 3--REPEAL 51 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

 


 

1996 A BILL FOR An Act to amend the Fair Trading Act 1989, and for other purposes

 


 

s1 6 s4 Fair Trading Amendment The Parliament of Queensland enacts-- 1 PART 1--PRELIMINARY 2 title 3 Short Clause 1. This Act may be cited as the Fair Trading Amendment Act 1996. 4 5 Commencement Clause 2. Sections 6, 28, 29, 41 and 50 commence on a day to be fixed by 6 proclamation. 7 PART 2--AMENDMENT OF FAIR TRADING ACT 8 1989 9 amended 10 Act Clause 3. This part amends the Fair Trading Act 1989. 11 of s 5 (Interpretation) 12 Amendment Clause 4.(1) Section 5, heading-- 13 omit, insert-- 14 `Definitions'. 15 (2) Section 5, definitions "assistant commissioner", "shoes" and 16 "sole"-- 17 omit. 18 (3) Section 5, definition "inspector", paragraph (b)-- 19 omit. 20

 


 

s5 7 s6 Fair Trading Amendment (4) Section 5, definition "supply"-- 1 omit, insert-- 2 ` "supply" includes-- 3 (a) for goods-- 4 (i) supply (including resupply) by way of exchange, hire, 5 hire-purchase, lease and sale; and 6 (ii) in part 4, divisions 1, 2 and 3 and part 5, 7 division 1A--exhibit, expose, and have in possession for 8 supply; and 9 (b) for services-- 10 (i) provide, grant and confer; and 11 (ii) in part 4, divisions 1, 2 and 3 and part 5, division 1A--offer 12 to supply.'. 13 of s 5F (Meaning of persons involved in contravention) 14 Amendment Clause 5. Section 5F, `In this Act'-- 15 omit, insert-- 16 `In sections 99, 100 and 112'. 17 of s 19 (Commissioner and other officers) 18 Replacement Clause 6. Section 19-- 19 omit, insert-- 20 and other officers 21 `Commissioner `19.(1) A commissioner for consumer affairs and the inspectors and 22 other officers necessary to assist the commissioner are to be appointed 23 under the Public Service Act 1996. 24 `(2) Judicial notice must be taken of the appointment of the 25 commissioner and of the commissioner's signature.'. 26

 


 

s7 8 s 11 Fair Trading Amendment of new s 19A 1 Insertion Clause 7. After section 19-- 2 insert-- 3 by commissioner 4 `Delegation `19A. The commissioner may delegate the commissioner's powers 5 under this or another Act to a public service officer employed in the 6 department.'. 7 of s 37 (Interpretation--TPA s 51A) 8 Amendment Clause 8. Section 37, heading, after `Interpretation'-- 9 insert-- 10 `for div 1'. 11 of s 40 (False or misleading representations--TPA s 53) 12 Amendment Clause 9. Section 40, penalty, `400 penalty units'-- 13 omit, insert-- 14 `540 penalty units'. 15 of s 40A (False representations and other misleading or 16 Amendment offensive conduct in relation to land--TPA s 53A) 17 Clause 10. Section 40A(1) and (2), penalty, `400 penalty units'-- 18 omit, insert-- 19 `540 penalty units'. 20 of s 41 (Misleading conduct in relation to 21 Amendment employment--TPA s 53B) 22 Clause 11. Section 41, penalty, `400 penalty units'-- 23 omit, insert-- 24 `540 penalty units'. 25

 


 

s 12 9 s 16 Fair Trading Amendment of s 42 (Cash price to be stated in certain 1 Amendment circumstances--TPA s 53C) 2 Clause 12. Section 42, penalty, `400 penalty units'-- 3 omit, insert-- 4 `540 penalty units'. 5 of s 43 (Offering gifts and prizes--TPA s 54) 6 Amendment Clause 13. Section 43, penalty, `400 penalty units'-- 7 omit, insert-- 8 `540 penalty units'. 9 of s 44 (Certain misleading conduct in relation to 10 Amendment goods--TPA s 55) 11 Clause 14. Section 44, penalty, `400 penalty units'-- 12 omit, insert-- 13 `540 penalty units'. 14 of s 45 (Certain misleading conduct in relation to 15 Amendment services--TPA s 55A) 16 Clause 15. Section 45, penalty, `400 penalty units'-- 17 omit, insert-- 18 `540 penalty units'. 19 of s 46 (Bait advertising--TPA s 56) 20 Amendment Clause 16. Section 46(1) and (2), penalty, `400 penalty units'-- 21 omit, insert-- 22 `540 penalty units'. 23

