FAIR TRADING (AUSTRALIAN CONSUMER LAW) AMENDMENT BILL 2010

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FAIR TRADING (AUSTRALIAN CONSUMER LAW) AMENDMENT BILL 2010

Queensland Fair Trading (Australian Consumer Law) Amendment Bill 2010

Queensland Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Part 2 Amendment of Fair Trading Act 1989 3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5 Amendment of s 3 (Objective of this Act) . . . . . . . . . . . . . . . . . . . 10 6 Replacement of s 4 (Application of Act) . . . . . . . . . . . . . . . . . . . . 11 4 This part does not apply for the Australian Consumer Law (Queensland) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4A Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4B Reference to this Act or to a particular provision of the Australian Consumer Law (Queensland) . . . . . . . 12 7 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8 Replacement of s 5A (Meaning of engaging in conduct and conduct) ........................................ 15 5A Engaging in conduct and related matters. . . . . . . . . . 15 9 Omission of s 5B (Effect of provision dealing with enforceability of a contract) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10 Amendment of s 5C (Further meaning of acquisition, supply or resupply of goods or services) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 11 Omission of ss 5E-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 12 Replacement of pt 2 hdg, pt 2, div 1 and pt 2, div 2 hdg . . . . . . . 16 Part 2 Commissioner for fair trading 8 Commissioner for fair trading . . . . . . . . . . . . . . . . . . . 16 13 Amendment of s 19 (Commissioner and other officers) . . . . . . . . 17 14 Omission of s 20 (Office of Fair Trading) . . . . . . . . . . . . . . . . . . . 17

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents 15 Amendment of s 21 (Functions of office) . . . . . . . . . . . . . . . . . . . 17 16 Renumbering of ss 19-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 17 Omission of pt 2, div 3 (Consumer Safety Committee) . . . . . . . . 18 18 Replacement of pt 3 (Trade practices) . . . . . . . . . . . . . . . . . . . . . 18 Part 3 The Australian Consumer Law Division 1 Definitions 14 Definitions for pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Division 2 Application of Australian Consumer Law 15 The Australian Consumer Law text. . . . . . . . . . . . . . . 21 16 Application of Australian Consumer Law . . . . . . . . . . 21 17 Future modifications of Australian Consumer Law text 22 18 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction . . . . . . . . . . . . . . 22 19 Interpretation of Australian Consumer Law . . . . . . . . 22 20 Application of Australian Consumer Law . . . . . . . . . . 23 Division 3 References to Australian Consumer Law 21 References to Australian Consumer Law . . . . . . . . . . 23 22 References to Australian Consumer Law of other jurisdictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Division 4 Application of Australian Consumer Law to jurisdictions 23 Division does not apply to Commonwealth . . . . . . . . 24 24 Application law of this jurisdiction. . . . . . . . . . . . . . . . 24 25 Application law of other jurisdictions . . . . . . . . . . . . . 24 26 Activities that are not business . . . . . . . . . . . . . . . . . . 25 27 Jurisdictions not liable to penalty or prosecution . . . . 26 Division 5 Miscellaneous 28 Conferral of functions and powers on certain bodies . 27 29 No doubling-up of liabilities . . . . . . . . . . . . . . . . . . . . 27 Part 3A Provisions supporting application of Australian Consumer Law as a law of Queensland Division 1 Infringement notices 30 Purpose and effect of this division . . . . . . . . . . . . . . . 28 31 Issuing infringement notice. . . . . . . . . . . . . . . . . . . . . 29 32 Matters to be included in infringement notice. . . . . . . 30 33 Amount of penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 34 Effect of compliance with infringement notice . . . . . . 34 Page 2

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents 35 Effect of failure to comply with infringement notice . . 34 36 Infringement notice compliance period for infringement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 37 Withdrawal of infringement notice . . . . . . . . . . . . . . . 36 Division 2 Embargo notices 38 Definition for div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 39 Embargo notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 40 Embargo period for embargo notice . . . . . . . . . . . . . . 39 41 Multiple embargo notice for supply of the same kind of goods or services from the same premises . . . . . . 40 42 Power of inspector to secure goods . . . . . . . . . . . . . . 40 43 Power of inspector to secure equipment used to supply services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 44 Approval relating to embargoed goods or services . . 41 45 Compliance with embargo notice . . . . . . . . . . . . . . . . 41 Division 3 Orders for the preservation of property 46 Court may make order for preserving money or other property held by a person. . . . . . . . . . . . . . . . . . . . . . 43 47 Compliance with orders made under this division . . . 46 Division 4 Court jurisdiction 48 Purpose and scope of division . . . . . . . . . . . . . . . . . . 46 49 Jurisdiction extends to provisions having wider application ............................. 47 50 Proceedings referred to court of competent jurisdiction ........................... 47 51 Proceedings referred to particular court . . . . . . . . . . . 49 Division 5 Miscellaneous 52 Miscellaneous supporting provision for proceedings for recovery of pecuniary penalties . . . . . . . . . . . . . . 54 53 Interpretation of offence provisions . . . . . . . . . . . . . . 55 54 Gazettal of notice under Australian Consumer Law (Queensland) about interim ban, recall notice or safety warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 55 Limitation on right to itemised bill . . . . . . . . . . . . . . . . 56 Part 3B Provisions utilising Australian Consumer Law (Queensland) provisions 56 Australian Consumer Law (Queensland) not limited . 56 57 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 58 Prosecutions to be commenced within 3 years . . . . . 57 Page 3

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents 59 Preference must be given to compensation for victims 57 60 Penalties for contraventions of the same nature for FTA offence provisions . . . . . . . . . . . . . . . . . . . . . . . . 58 61 General provision about injunctions and other remedies ............................. 58 62 Undertakings for matters arising other than under Australian Consumer Law (Queensland) . . . . . . . . . . 58 63 Public warning notices . . . . . . . . . . . . . . . . . . . . . . . . 59 64 Pecuniary penalties for FTA consumer offence provisions ............................. 59 65 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 66 Actions for damages. . . . . . . . . . . . . . . . . . . . . . . . . . 60 67 Orders for compensation or redress. . . . . . . . . . . . . . 61 68 Non-punitive orders . . . . . . . . . . . . . . . . . . . . . . . . . . 61 69 Adverse publicity orders . . . . . . . . . . . . . . . . . . . . . . . 61 70 Orders disqualifying a person from managing a corporation ............................. 62 71 Privilege against exposure to penalty or forfeiture--disqualification from managing a corporation ............................ 62 72 Publication of advertisement in the ordinary course of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 73 Supplying services for the purpose of resupply . . . . . 63 19 Amendment of pt 4 hdg (Information, safety and codes of practice) ....................................... 63 20 Omission of pt 4, div 1 (Information provisions) . . . . . . . . . . . . . . 63 21 Amendment of s 83 (Safety standards) . . . . . . . . . . . . . . . . . . . . 63 22 Amendment of s 84 (Compliance with safety standard) . . . . . . . . 64 23 Amendment of s 84A (Definition for div 3) . . . . . . . . . . . . . . . . . . 64 24 Amendment of s 85 (Minister may make orders prohibiting or restricting supply of dangerous or undesirable goods or services) 65 25 Amendment of s 85A (Interim orders) . . . . . . . . . . . . . . . . . . . . . 65 26 Amendment of s 86 (Offence) . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 27 Amendment of s 87 (Seizure etc. of goods in certain cases) . . . . 66 28 Replacement of s 88B (Commissioner's power to ask for substantiation of claims about the supply of goods or services) . 67 88B Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 29 Amendment of s 89 (Powers of inspectors) . . . . . . . . . . . . . . . . . 68 30 Amendment of s 90 (Power to obtain information) . . . . . . . . . . . . 68 Page 4

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents 31 Amendment of s 91A (General power to seize goods). . . . . . . . . 68 32 Amendment of s 91B (Returning the seized goods). . . . . . . . . . . 68 33 Amendment of s 91D (Hearing procedures). . . . . . . . . . . . . . . . . 69 34 Replacement of pt 5, div 1B hdg (Commissioner's power to accept undertakings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 35 Omission of ss 91H-91K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 36 Amendment of s 91L (Register of undertakings) . . . . . . . . . . . . . 70 37 Amendment of s 92 (Offences). . . . . . . . . . . . . . . . . . . . . . . . . . . 70 38 Omission of s 92A (Aggregate penalties limited) . . . . . . . . . . . . . 70 39 Amendment of s 92B (Attempts to commit offences) . . . . . . . . . . 70 40 Amendment of s 94 (Proceedings for offences) . . . . . . . . . . . . . . 70 41 Amendment of s 95 (Conduct by directors, servants or agents--TPA s 84) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 42 Amendment of s 96 (Vicarious liability) . . . . . . . . . . . . . . . . . . . . 72 43 Amendment of s 97 (Defences in proceedings for an offence against this Act--TPA s 85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 44 Omission of ss 98-100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 45 Amendment of s 101 (Mode of enforcement of compensation) . . 73 46 Omission of ss 102 and 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 47 Amendment of s 103A (Examination costs) . . . . . . . . . . . . . . . . . 74 48 Amendment of s 104 (Impersonation) . . . . . . . . . . . . . . . . . . . . . 74 49 Amendment of s 105 (Reference to consumer authorities and other matters restricted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 50 Omission of s 108 (Severability) . . . . . . . . . . . . . . . . . . . . . . . . . . 75 51 Amendment of s 109 (Limitation of action). . . . . . . . . . . . . . . . . . 75 52 Omission of s 109A (Insurance contracts--limitation on effect of information disclosure) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 53 Amendment of s 110 (Preservation of secrecy) . . . . . . . . . . . . . . 75 54 Omission of s 111 (Service of documents etc.) . . . . . . . . . . . . . . 76 55 Amendment of s 112 (Evidence) . . . . . . . . . . . . . . . . . . . . . . . . . 76 56 Omission of s 116 (Transitional provision for references to Office of Consumer Affairs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 57 Insertion of new pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Part 10 Transitional provisions for Fair Trading (Australian Consumer Law) Amendment Act 2010 119 Definitions for this part . . . . . . . . . . . . . . . . . . . . . . . . 77 120 Transitional provision for references to Office of Consumer Affairs or Office of Fair Trading . . . . . . . . . 77 Page 5

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents 121 Transitional provision relating to undertakings and the register of undertakings . . . . . . . . . . . . . . . . . . . . 78 122 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 58 Amendment of schedule (Subject matters for regulations). . . . . . 79 Part 3 Amendment of Security Providers Act 1993 59 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 60 Insertion of new s 7A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 7A Who is a relevant person . . . . . . . . . . . . . . . . . . . . . . 80 61 Amendment of s 10 (Application) . . . . . . . . . . . . . . . . . . . . . . . . . 80 62 Amendment of s 14 (Decision on application) . . . . . . . . . . . . . . . 80 63 Amendment of s 20 (Renewal of unrestricted licence) . . . . . . . . . 81 64 Insertion of new pt 2, div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Division 7 Fingerprint procedures 27 Fingerprints to be taken . . . . . . . . . . . . . . . . . . . . . . . 82 28 Chief executive must refuse to grant, or renew, licence if fingerprints have not been taken . . . . . . . . . 82 29 Commissioner to give chief executive information about a person's identity derived from fingerprints. . . 82 30 Use of fingerprints by Commissioner . . . . . . . . . . . . . 83 31 Destruction of fingerprints . . . . . . . . . . . . . . . . . . . . . 83 65 Insertion of new pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Part 7 Transitional provisions for Fair Trading (Australian Consumer Law) Amendment Act 2010 65 When provisions relating to application for licence, or renewal of unrestricted licence, do not apply . . . . . . . 84 66 Deferral of application of provisions relating to application for renewal of unrestricted licence . . . . . . 85 66 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 85 Part 4 Amendment of other Acts 67 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Schedule Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Chicken Meat Industry Committee Act 1976 . . . . . . . . . . . . . . . . 86 Civil Liability Act 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Competition Policy Reform (Queensland) Act 1996 . . . . . . . . . . . 86 Criminal Proceeds Confiscation Act 2002 . . . . . . . . . . . . . . . . . . 87 Dental Technicians Registration Act 2001 . . . . . . . . . . . . . . . . . . 88 Electricity Act 1994. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Page 6