 


 

s 17 10 s 21 Fair Trading Amendment of s 47 (Referral selling--TPA s 57) 1 Amendment Clause 17. Section 47, penalty, `400 penalty units'-- 2 omit, insert-- 3 `540 penalty units'. 4 of s 48 (Accepting payment without intending or being 5 Amendment able to supply as ordered--TPA s 58) 6 Clause 18. Section 40, penalty, `400 penalty units'-- 7 omit, insert-- 8 `540 penalty units'. 9 of s 49 (Misleading representation about certain business 10 Amendment activities--TPA s 59) 11 Clause 19.(1) Section 49(1)-- 12 insert-- 13 `Maximum penalty--540 penalty units.'. 14 (2) Section 49(2), penalty, `400 penalty units'-- 15 omit, insert-- 16 `540 penalty units'. 17 of s 50 (Harassment and coercion--TPA s 60) 18 Amendment Clause 20. Section 50, penalty, `400 penalty units'-- 19 omit, insert-- 20 `540 penalty units'. 21 of s 52 (Assertion of right to payment for unsolicited 22 Amendment goods or services, or for making entry in directory--TPA s 64) 23 Clause 21.(1) Section 52(1), (2) and (3), penalty, `400 penalty units'-- 24 omit, insert-- 25

 


 

s 21 11 s 21 Fair Trading Amendment `540 penalty units'. 1 (2) Section 52(5)(e)-- 2 omit, insert-- 3 `(e) sends an invoice or other document stating the amount of the 4 payment or stating the price of the goods or services or the charge 5 for making the entry, unless the document contains a warning 6 statement complying with subsection (5A).'. 7 (3) Section 52, after subsection (5)-- 8 insert-- 9 `(5A) For subsection (5)(e), a warning statement must-- 10 (a) be printed, at the top of the first page of the document, in upper 11 case and a type not smaller than 18-point; and 12 (b) state `THIS IS A SOLICITATION, NOT AN INVOICE FOR 13 A DEBT INCURRED BY YOU.'.' 14 (4) Section 52(9), definition "directory"-- 15 omit, insert-- 16 ` "directory" includes a journal, magazine, and similar publication, but 17 does not include-- 18 (a) a publication published in good faith as a newspaper at regular 19 intervals; and 20 (b) a publication published, or to be published, by or under the 21 authority of the Australian and Overseas Telecommunications 22 Corporation.'. 23 (5) Section 52(9)-- 24 insert-- 25 ` "entry", in a directory, includes an advertisement promoting a business.'. 26

 


 

s 22 12 s 22 Fair Trading Amendment of new pt 3, div 2A 1 Insertion Clause 22. In part 3, after division 2-- 2 insert-- 3 2A--Pyramid selling 4 `Division for div 2A 5 `Definitions `55A. In this division-- 6 "benefits" means payments or benefits, whether or not as a legally 7 enforceable right. 8 "payments", to or for the benefit of a person, see section 55C. 9 "promoter", of a trading scheme, means a person who, alone or with 10 someone else, promotes the scheme. 11 "trading scheme" see section 55B. 12 of "trading scheme"--TPA s 61 13 `Meaning `55B.(1) A "trading scheme" is a scheme that includes the following 14 elements-- 15 (a) goods, services or both goods and services are to be provided by 16 a promoter of the scheme; 17 (b) the goods or services are to be supplied to or for other persons 18 under transactions arranged or effected by participants in the 19 scheme, not all of whom are promoters of it. 20 `(2) For this section-- 21 (a) a scheme is taken to include the element mentioned in 22 subsection (1)(b) even if a participant who is not a promoter acts 23 in relation to a transaction mentioned in the paragraph as an agent 24 or employee of a promoter or in another capacity; and 25 (b) a scheme includes an arrangement made in connection with the 26 carrying on of a business, whether or not all or part of the 27 arrangement is made or recorded in writing; and 28 (c) a reference to the provision of goods or services by a person is 29

 


 

s 22 13 s 22 Fair Trading Amendment taken to include a reference to the provision of goods or services 1 under an arrangement to which the person is a party. 2 of "payment to or for the benefit of" a person--TPA s 61 3 `Meaning `55C. A reference in this division to making a payment to or for the 4 benefit of a person includes making a payment partly to or for the benefit of 5 the person and partly to or for the benefit of 1 or more other persons. 6 about pyramid selling--TPA s 61 7 `Offences `55D.(1) A person commits an offence if-- 8 (a) the person is a promoter of, or participant in, a trading scheme 9 (the "payee"); and 10 (b) someone else who is, or has applied or been invited to become, a 11 participant in the scheme (the "payer") makes a payment to or 12 for the benefit of the payee; and 13 (c) the payment is made under an inducement of a prospect held out 14 to the payer of receiving benefits for the introduction, by the payer 15 or someone else, of other persons who become participants in the 16 scheme. 17 Maximum penalty--540 penalty units. 18 `(2) A person commits an offence if the person-- 19 (a) is a promoter of, or a participant in, or is otherwise acting in 20 accordance with, a trading scheme; and 21 (b) by holding out to someone else (the "payer") the prospect of 22 receiving benefits for the introduction, by the payer or someone 23 else, of other persons who become participants in the scheme, 24 attempts to induce the payer-- 25 (i) if the payer is already a participant in the scheme--to make a 26 payment to or for the benefit of a promoter or participant in 27 the scheme; or 28 (ii) if the payer is not already a participant in the scheme--to 29 become a participant and to make a payment to or for the 30 benefit of a promoter or participant in the scheme. 31

 


 

s 23 14 s 23 Fair Trading Amendment Maximum penalty--540 penalty units. 1 `(3) A person commits an offence if-- 2 (a) the person promotes or takes part in the promotion of a scheme 3 (the "payee"); and 4 (b) a payment under the scheme is to be made by someone else who 5 participates, or has applied or been invited to participate, in the 6 scheme (the "payer") to or for the benefit of-- 7 (i) the payee or someone else who takes part in the promotion; 8 or 9 (ii) someone else who participates in the scheme; and 10 (c) the inducement under the scheme for making the payment is the 11 holding out to the payer the prospect of receiving benefits from 12 other persons who may participate in the scheme. 13 Maximum penalty--540 penalty units. 14 `(4) For this section, an inducement or attempt to induce is made by 15 holding out a prospect of a type mentioned in the section if the prospect is 16 or would be a substantial part of the inducement.'. 17 of s 57 (Interpretation) 18 Amendment Clause 23.(1) Section 57, heading-- 19 omit, insert-- 20 `Definitions for div 4'. 21 (2) Section 57, definition "consumer", `who is'-- 22 omit, insert-- 23 `who'. 24 (3) Section 57, definition "consumer", paragraph (a), before `an'-- 25 insert-- 26 `is'. 27 (4) Section 57(2) and (3)-- 28 omit. 29

 


 

s 24 15 s 26 Fair Trading Amendment of new ss 57A-57C 1 Insertion Clause 24. After section 57-- 2 insert-- 3 to consumer or supplier under a contract for the supply 4 `References of goods or services 5 `57A. A reference in this division to the consumer or supplier under a 6 contract for the supply of goods or services extends to any person to whom 7 the rights of the original consumer or supplier under the contract are 8 assigned or transferred, or pass by operation of law. 9 to contract for the supply of goods or services to a person 10 `References who is a party to the contract 11 `57B. For this division, a contract is a contract for the supply of goods or 12 services to a person who is a party to the contract if it provides for the 13 supply of goods or services to the person or to someone else but on the 14 order of the person. 15 to negotiation of a contract to which this division applies 16 `References `57C. A reference in this division to negotiation of a contract to which 17 this division applies is a reference to negotiation of a contract that would, on 18 its formation, be a contract to which this division applies.'. 19 of s 58 (Contracts to which this division applies) 20 Amendment Clause 25. Section 58(3)-- 21 omit. 22 of new s 58A 23 Insertion Clause 26. After section 58-- 24 insert-- 25