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Contents Gas Supply Act 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Gladstone Power Station Agreement Act 1993 . . . . . . . . . . . . . . 91 Health Practitioners (Professional Standards) Act 1999 . . . . . . . 92 Introduction Agents Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Jurisdiction of Courts (Cross-vesting) Act 1987 . . . . . . . . . . . . . . 93 Medical Radiation Technologists Registration Act 2001. . . . . . . . 94 Occupational Therapists Registration Act 2001 . . . . . . . . . . . . . . 94 Property Agents and Motor Dealers Act 2000 . . . . . . . . . . . . . . . 95 Queensland Building Services Authority Act 1991 . . . . . . . . . . . . 95 Queensland Competition Authority Act 1997 . . . . . . . . . . . . . . . . 96 Racing Act 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Retail Shop Leases Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Retirement Villages Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Speech Pathologists Registration Act 2001 . . . . . . . . . . . . . . . . . 97 State Buildings Protective Security Act 1983 . . . . . . . . . . . . . . . . 98 Subcontractors' Charges Act 1974. . . . . . . . . . . . . . . . . . . . . . . . 98 Sugar Industry Act 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Tourism Services Act 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Transport Operations (Passenger Transport) Act 1994 . . . . . . . . 101 Travel Agents Act 1988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Page 7

2010 A Bill for An Act to amend the Fair Trading Act 1989 to apply the Australian Consumer Law of the Commonwealth as a law of Queensland and for other particular purposes, to make consequential amendments to the Acts stated in the schedule, and to amend the Security Providers Act 1993 for particular purposes

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Fair Trading (Australian 4 Consumer Law) Amendment Act 2010. 5 Clause 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 Part 2 Amendment of Fair Trading Act 8 1989 9 Clause 3 Act amended 10 This part amends the Fair Trading Act 1989. 11 Clause 4 Amendment of long title 12 Long title, `consumer authorities'-- 13 omit, insert-- 14 `a commissioner for fair trading'. 15 Clause 5 Amendment of s 3 (Objective of this Act) 16 Section 3, from `to provide'-- 17 omit, insert-- 18 Page 10

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 6] `to improve consumer wellbeing through consumer 1 empowerment and protection, fostering effective competition 2 and enabling the confident participation of consumers in 3 markets in which both consumers and suppliers trade fairly.'. 4 Clause 6 Replacement of s 4 (Application of Act) 5 Section 4-- 6 omit, insert-- 7 `4 This part does not apply for the Australian Consumer 8 Law (Queensland) 9 `This part (other than sections 1 and 3) does not apply for the 10 interpretation or operation of the Australian Consumer Law 11 (Queensland). 12 Example-- 13 The definitions in section 5 of this Act do not apply for the 14 interpretation of the Australian Consumer Law (Queensland). That law 15 has its own list of definitions in section 2 of that law. 16 `4A Application of Act 17 `(1) This Act applies to and in relation to-- 18 (a) persons carrying on business within Queensland; or 19 (b) bodies corporate incorporated or registered under the 20 law of Queensland; or 21 (c) persons ordinarily resident in Queensland; or 22 (d) persons otherwise connected with Queensland. 23 `(2) Subject to subsection (1), this Act extends to conduct, and 24 other acts, matters and things, occurring or existing outside or 25 partly outside Queensland (whether within or outside 26 Australia). 27 Page 11

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 7] `4B Reference to this Act or to a particular provision of 1 the Australian Consumer Law (Queensland) 2 `(1) To remove any doubt, a reference in this Act to this Act may 3 be taken to include a reference to the Australian Consumer 4 Law (Queensland). 5 Example-- 6 Section 90 (Power to obtain information) refers to any matter relevant to 7 the operation or enforcement of this Act, which would include any 8 matter relevant to the operation or enforcement of the Australian 9 Consumer Law (Queensland). 10 `(2) In this Act, a reference to a particular provision of the 11 Australian Consumer Law (Queensland) is a reference to the 12 provision of that number in schedule 2 of the Competition and 13 Consumer Act, applying as a law of Queensland under part 14 3.'. 15 Clause 7 Amendment of s 5 (Definitions) 16 (1) Section 5, definitions acquire, approved form, auction, 17 business, committee, component part, consumer, council, 18 court, credit, giving effect to, goods, hire-purchase agreement, 19 interest, office, premises, price, provision, services, supply, 20 TPA, trade or commerce, unsolicited goods and unsolicited 21 services-- 22 omit. 23 (2) Section 5-- 24 insert-- 25 `ACL(Q) means the Australian Consumer Law (Queensland). 26 acquire, in relation to services, includes accept. 27 application law, for part 3, see section 14(1). 28 Australian Consumer Law (Queensland) means the 29 Australian Consumer Law (Queensland) as provided for in 30 part 3. 31 Australian Consumer Law text see section 14(1). 32 Page 12

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 7] Competition and Consumer Act means the Competition and 1 Consumer Act 2010 (Cwlth). 2 consumer has the same meaning as it has in the Australian 3 Consumer Law (Queensland). 4 consumer contract has the same meaning as it has in the 5 Australian Consumer Law (Queensland). 6 District Court means the District Court of Queensland. 7 embargo notice see section 39(1). 8 embargo period, for an embargo notice, means the period 9 stated in the embargo notice under section 39(4)(c) or (d). 10 evidential burden, in relation to a matter, means the burden of 11 adducing or pointing to evidence that suggests a reasonable 12 possibility that the matter exists or does not exist. 13 executive officer, of a corporation, means a person who is 14 concerned with, or takes part in, the corporation's 15 management, whether or not the person is a director or the 16 person's position is given the name of executive officer. 17 extended application see section 56(1). 18 FTA consumer offence provision means-- 19 (a) section 84(1); or 20 (b) section 86. 21 FTA offence provision means-- 22 (a) an FTA consumer offence provision; or 23 (b) section 45; or 24 (c) section 47; or 25 (d) section 90(4); or 26 (e) section 91; or 27 (f) section 92(1)(b), (c), (d) or (e): or 28 (g) section 92B; or 29 Page 13

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 7] (h) section 104; or 1 (i) section 105. 2 goods has the same meaning as it has in the Australian 3 Consumer Law (Queensland). 4 infringement notice means an infringement notice issued 5 under section 31(1). 6 infringement notice compliance period see section 36(1). 7 infringement notice provision see section 31(2). 8 instrument, for part 3, see section 14(1). 9 Intergovernmental Agreement, for part 3, see section 14(1). 10 involved, in relation to a contravention, or conduct that 11 constitutes a contravention, of a provision of this Act, has the 12 same meaning as it has in the Australian Consumer Law 13 (Queensland) in relation to a contravention, or conduct that 14 constitutes a contravention, of a provision of that law. 15 jurisdiction see section 14(1). 16 law, for part 3, see section 14(1). 17 listed corporation has the meaning given by the Corporations 18 Act, section 9. 19 Magistrates Court has the meaning given by the Acts 20 Interpretation Act 1954, section 36. 21 Note-- 22 The Competition and Consumer Act confers jurisdiction on the Federal 23 Magistrates Court for particular matters arising under the Australian 24 Consumer Law applying as a law of the Commonwealth, but that court 25 does not have jurisdiction in relation to matters arising under the 26 Australian Consumer Law (Queensland). 27 modifications, for part 3, see section 14(1). 28 month, for part 3, see section 14(1). 29 participating jurisdiction, for part 3, see section 14(1). 30 premises has the same meaning as it has in the Australian 31 Consumer Law (Queensland). 32 Page 14

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 8] product related service has the same meaning as it has in the 1 Australian Consumer Law (Queensland). 2 services has the same meaning as it has in the Australian 3 Consumer Law (Queensland). 4 State, for part 3, see section 14(1). 5 supply has the same meaning as it has in the Australian 6 Consumer Law (Queensland). 7 Supreme Court means the Supreme Court of Queensland. 8 Territory, for part 3, see section 14(1). 9 the tribunal means QCAT. 10 this jurisdiction, for part 3, see section 14(1). 11 trade or commerce has the same meaning as it has in the 12 Australian Consumer Law (Queensland).'. 13 Clause 8 Replacement of s 5A (Meaning of engaging in conduct 14 and conduct) 15 Section 5A-- 16 omit, insert-- 17 `5A Engaging in conduct and related matters 18 `The Australian Consumer Law (Queensland), section 2(2) 19 applies for the interpretation of this Act in relation to the 20 matters mentioned in it.'. 21 Clause 9 Omission of s 5B (Effect of provision dealing with 22 enforceability of a contract) 23 Section 5B-- 24 omit. 25 Page 15

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 10] Clause 10 Amendment of s 5C (Further meaning of acquisition, 1 supply or resupply of goods or services) 2 (1) Section 5C, heading, `, supply or resupply of goods or 3 services'-- 4 omit, insert-- 5 `or supply of services'. 6 (2) Section 5C(a), (c) and (e)-- 7 omit. 8 (3) Section 5C(b), `goods or'-- 9 omit. 10 (4) Section 5C(d), `both; and'-- 11 omit, insert-- 12 `both.'. 13 (5) Section 5C(b) and (d), as amended-- 14 renumber as section 5C(a) and (b). 15 Clause 11 Omission of ss 5E-6 16 Sections 5E to 6-- 17 omit. 18 Clause 12 Replacement of pt 2 hdg, pt 2, div 1 and pt 2, div 2 hdg 19 Part 2, heading, part 2, division 1 and part 2, division 2, 20 heading-- 21 omit, insert-- 22 `Part 2 Commissioner for fair trading 23 `8 Commissioner for fair trading 24 `(1) There is to be a commissioner for fair trading. 25 Page 16

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 13] `(2) Subject to subsection (3), the person who is the chief 1 executive is, without further appointment, also the 2 commissioner for fair trading. 3 `(3) If the chief executive appoints another person to be the 4 commissioner, that person is the commissioner while the 5 appointment is in force. 6 `(4) A person may hold the office of commissioner as well as 7 holding an office under the Public Service Act 2008. 8 `(5) Judicial notice must be taken of the commissioner's 9 signature.'. 10 Clause 13 Amendment of s 19 (Commissioner and other officers) 11 (1) Section 19, heading, `Commissioner and other'-- 12 omit, insert-- 13 `Other'. 14 (2) Section 19(1), `A commissioner for fair trading and the'-- 15 omit, insert-- 16 `The'. 17 (3) Section 19(2)-- 18 omit. 19 Clause 14 Omission of s 20 (Office of Fair Trading) 20 Section 20-- 21 omit. 22 Clause 15 Amendment of s 21 (Functions of office) 23 (1) Section 21, heading, `office'-- 24 omit, insert-- 25 `commissioner'. 26 (2) Section 21(1), `office shall be'-- 27 Page 17

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 16] omit, insert-- 1 `commissioner are'. 2 (3) Section 21(1)(f), `the bureau'-- 3 omit, insert-- 4 `the commissioner'. 5 (4) Section 21(1)(g) and (h)-- 6 omit. 7 (5) Section 21(1)(i), (j) and (k)-- 8 renumber as section 21(1)(g), (h) and (i). 9 (6) Section 21(1)(i), as renumbered, `it'-- 10 omit, insert-- 11 `the commissioner'. 12 (7) Section 21(2), `of the office'-- 13 omit, insert-- 14 `of the department'. 15 Clause 16 Renumbering of ss 19-23 16 Sections 19, 19A, 21, 22 and 23-- 17 renumber as sections 9, 10, 11, 12 and 13 respectively. 18 Clause 17 Omission of pt 2, div 3 (Consumer Safety Committee) 19 Part 2, division 3-- 20 omit. 21 Clause 18 Replacement of pt 3 (Trade practices) 22 Part 3-- 23 omit, insert-- 24 Page 18

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `Part 3 The Australian Consumer Law 1 `Division 1 Definitions 2 `14 Definitions for pt 3 3 `(1) In this part, unless the contrary intention appears-- 4 application law means-- 5 (a) a law of a participating jurisdiction that applies the 6 Australian Consumer Law, either with or without 7 modifications, as a law of the participating jurisdiction; 8 or 9 (b) any regulations or other legislative instrument made 10 under a law described in paragraph (a); or 11 (c) the Australian Consumer Law, applying as a law of the 12 participating jurisdiction, either with or without 13 modifications. 14 Australian Consumer Law means (according to the 15 context)-- 16 (a) the Australian Consumer Law text; or 17 (b) the Australian Consumer Law text, applying as a law of 18 a participating jurisdiction, either with or without 19 modifications. 20 Australian Consumer Law text means the text described in 21 section 15. 22 instrument means any document whatever, including the 23 following-- 24 (a) an Act or an instrument made under an Act; 25 (b) a law of this jurisdiction or an instrument made under 26 such a law; 27 (c) an award or other industrial determination or order, or 28 an industrial agreement; 29 Page 19

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (d) any other order (whether executive, judicial or 1 otherwise); 2 (e) a notice, certificate or licence; 3 (f) an agreement; 4 (g) an application made, information or complaint laid, 5 affidavit sworn, or warrant issued, for any purpose; 6 (h) an indictment, presentment, summons or writ; 7 (i) any other pleading in, or process issued in connection 8 with, a legal or other proceeding. 9 Intergovernmental Agreement means the Intergovernmental 10 Agreement for the Australian Consumer Law made on 2 July 11 2009 between the Commonwealth, the State of New South 12 Wales, the State of Victoria, the State of Queensland, the State 13 of Western Australia, the State of South Australia, the State of 14 Tasmania, the Australian Capital Territory and the Northern 15 Territory of Australia, as in force for the time being. 16 jurisdiction means a State or the Commonwealth. 17 law, in relation to a Territory, means a law of, or in force in, 18 that Territory. 19 modifications includes additions, omissions and substitutions. 20 month means a period commencing at the beginning of a day 21 of one of the 12 months of the year and ending immediately 22 before the beginning of the corresponding day of the next 23 month or, if there is no such corresponding day, ending at the 24 expiration of the next month. 25 notification, for a regulation, see the Statutory Instruments 26 Act 1992, section 47. 27 participating jurisdiction means a jurisdiction that is a party 28 to the Intergovernmental Agreement and applies the 29 Australian Consumer Law as a law of the jurisdiction, either 30 with or without modifications. 31 State includes a Territory. 32 Page 20

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Territory means the Australian Capital Territory or the 1 Northern Territory of Australia. 2 this jurisdiction means Queensland. 3 `(2) Terms used in this part and also in the Australian Consumer 4 Law (Queensland) have the same meanings in this part as they 5 have in that law. 6 `(3) For the purposes of this part-- 7 (a) a jurisdiction is taken to have applied the Australian 8 Consumer Law as a law of the jurisdiction if a law of the 9 jurisdiction substantially corresponds to the provisions 10 of the Australian Consumer Law text, as in force from 11 time to time; and 12 (b) that corresponding law is taken to be the Australian 13 Consumer Law, or the Australian Consumer Law text, 14 applying as a law of that jurisdiction. 15 `Division 2 Application of Australian Consumer 16 Law 17 `15 The Australian Consumer Law text 18 `The Australian Consumer Law text consists of-- 19 (a) schedule 2 to the Competition and Consumer Act 2010 20 of the Commonwealth; and 21 (b) the regulations under section 139G of that Act. 22 `16 Application of Australian Consumer Law 23 `(1) The Australian Consumer Law text, as in force from time to 24 time-- 25 (a) applies as a law of this jurisdiction; and 26 (b) as so applying may be referred to as the Australian 27 Consumer Law (Queensland); and 28 Page 21

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (c) as so applying is a part of this Act. 1 `(2) This section has effect subject to sections 17, 18 and 19. 2 `17 Future modifications of Australian Consumer Law text 3 `(1) A modification made by a Commonwealth law to the 4 Australian Consumer Law text after the commencement of 5 this section does not apply under section 16 if the 6 modification is declared by a regulation under this Act to be 7 excluded from the operation of that section. 8 `(2) A regulation under subsection (1) has effect only if its making 9 is notified no later than 2 months after the date of the 10 modification. 11 `(3) Subsection (1) ceases to apply to the modification if a further 12 regulation under this Act so provides. 13 `(4) For the purposes of this section, the date of the modification is 14 the date on which the Commonwealth Act effecting the 15 modification receives the Royal Assent or the regulation 16 effecting the modification is registered under the Legislative 17 Instruments Act 2003 of the Commonwealth. 18 `18 Meaning of generic terms in Australian Consumer 19 Law for purposes of this jurisdiction 20 `In the Australian Consumer Law (Queensland)-- 21 regulator means the commissioner for fair trading under this 22 Act. 23 `19 Interpretation of Australian Consumer Law 24 `(1) The Acts Interpretation Act 1901 (Cwlth) applies as a law of 25 this jurisdiction to the Australian Consumer Law 26 (Queensland). 27 `(2) For the purposes of subsection (1), the Commonwealth Act 28 mentioned in that subsection applies as if-- 29 Page 22

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (a) the statutory provisions in the Australian Consumer Law 1 (Queensland) were a Commonwealth Act; and 2 (b) the regulations in the Australian Consumer Law 3 (Queensland) or instruments under that law were 4 regulations or instruments under a Commonwealth Act. 5 `(3) The Acts Interpretation Act 1954 of Queensland does not 6 apply to-- 7 (a) the Australian Consumer Law (Queensland); or 8 (b) any instrument under that law. 9 `20 Application of Australian Consumer Law 10 `(1) The Australian Consumer Law (Queensland) applies to and in 11 relation to-- 12 (a) persons carrying on business within this jurisdiction; or 13 (b) bodies corporate incorporated or registered under the 14 law of this jurisdiction; or 15 (c) persons ordinarily resident in this jurisdiction; or 16 (d) persons otherwise connected with this jurisdiction. 17 `(2) Subject to subsection (1), the Australian Consumer Law 18 (Queensland) extends to conduct, and other acts, matters and 19 things, occurring or existing outside or partly outside this 20 jurisdiction (whether within or outside Australia). 21 `Division 3 References to Australian Consumer 22 Law 23 `21 References to Australian Consumer Law 24 `(1) A reference in any instrument to the Australian Consumer 25 Law is a reference to the Australian Consumer Law of any or 26 all of the participating jurisdictions. 27 Page 23

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(2) Subsection (1) has effect except so far as the contrary 1 intention appears in the instrument or the context of the 2 reference otherwise requires. 3 `22 References to Australian Consumer Law of other 4 jurisdictions 5 `(1) This section has effect for the purposes of an Act, a law of this 6 jurisdiction or an instrument under an Act or such a law. 7 `(2) If a law of a participating jurisdiction other than this 8 jurisdiction provides that the Australian Consumer Law text 9 as in force for the time being applies as a law of that 10 jurisdiction, the Australian Consumer Law of that jurisdiction 11 is the Australian Consumer Law text, applying as a law of that 12 jurisdiction. 13 `Division 4 Application of Australian Consumer 14 Law to jurisdictions 15 `23 Division does not apply to Commonwealth 16 `In this division, participating jurisdiction or other 17 jurisdiction does not include the Commonwealth. 18 `24 Application law of this jurisdiction 19 `The application law of this jurisdiction binds (so far as the 20 legislative power of Parliament permits) this jurisdiction and 21 each other jurisdiction, so far as the jurisdiction carries on a 22 business, either directly or by an authority of the jurisdiction 23 concerned. 24 `25 Application law of other jurisdictions 25 `(1) The application law of each participating jurisdiction other 26 than this jurisdiction binds this jurisdiction, so far as this 27 Page 24

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] jurisdiction carries on a business, either directly or by an 1 authority of this jurisdiction. 2 (2) If, because of this part, a provision of the law of another 3 participating jurisdiction binds this jurisdiction, this 4 jurisdiction is subject to that provision despite any prerogative 5 right or privilege. 6 `26 Activities that are not business 7 `(1) For the purposes of sections 24 and 25, the following do not 8 amount to carrying on a business-- 9 (a) imposing or collecting-- 10 (i) taxes; or 11 (ii) levies; or 12 (iii) fees for authorisations; 13 (b) granting, refusing to grant, revoking, suspending or 14 varying authorisations (whether or not they are subject 15 to conditions); 16 (c) a transaction involving-- 17 (i) only persons who are all acting for the same 18 jurisdiction (and none of whom is an authority of a 19 State); or 20 (ii) only persons who are all acting for the same 21 authority of a State; or 22 (iii) only a State and 1 or more non-commercial 23 authorities of that State; or 24 (iv) only non-commercial authorities of the same State; 25 (d) the acquisition of primary products by a government 26 body under legislation, unless the acquisition occurs 27 because-- 28 (i) the body chooses to acquire the products; or 29 Page 25

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (ii) the body has not exercised a discretion that it has 1 under the legislation that would allow it not to 2 acquire the products. 3 `(2) Subsection (1) does not limit the things that do not amount to 4 carrying on a business for the purposes of sections 24 and 25. 5 `(3) In this section-- 6 acquisition of primary products by a government body under 7 legislation includes vesting of ownership of primary products 8 in a government body by legislation. 9 authorisation means a licence, permit, certificate or other 10 authorisation that allows the holder of the authorisation to 11 supply goods or services. 12 government body means a State or an authority of a State. 13 primary products means-- 14 (a) agricultural or horticultural produce; or 15 (b) crops, whether on or attached to the land or not; or 16 (c) animals (whether dead or alive); or 17 (d) the bodily produce (including natural increase) of 18 animals. 19 `(4) For the purposes of this section, an authority of a State is 20 non-commercial if-- 21 (a) it is constituted by only one person; and 22 (b) it is neither a trading corporation nor a financial 23 corporation. 24 `27 Jurisdictions not liable to penalty or prosecution 25 `(1) Nothing in the application law of this jurisdiction makes any 26 jurisdiction liable to a pecuniary penalty or to be prosecuted 27 for an offence. 28 `(2) Without limiting subsection (1), nothing in the application law 29 of a participating jurisdiction makes this jurisdiction liable to 30 a pecuniary penalty or to be prosecuted for an offence. 31 Page 26

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(3) The protection in subsection (1) or (2) does not apply to an 1 authority of any jurisdiction. 2 `Division 5 Miscellaneous 3 `28 Conferral of functions and powers on certain bodies 4 `(1) The authorities and officers of the Commonwealth referred to 5 in the Australian Consumer Law (Queensland) have the 6 functions and powers conferred or expressed to be conferred 7 on them under the Australian Consumer Law (Queensland). 8 `(2) In addition to the powers mentioned in subsection (1), the 9 authorities and officers referred to in that subsection have 10 power to do all things necessary or convenient to be done in 11 connection with the performance of the functions and exercise 12 of the powers referred to in that subsection. 13 `29 No doubling-up of liabilities 14 `(1) If-- 15 (a) an act or omission is an offence against the Australian 16 Consumer Law (Queensland) and is also an offence 17 against an application law of another participating 18 jurisdiction; and 19 (b) the offender has been punished for the offence under the 20 application law of the other jurisdiction; 21 the offender is not liable to be punished for the offence against 22 the Australian Consumer Law (Queensland). 23 `(2) If a person has been ordered to pay a pecuniary penalty under 24 the application law of another participating jurisdiction, the 25 person is not liable to a pecuniary penalty under the 26 Australian Consumer Law (Queensland) in respect of the 27 same conduct. 28 Page 27

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `Part 3A Provisions supporting 1 application of Australian 2 Consumer Law as a law of 3 Queensland 4 `Division 1 Infringement notices 5 `30 Purpose and effect of this division 6 `(1) The purpose of this division is to provide for the issue of an 7 infringement notice to a person for an alleged contravention of 8 an infringement notice provision as an alternative to 9 proceedings for an order under the Australian Consumer Law 10 (Queensland), section 224. 11 `(2) This division does not-- 12 (a) require an infringement notice to be issued to a person 13 for an alleged contravention of an infringement notice 14 provision; or 15 (b) affect the liability of a person to proceedings under the 16 Australian Consumer Law (Queensland), chapter 4 or 17 chapter 5, part 5-2 in relation to an alleged contravention 18 of an infringement notice provision if-- 19 (i) an infringement notice is not issued to the person 20 for the alleged contravention; or 21 (ii) an infringement notice issued to a person for the 22 alleged contravention is withdrawn under section 23 37; or 24 (c) prevent a court from imposing a higher penalty than the 25 penalty stated in the infringement notice if the person 26 does not comply with the notice. 27 Page 28