 


 

s 27 16 s 29 Fair Trading Amendment to which this division does not apply 1 `Contracts `58A.(1) This division does not apply to a contract to supply goods or 2 services for emergency repairs to a person's property damaged by a major 3 incident. 4 `(2) In this section-- 5 "major incident" means an accident, earthquake, fire, flood, storm or 6 similar event.'. 7 of s 60 (Definition of prescribed contract) 8 Amendment Clause 27.(1) Section 60, heading-- 9 omit, insert-- 10 `Meaning of "prescribed contract" '. 11 (2) Section 60(3)(c)-- 12 omit. 13 of s 62 (No consideration during cooling-off period) 14 Amendment Clause 28.(1) Section 62(2), `Subject to subsection (3), if'-- 15 omit, insert-- 16 `If'. 17 (2) Section 62(3)-- 18 omit. 19 of new ss 71A and 71B 20 Insertion Clause 29. After section 71-- 21 insert-- 22 from division for particular contracts or types of 23 `Exemptions contract 24 `71A.(1) A dealer or supplier of goods or services may apply to the chief 25 executive for an exemption for all or any of the provisions of this division 26

 


 

s 29 17 s 29 Fair Trading Amendment for a particular contract or a particular type of contract to be entered into by 1 the dealer or supplier. 2 `(2) The application must-- 3 (a) be written; and 4 (b) state the provisions of the division, and the period, for which the 5 exemption is sought and why it is sought; and 6 (c) be accompanied by the fee prescribed under a regulation. 7 `(3) An exemption may be sought for a limited or unlimited period. 8 `(4) If the chief executive is satisfied that the rights of consumers under 9 the contract or type of contract will not be adversely affected if the 10 exemption is given, the chief executive may, by written notice to the 11 applicant, give the exemption. 12 `(5) The notice must state the period of the exemption and the provisions 13 of the division for which, and the conditions (if any) on which, it is given. 14 `(6) Without limiting the conditions that may be imposed on an 15 exemption, a condition of the exemption may be that the applicant enter into 16 a written undertaking with the commissioner under section 91H1 about the 17 exemption. 18 `(7) To the extent that a contract is exempted from the provisions of this 19 division, the contract is not a contract to which this division applies. 20 `(8) If a person to whom an exemption is given fails to comply with a 21 condition of it, the chief executive may revoke the exemption by written 22 notice given to the person. 23 `(9) The chief executive may delegate the chief executive's powers under 24 this section to a public service officer employed in the department. 25 of exemptions 26 `Register `71B.(1) The chief executive must keep a register containing a copy of 27 each exemption notice given under section 71A. 28 `(2) A person may, on payment of the fee prescribed under a 29 1 Section 91H (Commissioner may accept undertakings)

 


 

s 30 18 s 34 Fair Trading Amendment regulation-- 1 (a) inspect the register at the chief executive's office when the office 2 is open to the public; and 3 (b) obtain a copy of a notice in the register.'. 4 of s 73 (Interpretation) 5 Amendment Clause 30. Section 73, heading-- 6 omit, insert-- 7 `Definitions for div 5'. 8 of pt 3, div 6 (Provisions affecting manufacture and sale of 9 Omission shoes) 10 Clause 31. Part 3, division 6-- 11 omit. 12 of s 82 (Compliance with information standard) 13 Amendment Clause 32. Section 82(4)-- 14 omit. 15 of s 84 (Compliance with safety standard) 16 Amendment Clause 33. Section 84(4)-- 17 omit. 18 of s 84A (Definitions) 19 Amendment Clause 34.(1) Section 84A, heading-- 20 omit, insert-- 21 `Definition for div 3'. 22

 