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `31 Issuing infringement notice 1 `(1) If the commissioner has reasonable grounds to believe that a 2 person has contravened an infringement notice provision, the 3 commissioner may issue an infringement notice to the person. 4 `(2) Each of the following is an infringement notice provision-- 5 (a) any of the following provisions of the Australian 6 Consumer Law (Queensland)-- 7 (i) a provision of chapter 2, part 2-2; 8 (ii) a provision of chapter 3, part 3-1 (other than 9 section 32(1), 35(1), 36(1), (2) or (3), 40 or 43); 10 (iii) section 66(2); 11 (iv) a provision of chapter 3, part 3-2, division 2 (other 12 than section 85); 13 (v) a provision of chapter 3, part 3-2, division 3 (other 14 than section 96(2)); 15 (vi) section 100(1) or (3), 101(3) or (4), 102(2) or 16 103(2); 17 (vii) section 106(1), (2), (3) or (5), 107(1) or (2), 18 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or 19 (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 20 137(1) or (2); 21 (viii) section 221(1) or 222(1); 22 (b) an FTA consumer offence provision. 23 `(3) The commissioner must not issue more than 1 infringement 24 notice to the person for the same alleged contravention of the 25 infringement notice provision. 26 `(4) The infringement notice does not have any effect if the 27 notice-- 28 (a) is issued more than 1 year after the day on which the 29 contravention of the infringement notice provision is 30 alleged to have occurred; or 31 (b) relates to more than 1 alleged contravention of an 32 infringement notice provision by the person. 33 Page 29

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `32 Matters to be included in infringement notice 1 `An infringement notice must-- 2 (a) be identified by a unique number; and 3 (b) state the day on which it is issued; and 4 (c) state the name and address of the person to whom it is 5 issued; and 6 (d) identify the commissioner; and 7 (e) state how the commissioner may be contacted; and 8 (f) give details of the alleged contravention by the person, 9 including-- 10 (i) the date of the alleged contravention; and 11 (ii) the particular infringement notice provision that 12 was allegedly contravened; and 13 (g) state the maximum pecuniary penalty that the court 14 could order the person to pay under the Australian 15 Consumer Law (Queensland), section 224 for the 16 alleged contravention; and 17 (h) state the penalty that is payable in relation to the alleged 18 contravention; and 19 (i) state that the penalty is payable within the infringement 20 notice compliance period for the notice; and 21 (j) state that the penalty is payable to the commissioner on 22 behalf of the State; and 23 (k) explain how payment of the penalty is to be made; and 24 (l) explain the effect of sections 34, 35, 36 and 37. 25 `33 Amount of penalty 26 `(1) The penalty to be stated in an infringement notice that is to be 27 issued to a person, in relation to an alleged contravention of a 28 provision of the Australian Consumer Law (Queensland), 29 Page 30

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] must be a penalty equal to the amount worked out using the 1 following table-- 2 Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law (Queensland) ... 1 a provision of chapter 2, part (a) if the person is a listed 2-2 corporation--600 penalty units; or (b) if the person is a body corporate other than a listed corporation--60 penalty units; or (c) if the person is not a body corporate--12 penalty units. 2 a provision of chapter 3, part (a) if the person is a listed 3-1 (other than section 32(1), corporation--600 penalty units; 35(1), 36(1), (2) or (3), 40, 43 or or 47(1)) (b) if the person is a body corporate other than a listed corporation--60 penalty units; or (c) if the person is not a body corporate--12 penalty units. 3 section 47(1) (a) if the person is a body corporate--10 penalty units; or (b) if the person is not a body corporate--2 penalty units. 4 section 66(2) (a) if the person is a body corporate--55 penalty units; or (b) if the person is not a body corporate--11 penalty units. 5 a provision of chapter 3, part (a) if the person is a body 3-2, division 2 (other than corporate--60 penalty units; or section 85) (b) if the person is not a body corporate--12 penalty units. Page 31

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law (Queensland) ... 6 a provision of chapter 3, part (a) if the person is a body 3-2, division 3 (other than corporate--55 penalty units; or section 96(2)) (b) if the person is not a body corporate--11 penalty units. 7 section 100(1) or (3) (a) if the person is a body or 101(3) or (4) corporate--20 penalty units; or (b) if the person is not a body corporate--4 penalty units. 8 section 102(2) or 103(2) (a) if the person is a body corporate--60 penalty units; or (b) if the person is not a body corporate--12 penalty units. 9 section 106(1), (2), (3) or (5), (a) if the person is a listed 107(1) or (2), 118(1), (2), (3) corporation--600 penalty units; or (5) or 119(1) or (2) or (b) if the person is a body corporate other than a listed corporation--60 penalty units; or (c) if the person is not a body corporate--12 penalty units. 10 section 125(4) (a) if the person is a body corporate--30 penalty units; or (b) if the person is not a body corporate--6 penalty units. 11 section 127(1) or (2) (a) if the person is a listed corporation--600 penalty units; or (b) if the person is a body corporate other than a listed corporation--60 penalty units; or (c) if the person is not a body corporate--12 penalty units. Page 32

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law (Queensland) ... 12 section 128(2) or (6), 131(1) (a) if the person is a body or 132(1) corporate--30 penalty units; or (b) if the person is not a body corporate--6 penalty units. 13 section 136(1), (2) or (3) or (a) if the person is a listed 137(1) or (2) corporation--600 penalty units; or (b) if the person is a body corporate other than a listed corporation--60 penalty units; or (c) if the person is not a body corporate--12 penalty units. 14 section 221(1) (a) if the person is a body corporate--30 penalty units; or (b) if the person is not a body corporate--6 penalty units. 15 section 222(1) (a) if the person is a body corporate--50 penalty units; or (b) if the person is not a body corporate--10 penalty units. `(2) The penalty to be stated in an infringement notice that is to be 1 issued to a person, in relation to an alleged contravention of an 2 FTA consumer offence provision, must be-- 3 (a) if the person is a listed corporation--600 penalty units; 4 or 5 (b) if the person is a body corporate other than a listed 6 corporation--60 penalty units; or 7 (c) if the person is not a body corporate--12 penalty units. 8 Page 33

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(3) For this section, the value of a penalty unit is the same value it 1 has for the time being under the Crimes Act 1914 (Cwlth) for 2 a law of the Commonwealth. 3 `34 Effect of compliance with infringement notice 4 `(1) This section applies if-- 5 (a) an infringement notice for an alleged contravention of 6 an infringement notice provision is issued to a person; 7 and 8 (b) the person pays the penalty stated in the infringement 9 notice within the infringement notice compliance period 10 and as required by the notice; and 11 (c) the infringement notice is not withdrawn under section 12 37. 13 `(2) The person is not, merely because of the payment, regarded 14 as-- 15 (a) having contravened the infringement notice provision; 16 or 17 (b) having been convicted of an offence constituted by the 18 same conduct that constituted the alleged contravention 19 of the infringement notice provision. 20 `(3) No proceedings (whether criminal or civil) may be started or 21 continued against the person, by or for the State, in relation 22 to-- 23 (a) the alleged contravention of the infringement notice 24 provision; or 25 (b) an offence constituted by the same conduct that 26 constituted the alleged contravention. 27 `35 Effect of failure to comply with infringement notice 28 `(1) This section applies if-- 29 Page 34

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (a) an infringement notice for an alleged contravention of 1 an infringement notice provision is issued to a person; 2 and 3 (b) the person fails to pay the penalty stated in the 4 infringement notice within the infringement notice 5 compliance period and as required by the notice; and 6 (c) the infringement notice is not withdrawn under section 7 37. 8 `(2) The person is liable-- 9 (a) to be proceeded against under the Australian Consumer 10 Law (Queensland), chapter 5, part 5-2 in relation to the 11 alleged contravention of the infringement notice 12 provision; or 13 (b) if the contravention also constitutes the commission of 14 an offence provided for in the Australian Consumer Law 15 (Queensland), chapter 4--to be proceeded against for 16 the commission of the offence; or 17 (c) if the contravention also constitutes the commission of 18 an offence against an FTA consumer offence 19 provision--to be proceeded against for the commission 20 of the offence. 21 `36 Infringement notice compliance period for 22 infringement notice 23 `(1) Subject to this section, the infringement notice compliance 24 period for an infringement notice is the period of 28 days 25 beginning on the day after the day on which the infringement 26 notice is issued by the commissioner. 27 `(2) The commissioner may extend, by notice in writing, the 28 infringement notice compliance period for the notice if the 29 commissioner is satisfied that it is appropriate to do so. 30 `(3) Only 1 extension may be given and the extension must not be 31 for more than 28 days. 32 Page 35

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(4) Notice of the extension must be given to the person who was 1 issued the infringement notice. 2 `(5) A failure to comply with subsection (4) does not affect the 3 validity of the extension. 4 `(6) If the commissioner extends the infringement notice 5 compliance period for an infringement notice, a reference in 6 this division to the infringement notice compliance period for 7 an infringement notice is taken to be a reference to the 8 infringement notice compliance period as so extended. 9 `37 Withdrawal of infringement notice 10 `(1) The person to whom an infringement notice has been issued 11 for an alleged contravention of an infringement notice 12 provision may make written representations to the 13 commissioner seeking the withdrawal of the infringement 14 notice. 15 `(2) Evidence or information that the person, or a representative of 16 the person, gives to the commissioner in the course of making 17 representations under subsection (1) is not admissible in 18 evidence against the person or representative in any 19 proceedings (other than proceedings for an offence based on 20 the evidence or information given being false or misleading). 21 `(3) The commissioner may, by written notice (the withdrawal 22 notice) given to the person to whom an infringement notice 23 was issued, withdraw the infringement notice if the 24 commissioner is satisfied that it is appropriate to do so. 25 `(4) Subsection (3) applies whether or not the person has made 26 representations seeking the withdrawal. 27 `(5) The withdrawal notice must state-- 28 (a) the name and address of the person; and 29 (b) the day on which the infringement notice was issued to 30 the person; and 31 (c) that the infringement notice is withdrawn; and 32 Page 36

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (d) that proceedings under the Australian Consumer Law 1 (Queensland), chapter 4 or chapter 5, part 5-2 may be 2 started or continued against the person in relation to-- 3 (i) the alleged contravention of the infringement 4 notice provision; or 5 (ii) an offence constituted by the same conduct that 6 constituted the alleged contravention. 7 `(6) To be effective, the withdrawal notice must be given to the 8 person within the infringement notice compliance period for 9 the infringement notice. 10 `(7) If the infringement notice is withdrawn after the person has 11 paid the penalty stated in the infringement notice, the 12 commissioner must refund to the person an amount equal to 13 the amount paid. 14 `Division 2 Embargo notices 15 `38 Definition for div 2 16 `In this division-- 17 services includes product related services. 18 `39 Embargo notices 19 `(1) An inspector who enters premises under section 89 may give 20 an embargo notice to the occupier of the premises in relation 21 to the supply of goods or services from the premises. 22 `(2) The inspector may give the embargo notice to the occupier 23 only if the inspector is satisfied on reasonable grounds-- 24 (a) to the extent the embargo notice relates to goods--that 25 the goods have been supplied, or offered to be supplied, 26 from the premises in contravention of this Act; and 27 (b) to the extent the embargo notice relates to services--that 28 the services have been supplied, or offered to be 29 supplied, from the premises in contravention of this Act. 30 Page 37

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(3) The inspector may give the notice to the occupier of the 1 premises-- 2 (a) by causing a copy of the notice to be served on the 3 occupier; or 4 (b) if the occupier cannot be located after all reasonable 5 steps have been taken to do so--by causing a copy of the 6 notice to be-- 7 (i) served on a person on the premises who is 8 reasonably believed to be in regular contact with 9 the occupier; or 10 (ii) affixed to the premises, or to a thing on the 11 premises, in a prominent position. 12 `(4) The embargo notice must-- 13 (a) be in writing; and 14 (b) state the goods and services to which the notice relates; 15 and 16 (c) if the notice relates to goods--state that the stated goods 17 must not be-- 18 (i) supplied in or from the premises; or 19 (ii) transferred, moved, altered, destroyed or otherwise 20 interfered with; 21 during the period stated in the notice; and 22 (d) if the notice relates to services--state that the stated 23 services must not be supplied in or from the premises 24 during the period stated in the notice; and 25 (e) explain the effect of-- 26 (i) for goods--section 42; or 27 (ii) for services--section 43. 28 `(5) Despite anything in any other law, a contract for the supply of 29 goods or services that is prohibited by an embargo notice is 30 void. 31 `(6) If goods are supplied in contravention of an embargo notice-- 32 Page 38

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (a) the supplier must immediately return or refund to the 1 person who acquired the goods any consideration (or the 2 value of any consideration) that the person gave-- 3 (i) under an agreement for the supply; or 4 (ii) under a related contract or instrument; and 5 (b) if the goods have been removed from the premises in 6 which they were subject to the embargo notice--the 7 person who acquired the goods must-- 8 (i) return the goods to the premises; or 9 (ii) notify the supplier of the place where the supplier 10 may collect the goods; and 11 (c) if paragraph (b)(ii) applies--the supplier must collect 12 the goods from the place notified to the supplier, and 13 return them to the premises. 14 `40 Embargo period for embargo notice 15 `(1) Subject to this section, the embargo period for an embargo 16 notice must not be longer than-- 17 (a) if the inspector giving the notice secures goods under 18 section 42 or secures equipment under section 43--24 19 hours; or 20 (b) otherwise--28 days. 21 `(2) An inspector may, before the embargo period ends, apply to a 22 Magistrates Court for an extension of the period. 23 `(3) If an inspector intends to make an application under 24 subsection (2), the inspector must, before making the 25 application, notify the occupier of the premises to which the 26 embargo notice relates of that intention. 27 `(4) The occupier of the premises is entitled to be heard in relation 28 to the application. 29 `(5) The court may extend the embargo period for a stated period 30 if the judge is satisfied that the extension is necessary in all 31 the circumstances. 32 Page 39

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `41 Multiple embargo notice for supply of the same kind 1 of goods or services from the same premises 2 `If an inspector has given an embargo notice (the earlier 3 embargo notice), an inspector must not give another embargo 4 notice (the later embargo notice) if-- 5 (a) the later embargo notice would relate to goods or 6 services of the same kind, and to the same premises, as 7 the earlier embargo notice related to; and 8 (b) the embargo period for the earlier embargo notice did 9 not end at least 5 days ago. 10 `42 Power of inspector to secure goods 11 `If-- 12 (a) an embargo notice relates to goods; and 13 (b) the inspector who gives the notice believes on 14 reasonable grounds that it is necessary to secure the 15 goods in order to ensure that the notice is complied 16 with; 17 the inspector may, during the embargo period for the embargo 18 notice, do anything that the inspector thinks is necessary to 19 secure the goods (whether by locking them up, placing a 20 guard or otherwise). 21 `43 Power of inspector to secure equipment used to 22 supply services 23 `If-- 24 (a) an embargo notice relates to services; and 25 (b) the inspector who gives the notice believes on 26 reasonable grounds that it is necessary to secure 27 equipment used to supply the services in order to ensure 28 that the notice is complied with; 29 the inspector may, during the embargo period for the embargo 30 notice, do anything that the inspector thinks is necessary to 31 Page 40

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] secure the equipment (whether by locking it up, placing a 1 guard or otherwise). 2 `44 Approval relating to embargoed goods or services 3 `(1) If an embargo notice relating to goods has been given, the 4 owner of the goods or another person who has an interest in 5 the goods may, in writing, ask the commissioner for approval 6 to do any of the following-- 7 (a) supply the goods; 8 (b) transfer, move, alter, destroy or otherwise interfere with 9 the goods. 10 `(2) If an embargo notice relating to services has been given, the 11 following persons may, in writing, ask the commissioner for 12 approval to supply the services-- 13 (a) the person who would, but for the embargo notice, 14 supply the services; 15 (b) another person whose interests would be affected if the 16 services were not supplied. 17 `(3) If a request for an approval is made under subsection (1) or 18 (2), the requested approval may be given, in writing, by the 19 commissioner. 20 `45 Compliance with embargo notice 21 `(1) A person commits an offence if-- 22 (a) the person knows that an embargo notice has been 23 given; and 24 (b) the person, contrary to the embargo notice, does an act 25 or omits to do an act. 26 Maximum penalty-- 27 (a) if the person is a body corporate--200 penalty units; or 28 (b) if the person is not a body corporate--40 penalty units. 29 `(2) A person commits an offence if-- 30 Page 41

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (a) the person knows that an embargo notice has been 1 given; and 2 (b) the person causes another person to do an act or to omit 3 to do an act; and 4 (c) doing the act, or omitting to do the act, is contrary to the 5 embargo notice. 6 Maximum penalty-- 7 (a) if the person is a body corporate--200 penalty units; or 8 (b) if the person is not a body corporate--40 penalty units. 9 `(3) Subsections (1) and (2) do not apply in relation to-- 10 (a) an act done under an approval given under section 44; or 11 (b) if the embargo notice relates to goods--an act done to 12 protect or preserve the goods; or 13 (c) if the embargo notice relates to services--an act done to 14 protect or preserve equipment used to supply the 15 services. 16 `(4) Subsection (5) applies if-- 17 (a) a proceeding is brought against a person for a 18 contravention of subsection (1) or (2); and 19 (b) the person seeks to rely on a matter (the relevant 20 matter) stated in subsection (3)(a), (b) or (c). 21 `(5) The person has an evidential burden in relation to the matter. 22 `(6) For this section, the value of a penalty unit is the same value it 23 has for the time being under the Crimes Act 1914 (Cwlth) for 24 a law of the Commonwealth. 25 Page 42

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `Division 3 Orders for the preservation of 1 property 2 `46 Court may make order for preserving money or other 3 property held by a person 4 `(1) The District Court may, on the application of the Minister or 5 the commissioner, make an order or orders mentioned in 6 subsection (3) if-- 7 (a) proceedings of a kind mentioned in subsection (2) have 8 been taken against a person, or proceedings of a kind 9 mentioned in subsection (2)(d) may be taken against a 10 person; and 11 (b) the court is satisfied that it is necessary or desirable to 12 make the order or orders to preserve money or other 13 property held by or for the person if the person is liable, 14 or may become liable, under the Australian Consumer 15 Law (Queensland)-- 16 (i) to pay money by way of a fine, damages, 17 compensation, refund or otherwise; or 18 (ii) to transfer, sell or refund other property; and 19 (c) the court is satisfied that the making of such an order or 20 orders will not unduly prejudice the rights and interests 21 of any other person. 22 `(2) For subsection (1)(a), the kinds of proceedings are-- 23 (a) proceedings against the person for an offence against a 24 provision of the Australian Consumer Law 25 (Queensland), chapter 4 or against an FTA offence 26 provision; or 27 (b) an application under the Australian Consumer Law 28 (Queensland), section 232 for an injunction against the 29 person in relation to-- 30 (i) a contravention of a provision of the Australian 31 Consumer Law (Queensland), chapter 2, 3 or 4, or 32 of a relevant provision under section 65; or 33 Page 43

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (ii) a term of a consumer contract in relation to which 1 a declaration under the Australian Consumer Law 2 (Queensland), section 250 has been made; or 3 (c) an action under the Australian Consumer Law 4 (Queensland), section 236(1) against the person in 5 relation to a contravention of a provision of the 6 Australian Consumer Law (Queensland), chapter 2, part 7 2-1 or chapter 3, or of a relevant provision under section 8 66; or 9 (d) an application for an order under the Australian 10 Consumer Law (Queensland), section 237(1) or 239(1) 11 against a person in relation to-- 12 (i) a contravention of a provision of the Australian 13 Consumer Law (Queensland), chapter 2, 3 or 4, or 14 of a relevant provision under section 67; or 15 (ii) a term of a consumer contract in relation to which 16 a declaration under the Australian Consumer Law 17 (Queensland), section 250 has been made. 18 `(3) The court may make the following orders under subsection (1) 19 in relation to money or other property held by or for a person 20 (the respondent)-- 21 (a) an order prohibiting, either absolutely or subject to 22 conditions, a person who is indebted to the respondent, 23 or to an associate of the respondent, from making a 24 payment, in total or partial discharge of the debt-- 25 (i) to the respondent; or 26 (ii) to another person at the direction or request of the 27 respondent; 28 (b) an order prohibiting, either absolutely or subject to 29 conditions, a person who is holding money or other 30 property for the respondent, or for an associate of the 31 respondent-- 32 (i) from paying all or any of the money to the 33 respondent, or to another person at the direction or 34 request of the respondent; or 35 Page 44

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (ii) from transferring the other property to the 1 respondent, or to another person at the direction or 2 request of the respondent, or otherwise parting 3 with possession of that property; 4 (c) an order prohibiting, either absolutely or subject to 5 conditions, the taking or sending by any person of 6 money of the respondent, or of an associate of the 7 respondent, to a place outside the State in which the 8 money is held; 9 (d) an order prohibiting, either absolutely or subject to 10 conditions, the taking, sending or transfer by any person 11 of other property of the respondent, or of an associate of 12 the respondent, to a place outside the State in which that 13 property is located; 14 (e) if the respondent is an individual--an order appointing a 15 receiver or trustee of the property, or of part of the 16 property, of the respondent with such powers as are 17 stated in the order. 18 `(4) If the court makes such an order, the order operates-- 19 (a) for the period stated in the order (of not more than 30 20 days if the application for the order was an ex parte 21 application); or 22 (b) if proceedings in relation to which the order is made are 23 concluded before the stated period ends--until the 24 conclusion of the proceedings. 25 `(5) This section-- 26 (a) has effect subject to the Bankruptcy Act 1966 (Cwlth); 27 and 28 (b) does not affect any other powers of the court. 29 `(6) In this section-- 30 associate, of the respondent, means a person who-- 31 (a) holds money or other property for the respondent; or 32 Page 45

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (b) if the respondent is a body corporate--is a 1 wholly-owned subsidiary (within the meaning of the 2 Corporations Act) of the respondent. 3 `47 Compliance with orders made under this division 4 `(1) A person commits an offence if-- 5 (a) an order made under section 46 applies to the person; 6 and 7 (b) the person contravenes, or refuses or fails to comply 8 with, the order. 9 Maximum penalty-- 10 (a) if the person is a body corporate--900 penalty units; or 11 (b) if the person is not a body corporate--180 penalty units. 12 `(2) For this section, the value of a penalty unit is the same value it 13 has for the time being under the Crimes Act 1914 (Cwlth) for 14 a law of the Commonwealth. 15 `Division 4 Court jurisdiction 16 `48 Purpose and scope of division 17 `(1) The purpose of this division is to confer jurisdiction to deal 18 with particular matters arising under the Australian Consumer 19 Law (Queensland). 20 `(2) This division does not apply in relation to-- 21 (a) provisions of the Australian Consumer Law 22 (Queensland) that provide for offences; or 23 (b) any FTA consumer offence provision to the extent a 24 contravention or alleged contravention of the provision 25 is being dealt with as for a criminal offence. 26 Page 46

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `49 Jurisdiction extends to provisions having wider 1 application 2 `(1) This section applies if-- 3 (a) this division confers jurisdiction on an entity to deal 4 with matters arising under a particular provision of the 5 Australian Consumer Law (Queensland); and 6 (b) under part 3B, the particular provision has an extended 7 application. 8 `(2) The conferral of jurisdiction also applies in relation to the 9 provision's extended application. 10 Example for subsection (2)-- 11 Under part 3B of this Act, the application of the Australian Consumer 12 Law (Queensland), chapter 5, part 5-2, division 2 (Injunctions) is 13 extended to particular provisions of this Act, including, for example, the 14 FTA consumer offence provisions. Under this division, depending on 15 circumstances, either the District Court or the Supreme Court has 16 jurisdiction for injunctions under the Australian Consumer Law 17 (Queensland). That jurisdiction arrangement will therefore also apply 18 for injunctions relating to contraventions of the FTA consumer offence 19 provisions even though those provisions do not form part of the 20 Australian Consumer Law (Queensland). 21 `50 Proceedings referred to court of competent 22 jurisdiction 23 `(1) A proceeding for the purposes of a provision of the Australian 24 Consumer Law (Queensland) listed in the table to this section 25 must be heard in the tribunal or in a court having jurisdiction 26 for the proceeding, having regard to-- 27 (a) for the tribunal--whether the subject of the proceeding 28 would be a minor civil dispute within the meaning of the 29 QCAT Act; or 30 (b) for a court--any civil jurisdictional limit, including any 31 monetary limit, applying to the court. 32 `(2) Subsection (1) applies whether or not the listed provision 33 already includes reference to a court of competent 34 jurisdiction. 35 Page 47