 

s 35 19 s 38 Fair Trading Amendment (2) Section 84A, definition "supply"-- 1 omit. 2 of pt 4, div 4 (Dangerous refrigeration equipment) 3 Omission Clause 35. Part 4, division 4-- 4 omit. 5 of pt 4, div 5 (Codes of practice) 6 Amendment Clause 36. Part 4, division 5-- 7 renumber as division 4. 8 of pt 5 (Enforcement and remedies) 9 Amendment Clause 37. Part 5, division 1, heading-- 10 omit, insert-- 11 `Division 1--Powers of commissioner and inspectors'. 12 of new s 88B 13 Insertion Clause 38. Part 5, division 1, before section 89-- 14 insert-- 15 power to ask for substantiation of claims about the 16 `Commissioner's supply of goods or services 17 `88B.(1) This section applies if the commissioner believes, on reasonable 18 grounds, that-- 19 (a) a person has caused a statement to be published promoting or 20 apparently intended to promote, the supply of goods or services; 21 and 22 (b) the statement is false or misleading. 23 `(2) The commissioner may, by written notice, ask the person to give to 24 the commissioner written proof that supports any representation made in 25 the statement. 26

 


 

s 38 20 s 38 Fair Trading Amendment `(3) The notice must-- 1 (a) state a day, at least 14 days after the day the notice is served on 2 the person, by which the person must give the proof to the 3 commissioner; and 4 (b) warn the person it is an offence to fail to respond to the notice by 5 the stated day, unless the person has a reasonable excuse for the 6 failure to respond. 7 `(4) The person must respond to the notice by the stated day, unless the 8 person has a reasonable excuse for the failure to respond. 9 Maximum penalty--100 penalty units. 10 `(5) It is not a reasonable excuse for the person to fail to respond to the 11 notice on the ground that information given in the response might tend to 12 incriminate the person. 13 `(6) However, information mentioned in subsection (5) is not admissible 14 in evidence against the person-- 15 (a) for an individual--in any criminal proceedings; or 16 (b) for a body corporate--in any criminal proceedings, other than 17 proceedings under this Act. 18 `(7) If-- 19 (a) the person responds to the notice by the stated day; and 20 (b) the commissioner is not satisfied that the proof given supports the 21 representation; 22 the person does not commit an offence under this section. 23 `(8) However, further action under this Act may be taken against the 24 person in relation to the statement mentioned in subsection (1). 25 26 Example-- 27 An inspector may exercise the inspector's powers under this Act to enter premises and seize things, and obtain information or records.2'. 28 2 See part 5, division 1 (Powers of inspectors).

 


 

s 39 21 s 40 Fair Trading Amendment of s 90 (Power to obtain information) 1 Amendment Clause 39.(1) Section 90(4), `shall not'-- 2 omit, insert-- 3 `must not, without reasonable excuse'. 4 (2) Section 90(5) and (6)-- 5 omit, insert-- 6 `(5) It is not a reasonable excuse for a person to refuse or fail to furnish 7 information, a record or copy of a record on the ground that the 8 information, record or copy might tend to incriminate the person. 9 `(6) However, information mentioned in subsection (5) is not admissible 10 in evidence against the person-- 11 (a) for an individual--in any criminal proceedings; or 12 (b) for a body corporate--in any criminal proceedings, other than 13 proceedings under this Act.'. 14 (3) Section 90(6A), `This subsection'-- 15 omit, insert-- 16 `Subsection (6)'. 17 of new pt 5, div 1A 18 Insertion Clause 40. Part 5, before division 2-- 19 insert-- 20 `Division 1A--General power of inspectors to seize goods 21 1--Seizing and returning goods 22 `Subdivision power to seize goods 23 `General `91A.(1) This division applies if an inspector reasonably believes goods 24 have been supplied in contravention of this Act, other than section 86.3 25 3 Section 86 is about supplying goods or services to which a regulating instrument applies. Section 87 deals with seizure of those goods.