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Table 1 Provision of Australian Name of provision Nature of proceeding Consumer Law (Queensland) section 43(4) Assertion of right to Action to recover payment payment for unauthorised made by a person to another entries or advertisements person section 85(4) Obligations and rights of Recovery of compensation consumers on termination section 99(2) Effect of termination Recovery of unpaid termination charge section 138(2) Liability for loss or damage Action to recover amount of suffered by an injured loss or damage individual section 139(2) Liability for loss or damage Action to recover amount of suffered by a person other loss or damage than an injured individual section 140(2) Liability for loss or damage Action to recover amount of suffered by a person if other loss or damage goods are destroyed or damaged section 141(2) Liability for loss or damage Action to recover amount of suffered by a person if land, loss or damage buildings or fixtures are destroyed or damaged section 236(1) Actions for damages Action to recover amount of loss or damage section 259(2), (3) and (4) Action against suppliers of s 259(2) - Action to recover goods reasonable costs incurred by consumer s 259(3) - Action to recover compensation for reduction in value of goods s 259(4) - Action to recover damages because of failure to comply with guarantee Page 48

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Provision of Australian Name of provision Nature of proceeding Consumer Law (Queensland) section 265(3) Termination of contracts for Action to recover refund the supply of services that are connected with rejected goods section 267(2), (3) and (4) Action against suppliers of s 267(2) - Action to recover services reasonable costs incurred by consumer s 267(3) - Action to recover compensation for reduction in value of services s 267(4) - Action to recover damages because of failure to comply with guarantee section 269(3) Termination of contracts for Action to recover refund the supply of services section 271(1), (3) and (5) Action for damages against Action to recover damages manufacturers of goods from manufacturer section 274(3) Indemnification of suppliers Action against manufacturer by manufacturers for legal or equitable relief section 279(1) Action by consumer to Action to recover amount of recover amount of loss or loss or damage damage `51 Proceedings referred to particular court 1 `A proceeding for the purposes of a provision of the 2 Australian Consumer Law (Queensland) listed in the table to 3 this section must be heard in the court as provided for in the 4 table to this section. 5 Page 49

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Table 1 Provision of Name of Nature of Court having Australian provision proceeding jurisdiction Consumer Law (Queensland) section 218(3) Regulator may Application for order District Court accept undertakings under section 218(4) of ACL(Q) for breach of undertaking chapter 5, part 5-2, Pecuniary penalties Proceeding for the If the maximum division 1 recovery of a amount of the pecuniary penalty pecuniary penalty payable under section 224 of ACL(Q) in relation to the contravention is equal to or less than the civil jurisdictional monetary limit applying under the Magistrates Courts Act 1921, a Magistrates Court has jurisdiction. Otherwise, the District Court has jurisdiction, regardless of the maximum amount of the pecuniary penalty payable. Page 50

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Provision of Name of Nature of Court having Australian provision proceeding jurisdiction Consumer Law (Queensland) section 232(2) Injunctions Application by If the injunction is regulator or other sought in person for grant of conjunction with, injunction and in the course of, another proceeding under this Act, whether for an offence or otherwise, before the District Court, the District Court has jurisdiction. Otherwise, the Supreme Court has jurisdiction. section 237(1) Compensation orders Application by If the order is sought etc. on application by injured person, or by in conjunction with, an injured person or regulator for injured and in the course of, the regulator person, for order for another proceeding compensation or for under this Act, prevention or whether for an reduction of loss or offence or otherwise, damage the court hearing the other proceeding has jurisdiction for the proceeding for the order. Otherwise, the District Court has jurisdiction, regardless of any civil jurisdictional limit, including any monetary limit, applying to the District Court. Page 51

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Provision of Name of Nature of Court having Australian provision proceeding jurisdiction Consumer Law (Queensland) section 239(1) Orders to redress etc. Application by If the order is sought loss or damage regulator for order in conjunction with, suffered by non-party redressing loss or and in the course of, consumers damage or for another proceeding preventing or under this Act, reducing loss or whether for an damage offence or otherwise, the court hearing the other proceeding has jurisdiction for the proceeding for the order. Otherwise, the District Court has jurisdiction, regardless of any civil jurisdictional limit, including any monetary limit, applying to the District Court. section 246(1) Non-punitive orders Application by If the order is sought regulator for order in conjunction with, under section 246(2) and in the course of, of ACL(Q) another proceeding under this Act, whether for an offence or otherwise, the court hearing the other proceeding has jurisdiction for the proceeding for the order. Otherwise, a Magistrates Court has jurisdiction, regardless of any civil jurisdictional limit, including any monetary limit, applying to a Magistrates Court. Page 52

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] Provision of Name of Nature of Court having Australian provision proceeding jurisdiction Consumer Law (Queensland) section 247(1) Adverse publicity Application by If the order is sought orders regulator for adverse in conjunction with, publicity order and in the course of, another proceeding under this Act, whether for an offence or otherwise, the court hearing the other proceeding has jurisdiction for the proceeding for the order. Otherwise, a Magistrates Court has jurisdiction, regardless of any civil jurisdictional limit, including any monetary limit, applying to a Magistrates Court. section 248(1) Order disqualifying a Application by If the order is sought person from regulator for order in conjunction with, managing disqualifying a and in the course of, corporations person from another proceeding managing under this Act, corporations for a whether for an period offence or otherwise, before the District Court, the District Court has jurisdiction. Otherwise, the Supreme Court has jurisdiction. section 250(1) Declarations relating Application by party District Court to consumer to consumer contract contracts or by regulator for declaration that a term of a contract is an unfair term Page 53

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `Division 5 Miscellaneous 1 `52 Miscellaneous supporting provision for proceedings 2 for recovery of pecuniary penalties 3 `(1) For a relevant proceeding, if a court is to be satisfied of a 4 matter, the court need only be satisfied of the matter on the 5 balance of probabilities. 6 `(2) If, for a relevant proceeding-- 7 (a) a court orders a corporation to pay a pecuniary penalty; 8 and 9 (b) the corporation does not have the resources to pay the 10 pecuniary penalty; 11 the executive officers of the corporation are jointly and 12 severally liable to pay any amount not paid by the corporation. 13 `(3) It is a defence to a liability under subsection (2) for an 14 executive officer to prove that-- 15 (a) if the officer was in a position to influence the conduct 16 of the corporation in relation to the act or omission the 17 subject of the relevant proceeding--the officer exercised 18 reasonable diligence to ensure the corporation did not 19 do the act or make the omission; or 20 (b) the officer was not in a position to influence the conduct 21 of the corporation in relation to the act or omission the 22 subject of the relevant proceeding. 23 `(4) If 2 or more relevant proceedings are to be dealt with 24 concurrently and, under division 4, the District Court would 25 have jurisdiction for at least 1 but not all of the relevant 26 proceedings, the District Court may exercise jurisdiction for 27 all the proceedings. 28 `(5) In this section-- 29 relevant proceeding means a proceeding under the Australian 30 Consumer Law (Queensland), chapter 5, part 5-2, division 1, 31 including under that division's extended application. 32 Page 54

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `53 Interpretation of offence provisions 1 `(1) To remove any doubt, it is declared that-- 2 (a) chapter 2 of the Criminal Code (Cwlth) does not apply 3 to offences against the Australian Consumer Law 4 (Queensland), chapter 4; and 5 (b) accordingly, any statement included in the Australian 6 Consumer Law (Queensland), chapter 4 to the effect that 7 a provision of that law is an offence of strict liability is 8 not relevant for the purposes of that law. 9 Note-- 10 The Criminal Code (of Queensland) applies for the purposes of offences 11 included in the Australian Consumer Law (Queensland), chapter 4. For 12 example, the Criminal Code, section 23(2) applies to make immaterial 13 the result intended to be caused by an act or omission constituting an 14 offence unless intention to cause the result is expressly declared to be an 15 element of the offence. The application of the Criminal Code is subject 16 to provisions of this Act (including the Australian Consumer Law 17 (Queensland)). For example, the Australian Consumer Law 18 (Queensland), chapter 4, part 4-6 includes defences that are available for 19 prosecutions for contraventions of provisions of chapter 4. 20 `(2) Despite section 19, the Acts Interpretation Act 1954 sections 21 41, 41A, 43, 44(4), 45 and 46 apply in relation to offences 22 under the Australian Consumer Law (Queensland) as if that 23 law were an Act to which the Acts Interpretation Act 1954 24 applied. 25 `54 Gazettal of notice under Australian Consumer Law 26 (Queensland) about interim ban, recall notice or 27 safety warning 28 `(1) This section applies if the Minister, as a responsible Minister 29 under the Australian Consumer Law (Queensland), publishes 30 a written notice on the internet under any of the following 31 provisions of the Australian Consumer Law (Queensland)-- 32 (a) section 109, 111 or 113; 33 (b) section 122; 34 (c) section 129 or 130. 35 Page 55

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(2) The Minister must, as soon as practicable after the publication 1 of the written notice, publish a gazette notice containing a 2 copy of the written notice. 3 `(3) A failure to comply with subsection (2) does not affect the 4 validity of the written notice. 5 `55 Limitation on right to itemised bill 6 `(1) This section applies if-- 7 (a) apart from this section, under the Australian Consumer 8 Law (Queensland), section 101, a person is entitled, as a 9 consumer, to request the supplier of legal services to 10 give the consumer an itemised bill, complying with that 11 section, relating to the legal services; and 12 (b) under the Legal Profession Act 2007, section 332, the 13 person is entitled to request a law practice to give the 14 person an itemised bill relating to the legal services. 15 `(2) The Australian Consumer Law (Queensland), section 101 16 ceases to have application to the legal services. 17 `Part 3B Provisions utilising Australian 18 Consumer Law (Queensland) 19 provisions 20 `56 Australian Consumer Law (Queensland) not limited 21 `(1) This section applies if a provision of this part (the application 22 provision) applies a provision of the Australian Consumer 23 Law (Queensland) (the applied provision), whether for the 24 purposes of an FTA offence provision or for some other 25 purpose (the extended application). 26 Page 56

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `(2) The application provision does not limit or otherwise affect 1 the operation of the applied provision as a provision of the 2 Australian Consumer Law (Queensland). 3 `57 Defences 4 `(1) The defences provided for in the Australian Consumer Law 5 (Queensland), chapter 4, part 4-6 also apply for the purposes 6 of each FTA offence provision as if the FTA offence provision 7 were a provision of the Australian Consumer Law 8 (Queensland), chapter 4. 9 `(2) For subsection (1), the Australian Consumer Law 10 (Queensland), section 211 may also be read as if the reference 11 to section 195 of that law were a reference to section 84(1). 12 `(3) Subsection (1) applies in relation to an FTA consumer offence 13 provision only to the extent a contravention or alleged 14 contravention of the provision is being dealt with as for a 15 criminal offence. 16 `58 Prosecutions to be commenced within 3 years 17 `The Australian Consumer Law (Queensland), section 212 18 applies to an offence against an FTA offence provision as if 19 the offence were an offence against a provision of the 20 Australian Consumer Law (Queensland), chapter 4. 21 `59 Preference must be given to compensation for victims 22 `(1) The Australian Consumer Law (Queensland), section 213 23 applies in relation to a relevant provision as if the reference in 24 section 213(a)(i) of that law to a provision of that law 25 included a reference to the relevant provision. 26 `(2) In this section-- 27 relevant provision means an FTA offence provision other than 28 section 92(1)(b), (c), (d) or (e) or 92B. 29 Page 57

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `60 Penalties for contraventions of the same nature for 1 FTA offence provisions 2 `(1) The Australian Consumer Law (Queensland), section 214 3 applies to 2 or more offences constituted by, or relating to, 4 contraventions of the same FTA offence provision as if the 5 offences were constituted by, or related to, contraventions of 6 the same provision of the Australian Consumer Law 7 (Queensland), chapter 4. 8 `(2) The Australian Consumer Law (Queensland), section 215 9 applies to an offence constituted by, or relating to, a 10 contravention of an FTA offence provision as if the offence 11 were constituted by, or related to, a contravention of a 12 provision of the Australian Consumer Law (Queensland), 13 chapter 4. 14 `61 General provision about injunctions and other 15 remedies 16 `(1) The Australian Consumer Law (Queensland), section 216 17 applies to an FTA offence provision as if the reference in 18 section 216 to a provision of the Australian Consumer Law 19 (Queensland), chapter 4 included a reference to the FTA 20 offence provision. 21 `(2) The Australian Consumer Law (Queensland), section 216, to 22 the extent the provision relates to the granting of an 23 injunction, applies to a code of practice as if the reference in 24 section 216 to a provision of the Australian Consumer Law 25 (Queensland), chapter 4 included a reference to the code of 26 practice. 27 `62 Undertakings for matters arising other than under 28 Australian Consumer Law (Queensland) 29 `(1) The Australian Consumer Law (Queensland), chapter 5, part 30 5-1, division 1 applies to a relevant matter as if the reference 31 to a matter in the Australian Consumer Law (Queensland), 32 section 218(1) included a reference to the relevant matter. 33 `(2) In this section-- 34 Page 58

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] relevant matter means any matter in relation to which the 1 commissioner has a power or function under this Act, other 2 than under the Australian Consumer Law (Queensland), 3 including any contravention of an FTA offence provision. 4 `63 Public warning notices 5 `(1) The Australian Consumer Law (Queensland), chapter 5, part 6 5-1, division 3 applies to a relevant provision as if the 7 reference in the Australian Consumer Law (Queensland), 8 section 223(1)(a) to a contravention of a provision of chapter 9 2, 3 or 4 included a reference to a contravention of the relevant 10 provision. 11 `(2) In this section-- 12 relevant provision means-- 13 (a) an FTA consumer offence provision; or 14 (b) section 45 or 47; or 15 (c) a code of practice. 16 `64 Pecuniary penalties for FTA consumer offence 17 provisions 18 `(1) The Australian Consumer Law (Queensland), chapter 5, part 19 5-2, division 1 applies to an FTA consumer offence provision 20 as if the provisions of the Australian Consumer Law 21 (Queensland) listed in the Australian Consumer Law 22 (Queensland), section 224(1)(a) included each of the FTA 23 consumer offence provisions. 24 `(2) For the application of the Australian Consumer Law 25 (Queensland) as provided for in subsection (1)-- 26 (a) the reference in the Australian Consumer Law 27 (Queensland), section 224(2)(c) to proceedings under 28 the Australian Consumer Law (Queensland), chapter 4 29 may be taken to include a reference to proceedings 30 under this Act for a criminal offence; and 31 Page 59

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (b) the FTA consumer offence provision that is section 1 84(1) is taken to be included in the table to the 2 Australian Consumer Law (Queensland), section 224(3) 3 in the same grouping as section 107(1) of that law; and 4 (c) the FTA consumer offence provision that is section 86 is 5 taken to be included in the table to the Australian 6 Consumer Law (Queensland), section 224(3) in the 7 same grouping as section 119(1) of that law. 8 `65 Injunctions 9 `(1) The Australian Consumer Law (Queensland), chapter 5, part 10 5-2, division 2 applies to a relevant provision as if the 11 reference in the Australian Consumer Law (Queensland), 12 section 232(1)(a) to a contravention of a provision of chapter 13 2, 3 or 4 of that law included a reference to a contravention of 14 the relevant provision. 15 `(2) In this section-- 16 relevant provision means-- 17 (a) an FTA offence provision other than section 92(1)(b), 18 (c), (d) or (e) or 92B; or 19 (b) a code of practice. 20 `66 Actions for damages 21 `(1) The Australian Consumer Law (Queensland), chapter 5, part 22 5-2, division 3 applies to a contravention of a relevant 23 provision as if the reference in the Australian Consumer Law 24 (Queensland), section 236(1)(b) to contravention of a 25 provision of the Australian Consumer Law (Queensland), 26 chapter 2 or 3 included a reference to contravention of the 27 relevant provision. 28 `(2) In this section-- 29 relevant provision means-- 30 (a) an FTA consumer offence provision; or 31 Page 60

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] (b) section 45 or 47; or 1 (c) a code of practice. 2 `67 Orders for compensation or redress 3 `(1) The Australian Consumer Law (Queensland), chapter 5, part 4 5-2, division 4 applies to a relevant provision-- 5 (a) as if the references in sections 237(1)(a)(i) and 6 238(1)(a) of that law to a provision of chapter 2, 3 or 4 7 of that law included a reference to the relevant 8 provision; and 9 (b) as if the reference in section 239(1)(a)(i) of that law to a 10 provision of chapter 2, chapter 3, part 3-1 or part 3-2, 11 division 2, 3 or 4 or chapter 4 of that law included a 12 reference to the relevant provision. 13 `(2) In this section-- 14 relevant provision means an FTA offence provision other than 15 section 92(1)(b), (c), (d) or (e) or 92B. 16 `68 Non-punitive orders 17 `The Australian Consumer Law (Queensland), section 246 18 applies to an FTA offence provision as if the reference in the 19 section to a provision of chapter 2, 3 or 4 of that law included 20 a reference to the FTA offence provision. 21 `69 Adverse publicity orders 22 `The Australian Consumer Law (Queensland), section 247 23 applies to an FTA offence provision as if the reference in 24 section 247(1)(b) of that law to a person who has committed 25 an offence against chapter 4 of that law included a reference to 26 a person who has committed an offence against the FTA 27 offence provision. 28 Page 61

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 18] `70 Orders disqualifying a person from managing a 1 corporation 2 `(1) The Australian Consumer Law (Queensland), section 248 3 applies in relation to a relevant provision as if the provisions 4 of the Australian Consumer Law (Queensland) mentioned in 5 section 248(1)(a) of that law included the relevant provision. 6 `(2) In this section-- 7 relevant provision means-- 8 (a) an FTA consumer offence provision; or 9 (b) section 45 or 47. 10 `71 Privilege against exposure to penalty or 11 forfeiture--disqualification from managing a 12 corporation 13 `(1) The Australian Consumer Law (Queensland), section 249 14 applies to a civil or criminal proceeding in relation to a 15 relevant provision as if the proceeding were a civil or criminal 16 proceeding mentioned in section 249(1) of that law. 17 `(2) In this section-- 18 relevant provision means-- 19 (a) an FTA consumer offence provision; or 20 (b) section 45 or 47. 21 `72 Publication of advertisement in the ordinary course 22 of business 23 `(1) The Australian Consumer Law (Queensland), section 251 24 applies in relation to a relevant provision as if the reference in 25 section 251(1) of that law to a contravention of chapter 3 of 26 the law included a reference to a contravention of the relevant 27 provision. 28 `(2) In this section-- 29 relevant provision means-- 30 Page 62

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 19] (a) an FTA consumer offence provision; or 1 (b) section 45 or 47. 2 `73 Supplying services for the purpose of resupply 3 `(1) Without limiting the Australian Consumer Law (Queensland), 4 section 253, section 253(2) of that law also applies to a 5 proceeding under chapter 5, part 5-2 of that law in relation to 6 a contravention of section 84(1) committed by the supplying 7 of services (the relevant services) that did not comply with a 8 safety standard for the services prescribed under section 83. 9 `(2) For applying subsection (1), the references in the Australian 10 Consumer Law (Queensland), section 253(2) and (3) to 11 product related services may be taken to be references to the 12 relevant services.'. 13 Clause 19 Amendment of pt 4 hdg (Information, safety and codes of 14 practice) 15 Part 4, heading, `Information, safety'-- 16 omit, insert-- 17 `Safety'. 18 Clause 20 Omission of pt 4, div 1 (Information provisions) 19 Part 4, division 1-- 20 omit. 21 Clause 21 Amendment of s 83 (Safety standards) 22 (1) Section 83(1) and (4)(b) and (c), `goods or'-- 23 omit. 24 (2) Section 83(2) and (4)(d)-- 25 omit. 26 Page 63

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 22] (3) Section 83(4)(e)-- 1 renumber as section 83(4)(d). 2 Clause 22 Amendment of s 84 (Compliance with safety standard) 3 (1) Section 84(1), after `supply'-- 4 insert-- 5 `or offer for supply'. 6 (2) Section 84(1) and (2), `goods or'-- 7 omit. 8 (3) Section 84(1), penalty-- 9 omit, insert-- 10 `Maximum penalty-- 11 (a) if the person is a body corporate--$1100000; or 12 (b) if the person is not a body corporate--$220000. 13 Note-- 14 A pecuniary penalty may be imposed for a contravention of this 15 section--see section 64 (Pecuniary penalties for FTA consumer offence 16 provisions).'. 17 (4) Section 84(3) and (3A)-- 18 omit. 19 Clause 23 Amendment of s 84A (Definition for div 3) 20 Section 84A, definition regulating instrument, paragraph (b), 21 `goods or'-- 22 omit. 23 Page 64

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 24] Clause 24 Amendment of s 85 (Minister may make orders 1 prohibiting or restricting supply of dangerous or 2 undesirable goods or services) 3 Section 85, heading, and section 85(1), `goods or'-- 4 omit. 5 Clause 25 Amendment of s 85A (Interim orders) 6 (1) Section 85A(3) to (6)-- 7 omit, insert-- 8 `(3) To give effect to an interim order, the Minister must publish 9 the interim order in the gazette. 10 `(4) An interim order is in force during the period (the ban period) 11 that-- 12 (a) starts on the day (the start day) that is the day stated in 13 the interim order, or the day the interim order is 14 gazetted, whichever is the later; and 15 (b) ends at the end of 60 days after the start day. 16 `(5) Before the ban period for the interim order ends, the Minister 17 may, by gazette notice, extend the ban period for the interim 18 order by a period of up to 30 days.'. 19 (2) Section 85A(7), `only be renewed'-- 20 omit, insert-- 21 `be extended only'. 22 Clause 26 Amendment of s 86 (Offence) 23 (1) Section 86, after `not supply'-- 24 insert-- 25 `or offer for supply'. 26 (2) Section 86, `goods or'-- 27 omit. 28 Page 65

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 27] (3) Section 86, penalty-- 1 omit, insert-- 2 `Maximum penalty-- 3 (a) if the person is a body corporate--$1100000; or 4 (b) if the person is not a body corporate--$220000. 5 Note-- 6 A pecuniary penalty may be imposed for a contravention of this 7 section--see section 64 (Pecuniary penalties for FTA consumer offence 8 provisions).'. 9 Clause 27 Amendment of s 87 (Seizure etc. of goods in certain 10 cases) 11 (1) Section 87(1), from `supplied'-- 12 omit, insert-- 13 `supplied-- 14 (a) in contravention of a relevant pecuniary penalty 15 provision; or 16 (b) in circumstances that constitute the commission of an 17 offence against section 45.'. 18 (2) Section 87(2), `section 86'-- 19 omit, insert-- 20 `a relevant offence provision'. 21 (3) Section 87(2), `a regulating instrument'-- 22 omit, insert-- 23 `a relevant regulating instrument'. 24 (4) Section 87(4)(a), `a regulating instrument'-- 25 omit, insert-- 26 `the relevant regulating instrument'. 27 (5) Section 87-- 28 insert-- 29 Page 66

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 28] `(8) In this section-- 1 relevant offence provision means-- 2 (a) section 45; or 3 (b) section 86; or 4 (c) any of the following provisions of the Australian 5 Consumer Law (Queensland)-- 6 (i) section 194; 7 (ii) section 195; 8 (iii) section 197; 9 (iv) section 198; 10 (v) section 199. 11 relevant pecuniary penalty provision means-- 12 (a) section 86; or 13 (b) any of the following provisions of the Australian 14 Consumer Law (Queensland)-- 15 (i) section 106(1); 16 (ii) section 107(1); 17 (iii) section 118(1); 18 (iv) section 119(1); 19 (v) section 127(2). 20 relevant regulating instrument means a regulating instrument 21 that is directly relevant to the offence with which the person is 22 charged.'. 23 Clause 28 Replacement of s 88B (Commissioner's power to ask for 24 substantiation of claims about the supply of goods or 25 services) 26 Section 88B-- 27 omit, insert-- 28 Page 67