 


 

s 40 22 s 40 Fair Trading Amendment `(2) The inspector may seize enough of the goods-- 1 (a) to decide whether the contravention has happened; or 2 (b) to be used as evidence in a proceeding under this Act about the 3 contravention. 4 5 Example of operation of paragraph (a)-- 6 An inspector may seize a quantity of fabric to test its fibre content and to work 7 out whether its labelling complies with the prescribed information standard about 8 fibre content.4 `(3) If the goods are in a container and it is not practicable to seize them 9 without the container, the inspector may seize the container and its contents. 10 the seized goods 11 `Returning `91B.(1) The commissioner must return the seized goods to their owner 12 at the end of-- 13 (a) 9 months; or 14 (b) if a prosecution for an offence involving the seized goods is 15 started within the 9 months--the prosecution for the offence and 16 any appeal from the prosecution. 17 `(2) Despite subsection (1), the commissioner must return the seized 18 goods to their owner immediately if the commissioner is not satisfied or 19 stops being satisfied the retention of the goods as evidence is necessary. 20 `Subdivision 2--Appealing against seizure of the goods 21 and how to start appeal 22 `Where `91C.(1) A person whose goods have been seized under this division 23 may appeal to the Magistrates Court nearest where the goods were seized. 24 `(2) The appeal is started by-- 25 (a) filing a written notice of appeal with the clerk of the court of the 26 4 For the prescribed information standard about fibre content, see the Fair Trading Regulation 1989, section 6.

 


 

s 40 23 s 40 Fair Trading Amendment Magistrates Court; and 1 (b) giving a copy of the notice to the commissioner. 2 `(3) Without limiting subsection (2)(b), the commissioner is given a 3 copy of the notice if a copy is given to the inspector who seized the goods. 4 `(4) The notice of appeal must state the grounds of the appeal. 5 procedures 6 `Hearing `91D.(1) The power to make rules of court under the Magistrates Courts 7 Act 1921 includes power to make rules of court for appeals to Magistrates 8 Courts under this Act. 9 `(2) The procedure for an appeal to a Magistrates Court under this Act is 10 to be-- 11 (a) in accordance with the rules made under the Magistrates Courts 12 Act 1921; or 13 (b) in the absence of relevant rules, as directed by a magistrate. 14 `(3) In deciding the appeal, the Magistrates Court-- 15 (a) is not bound by the rules of evidence; and 16 (b) must observe natural justice; and 17 (c) may hear the appeal in court or chambers. 18 of Magistrates Court on appeal 19 `Powers `91E. In deciding the appeal, the Magistrates Court may-- 20 (a) confirm the seizure of the goods; or 21 (b) set aside the seizure and order the return of the goods. 22 to District Court on questions of law only 23 `Appeal `91F. A party dissatisfied by the decision of the Magistrates Court may 24 appeal to a District Court, but only on a question of law. 25

 


 

s 41 24 s 41 Fair Trading Amendment `Subdivision 3--Forfeiting the goods 1 hearing offence proceeding may order forfeiture of seized 2 `Court goods 3 `91G.(1) If, in proceedings for an offence for which goods were seized, 4 the court finds the offence proved and that the offence concerned goods 5 seized and retained by an inspector, the court may order that the goods be 6 forfeited to the Crown. 7 `(2) The forfeited goods may be disposed of in any way the Minister 8 directs.'. 9 of new pt 5, div 1B 10 Insertion Clause 41. After section 91G-- 11 insert-- 12 `Division 1B--Commissioner's power to accept undertakings 13 under a condition of an exemption 14 `Undertaking `91H.(1) The commissioner may accept an undertaking from a person as 15 a condition of exemption under section 71A.5 16 `(2) The undertaking binds the person to terms decided by the chief 17 executive about the person's acts or omissions in relation to the exemption. 18 about contravention of Act 19 `Undertaking `91I.(1) If the commissioner reasonably believes a person has 20 contravened or been involved in a contravention of a provision of this Act 21 or a code of practice, the commissioner may, by written notice given to the 22 person-- 23 (a) state the act or omission the commissioner reasonably believes is 24 the contravention; and 25 5 Section 71A (Exemptions from division for particular contracts and types of contract)

 


 

s 41 25 s 41 Fair Trading Amendment (b) ask the person to give the commissioner a written undertaking 1 that the person will not continue or repeat the act or omission. 2 `(2) If-- 3 (a) the person gives the undertaking, and if the contravention is 4 conduct consisting of a series of acts or omissions, the person 5 stops the conduct; and 6 (b) the commissioner accepts the undertaking; 7 the commissioner can not start an offence proceeding against the person for 8 the contravention, unless the commissioner withdraws the undertaking 9 under section 91J. 10 and withdrawal of undertakings 11 `Variation `91J.(1) If the commissioner accepts an undertaking under section 91H 12 or 91I, it may be varied or withdrawn at any time by-- 13 (a) the person who gave it, but only if the commissioner agrees to the 14 variation or withdrawal; or 15 (b) the commissioner, if the commissioner reasonably believes that 16 before it was accepted-- 17 (i) the person who gave it contravened this Act in a way 18 unknown to the commissioner; and 19 (ii) had the commissioner known about the contravention, the 20 commissioner would not have accepted the undertaking or 21 would not have accepted it unless its terms were changed. 22 `(2) The commissioner may also withdraw the undertaking if the 23 commissioner reasonably believes it is no longer necessary. 24 `(3) If the commissioner varies or withdraws the undertaking, the 25 commissioner must give the person who gave it written notice of its 26 variation or withdrawal. 27 of undertakings 28 `Enforcement `91K.(1) If the commissioner reasonably believes a person has 29 contravened a term of an undertaking, the commissioner may apply to the 30

 


 

s 42 26 s 42 Fair Trading Amendment court for an order under this section. 1 `(2) If the court is satisfied that the person has contravened the term, the 2 court may make 1 or more of the following orders-- 3 (a) an order directing the person to comply with the term; 4 (b) an order directing the person to pay to the Crown an amount that 5 is not more than the direct or indirect financial benefit obtained by 6 the person from, and reasonably attributable to, the breach; 7 (c) an order directing the person to pay compensation to someone 8 else who has suffered loss or damage because of the breach; 9 (d) an order directing the person to give a security bond to the Crown 10 for a stated period; 11 (e) any other order the court considers appropriate. 12 `(3) The Supreme Court or a District Court may order the forfeiture to 13 the Crown of all or part of a security bond given by a person under 14 subsection (2)(d) if-- 15 (a) the commissioner applies to the court for the order; and 16 (b) the court is satisfied that the person contravened the undertaking 17 during the period for which the bond was given. 18 of undertakings 19 `Register `91L.(1) The commissioner is to keep a register of each undertaking 20 given to the commissioner by a person under this division. 21 `(2) The register is to contain a copy of the undertaking. 22 `(3) A person may, on payment of the fee prescribed under a 23 regulation-- 24 (a) inspect the register at the commissioner's office when the office 25 is open to the public; and 26 (b) obtain a copy of an undertaking in the register.'. 27 of s 92 (Offences) 28 Amendment Clause 42.(1) Section 92(3), as heading-- 29

 


 

s 43 27 s 43 Fair Trading Amendment insert-- 1 `Aggregate penalties limited'. 2 (2) Section 92(3)-- 3 renumber as section 92A. 4 (3) Section 92(1)(c), `or attempts to induce'-- 5 omit. 6 (4) Section 92(1), `other than section 38 or 39 or a code of practice'-- 7 omit, insert-- 8 `for which a penalty is provided'. 9 (5) After section 92(1)-- 10 insert-- 11 `(2) Each of the persons mentioned in subsection (1)(a) to (d) is taken to 12 have committed the offence that is the contravention of the provision and 13 may be charged with actually committing the offence. 14 `(3) A person who counsels, procures, or induces another person to 15 contravene the provision may be charged with committing the offence or 16 with counselling, procuring or inducing the commission of the offence. 17 `(4) A conviction of counselling, procuring or inducing the commission 18 of the offence, or conspiring to commit the offence, has the same 19 consequences in all respects as a conviction of committing the offence. 20 `(5) Subsection (1)(b) to (d) only applies when a provision of this Act is 21 contravened. 22 `(6) This section is in addition to, and does not limit, the Criminal Code, 23 chapter 2 and the Acts Interpretation Act 1954, section 41A.6'. 24 of new s 92B 25 Insertion Clause 43. After section 92A-- 26 insert-- 27 6 Criminal Code, chapter 2 (Parties to offences) Acts Interpretation Act 1954, section 41A (Penalty other than at end of provision)

 


 

s 43 28 s 43 Fair Trading Amendment to commit offences 1 `Attempts `92B.(1) A person who attempts to commit an offence mentioned in 2 subsection (2) commits an offence. 3 Maximum penalty--the maximum penalty for committing the offence 4 attempted. 5 `(2) Subsection (1) applies to an offence against any of the following 6 provisions-- 7 section 40A(2) 8 section 41 9 section 44 10 section 45 11 section 47 12 section 48 13 section 50 14 section 55(1) 15 section 56(1) 16 section 62(1) or (2) 17 section 65 18 section 82(1) 19 section 84(1) 20 section 86.7 21 7 Section 40A(2) (False representations and other misleading or offensive conduct in relation to land--TPA s 53A) Section 41 (Misleading conduct in relation to employment--TPA s 53B) Section 44 (Certain misleading conduct in relation to goods--TPA s 55) Section 45 (Certain misleading conduct in relation to services--TPA s 55A) Section 47 (Referral selling--TPA s 57) Section 48 (Accepting payment without intending or being able to supply as ordered--TPA s 58) Section 50 (Harassment and coercion--TPA s 60) Section 55(1) (Obscene material not to be sent) Section 56(1) (Prohibition on mock auctions) Section 62(1) and (2) (No consideration during cooling-off period) Section 65 (Harassment or coercion) Section 82(1) (Compliance with information standard) Section 84(1) (Compliance with safety standard) Section 86 (Offence)

 


 

s 44 29 s 47 Fair Trading Amendment `(3) The Criminal Code, section 4,8 applies to subsection (1). 1 `(4) A person charged with an offence mentioned in subsection (2) may 2 be convicted of attempting to commit the offence.'. 3 of s 94 (Proceedings for offences) 4 Amendment Clause 44. Section 94(4)(c)-- 5 omit. 6 of s 96 (Vicarious liability) 7 Amendment Clause 45. Section 96-- 8 insert-- 9 `(2) However, it is a defence in a proceeding against a director or 10 member of the governing body of a body corporate under subsection (1) for 11 the director or member to prove that information that tended to incriminate 12 the body corporate was obtained under section 88B or 90.'. 13 of s 98 (Injunctions--TPA ss 79(4), 80, 80A) 14 Amendment Clause 46. Section 98(2)(a)-(f) and (4), after `practice'-- 15 insert-- 16 `or a term of an undertaking given under section 91H'. 17 of s 105 (Reference to consumer authorities and other 18 Amendment matters restricted) 19 Clause 47. Section 105(a), `, an assistant commissioner'-- 20 omit. 21 8 Criminal Code, section 4 (Attempts to commit offences)

 


 

s 48 30 s 50 Fair Trading Amendment of s 109 (Limitation of action) 1 Amendment Clause 48. Section 109(1)(a), `an assistant commissioner,'-- 2 omit. 3 of s 110 (Preservation of secrecy) 4 Amendment Clause 49. Section 110(2)(a), `an assistant commissioner,'-- 5 omit. 6 of new s 115 7 Insertion Clause 50. After section 114-- 8 insert-- 9 provision about existing officers 10 `Transitional `115.(1) A person holding office as 1 of the following officers 11 immediately before the commencement of this section is taken to have been 12 appointed under the Public Service Act 1996 as the officer for the remainder 13 of the person's term of appointment-- 14 (a) commissioner for consumer affairs; 15 (b) inspector; 16 (c) other officer. 17 `(2) This section expires the day after it commences.'. 18

 


 

s 51 31 s 51 Fair Trading Amendment PART 3--REPEAL 1 2 Repeal Clause 51. The Pyramid Selling Schemes (Elimination) Act 1973 is repealed. 3 4 State of Queensland 1996

 


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