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 29] `88B Definitions for div 1 1 `In this division-- 2 services includes product related services.'. 3 Clause 29 Amendment of s 89 (Powers of inspectors) 4 Section 89(1), `office of any of its functions'-- 5 omit, insert-- 6 `commissioner of any of the commissioner's functions'. 7 Clause 30 Amendment of s 90 (Power to obtain information) 8 (1) Section 90(3)(a), `an officer of the office specified'-- 9 omit, insert-- 10 `a stated officer of the department'. 11 (2) Section 90(8), `officer of the office'-- 12 omit, insert-- 13 `an officer of the department'. 14 Clause 31 Amendment of s 91A (General power to seize goods) 15 Section 91A(1), `other than section 86.' and footnote-- 16 omit, insert-- 17 `other than a relevant offence provision under section 87.'. 18 Clause 32 Amendment of s 91B (Returning the seized goods) 19 (1) Section 91B(1)(b)-- 20 omit, insert-- 21 `(b) if a prosecution for an offence, or a relevant pecuniary 22 penalty proceeding, involving the seized goods is started 23 within the 9 months--the prosecution for the offence, or 24 the relevant pecuniary penalty proceeding, and any 25 Page 68

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 33] appeal from the prosecution or relevant pecuniary 1 penalty proceeding.'. 2 (2) Section 91B-- 3 insert-- 4 `(3) In this section-- 5 relevant pecuniary penalty proceeding means a proceeding 6 under the Australian Consumer Law (Queensland), chapter 5, 7 part 5-2, division 1 in relation to an act or omission to which 8 section 224 of that law applies.'. 9 Clause 33 Amendment of s 91D (Hearing procedures) 10 (1) Section 91D(1), `Magistrates Courts Act 1921'-- 11 omit, insert-- 12 `Supreme Court of Queensland Act 1991'. 13 (2) Section 91D(2)(a), `rules made under the Magistrates Courts 14 Act 1921'-- 15 omit, insert-- 16 `Uniform Civil Procedure Rules 1999'. 17 Clause 34 Replacement of pt 5, div 1B hdg (Commissioner's power 18 to accept undertakings) 19 Part 5, division 1B, heading-- 20 omit, insert-- 21 `Division 1B Register of undertakings'. 22 Clause 35 Omission of ss 91H-91K 23 Sections 91H to 91K-- 24 omit. 25 Page 69

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 36] Clause 36 Amendment of s 91L (Register of undertakings) 1 Section 91L(1), `under this division'-- 2 omit, insert-- 3 `under the Australian Consumer Law (Queensland), chapter 5, 4 part 5-1, division 1, including under that division's extended 5 application.'. 6 Clause 37 Amendment of s 92 (Offences) 7 Section 92(1)-- 8 insert-- 9 `Note-- 10 A provision of this Act for which a penalty is provided would include 11 any provision of the Australian Consumer Law (Queensland), chapter 4 12 that provides for an offence.'. 13 Clause 38 Omission of s 92A (Aggregate penalties limited) 14 Section 92A-- 15 omit. 16 Clause 39 Amendment of s 92B (Attempts to commit offences) 17 Section 92B(2), after `provisions--'-- 18 omit, insert-- 19 `(a) a provision of the Australian Consumer Law 20 (Queensland), chapter 4; 21 (b) an FTA consumer offence provision; 22 (c) section 45.'. 23 Clause 40 Amendment of s 94 (Proceedings for offences) 24 (1) Section 94(1), `100 penalty units or less'-- 25 omit, insert-- 26 Page 70

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 40] `less than the higher level penalty amount'. 1 (2) Section 94(2), `the Act'-- 2 omit, insert-- 3 `this Act'. 4 (3) Section 94(2), `greater than 100 penalty units'-- 5 omit, insert-- 6 `the higher level penalty amount or more'. 7 (4) Section 94(3)(a), `270 penalty units'-- 8 omit, insert-- 9 `half of the maximum penalty stated for the offence'. 10 (5) Section 94(3)(a)-- 11 insert-- 12 `Example-- 13 The maximum penalty for an offence against the Australian 14 Consumer Law (Queensland), section 151(1) (False or 15 misleading representations about goods or services) is $1100000 16 for a body corporate or $220000 for a person who is not a body 17 corporate. If the offence is prosecuted in a summary way, the 18 maximum penalty that could be imposed for the offence would 19 be $550000 for a body corporate or $110000 for a person who is 20 not a body corporate.'. 21 (6) Section 94(6)-- 22 omit, insert-- 23 `(6) A proceeding for an offence against this Act may be 24 commenced only by-- 25 (a) an inspector; or 26 (b) another person, with the commissioner's approval. 27 `(7) In this section-- 28 higher level penalty amount, in relation to a maximum 29 penalty for an offence, means an amount of maximum penalty 30 that is, or that is calculated to be-- 31 Page 71

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 41] (a) if the person committing the offence is a body 1 corporate--$1100000; or 2 (b) if the person committing the offence is not a body 3 corporate--$220000. 4 Example of offence for which the maximum penalty is the higher level 5 penalty amount-- 6 The Australian Consumer Law (Queensland), section 194(1) (Supplying 7 etc. consumer goods that do not comply with safety standards) provides 8 for a penalty of $1100000 for a body corporate or $220000 for a person 9 who is not a body corporate. 10 Example of offence for which the maximum penalty is calculated to be less 11 than the higher level penalty amount-- 12 Section 45(1) (Compliance with embargo notice) provides for a 13 maximum penalty of 200 penalty units for a body corporate or 40 14 penalty units for a person who is not a body corporate. If the value of a 15 penalty unit for that section is $110 (see section 45(6)), the maximum 16 penalty for the offence is calculated to be $22000 for a body corporate 17 or $4400 for a person who is not a body corporate.'. 18 Clause 41 Amendment of s 95 (Conduct by directors, servants or 19 agents--TPA s 84) 20 Section 95, heading, `--TPA s 84'-- 21 omit. 22 Clause 42 Amendment of s 96 (Vicarious liability) 23 (1) Section 96(1), `subject to section 97'-- 24 omit, insert-- 25 `subject to the operation of the Australian Consumer Law 26 (Queensland), chapter 4, part 4-6'. 27 (2) Section 96(2), `section 88B or 90'-- 28 omit, insert-- 29 `the Australian Consumer Law (Queensland), chapter 5, part 30 5-1, division 2 or under section 90'. 31 Page 72

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 43] Clause 43 Amendment of s 97 (Defences in proceedings for an 1 offence against this Act--TPA s 85) 2 (1) Section 97, heading, `Defences in proceedings'-- 3 omit, insert-- 4 `Proceedings'. 5 (2) Section 97, heading, `--TPA s 85'-- 6 omit. 7 (3) Section 97(1) to (4) and (6)-- 8 omit. 9 Clause 44 Omission of ss 98-100 10 Sections 98 to 100-- 11 omit. 12 Clause 45 Amendment of s 101 (Mode of enforcement of 13 compensation) 14 (1) Section 101, `section 100', first mention-- 15 omit, insert-- 16 `the Australian Consumer Law (Queensland), chapter 5, part 17 5-2, division 4 (the ACL(Q) provision)'. 18 (2) Section 101(a) and (b), `section 100'-- 19 omit, insert-- 20 `the ACL(Q) provision'. 21 Clause 46 Omission of ss 102 and 103 22 Sections 102 and 103-- 23 omit. 24 Page 73

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 47] Clause 47 Amendment of s 103A (Examination costs) 1 (1) Section 103A(1)-- 2 insert-- 3 `services includes product related services.'. 4 (2) Section 103A(2)(a), `an information or safety standard'-- 5 omit, insert-- 6 `a safety standard under section 83, or an information 7 standard or safety standard under the Australian Consumer 8 Law (Queensland),'. 9 (3) Section 103A(2)(b), after `section 85'-- 10 insert-- 11 `, or under the Australian Consumer Law (Queensland), 12 section 109 or 114,'. 13 Clause 48 Amendment of s 104 (Impersonation) 14 Section 104, `of the office'-- 15 omit, insert-- 16 `of the department'. 17 Clause 49 Amendment of s 105 (Reference to consumer authorities 18 and other matters restricted) 19 Section 105(a)-- 20 omit, insert-- 21 `(a) without the Minister's prior written agreement-- 22 (i) refer to an inspector, the commissioner or an 23 officer of the department; or 24 (ii) use an expression that is, or that resembles, the 25 expression `Office of Fair Trading'; or 26 (iii) use, in relation to a matter falling within the 27 functions of the commissioner, an expression that 28 Page 74

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 50] is, or that resembles, the current or a previous 1 name of the department; or'. 2 Clause 50 Omission of s 108 (Severability) 3 Section 108-- 4 omit. 5 Clause 51 Amendment of s 109 (Limitation of action) 6 (1) Section 109(1)(a)-- 7 omit, insert-- 8 `(a) because of any disclosure made to the commissioner, 9 any officer of the department or any inspector; or'. 10 (2) Section 109(2), `of the office'-- 11 omit, insert-- 12 `of the department'. 13 Clause 52 Omission of s 109A (Insurance contracts--limitation on 14 effect of information disclosure) 15 Section 109A-- 16 omit. 17 Clause 53 Amendment of s 110 (Preservation of secrecy) 18 (1) Section 110(1), `a member of the council, or the committee, 19 or'-- 20 omit. 21 (2) Section 110(1) and (2)(a), `of the office'-- 22 omit, insert-- 23 `of the department'. 24 (3) Section 110-- 25 Page 75

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 54] insert-- 1 `(6) Subsection (1) is taken also to refer to a person who was at 2 any time-- 3 (a) a member of the former Consumer Safety Committee or 4 former Consumer Affairs Council; or 5 (b) an officer of the former Office of Fair Trading.'. 6 Clause 54 Omission of s 111 (Service of documents etc.) 7 Section 111-- 8 omit. 9 Clause 55 Amendment of s 112 (Evidence) 10 (1) Section 112(1)(b), `section 40'-- 11 omit, insert-- 12 `the Australian Consumer Law (Queensland), section 29 or 13 151'. 14 (2) Section 112(2), `section 99'-- 15 omit, insert-- 16 `the Australian Consumer Law (Queensland), section 236, in 17 a proceeding in which the court may make an order under the 18 Australian Consumer Law (Queensland), section 238'. 19 (3) Section 112(2), `section 100(2)'-- 20 omit, insert-- 21 `the Australian Consumer Law (Queensland), section 237 or 22 239'. 23 (4) Section 112(2), `section 98'-- 24 omit, insert-- 25 `the Australian Consumer Law (Queensland), chapter 5, part 26 5-2, division 2'. 27 (5) Section 112-- 28 Page 76

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 56] insert-- 1 `(4) In subsection (1)(f)(i)-- 2 regulations includes regulations under section 139G of the 3 Competition and Consumer Act.'. 4 Clause 56 Omission of s 116 (Transitional provision for references 5 to Office of Consumer Affairs) 6 Section 116-- 7 omit. 8 Clause 57 Insertion of new pt 10 9 After section 118-- 10 insert-- 11 `Part 10 Transitional provisions for Fair 12 Trading (Australian Consumer 13 Law) Amendment Act 2010 14 `119 Definitions for this part 15 `In this part-- 16 amending Act means the Fair Trading (Australian Consumer 17 Law) Amendment Act 2010. 18 commencement means the day this definition commences. 19 `120 Transitional provision for references to Office of 20 Consumer Affairs or Office of Fair Trading 21 `A reference in any Act or document to the Office of 22 Consumer Affairs or the Office of Fair Trading may, if the 23 context permits, be taken to be a reference to whichever of the 24 following is appropriate in the circumstances-- 25 Page 77

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 2 Amendment of Fair Trading Act 1989 [s 57] (a) the commissioner; 1 (b) the department in which this Act is administered. 2 `121 Transitional provision relating to undertakings and 3 the register of undertakings 4 `(1) The register of undertakings kept under section 91L before the 5 commencement continues after the commencement to be the 6 register kept for that section as amended by the amending Act. 7 `(2) An undertaking (an old undertaking) that, immediately 8 before the commencement, was still in force and was included 9 in the register continues to have effect after the 10 commencement, to the greatest practicable extent, as if it were 11 an undertaking (a new undertaking) given under the 12 Australian Consumer Law (Queensland), chapter 5, part 5-1, 13 division 1. 14 `(3) Without limiting subsection (2), a breach of the old 15 undertaking that happens after the commencement must be 16 dealt with as if it were a breach of a new undertaking. 17 `(4) For subsection (3), a reference in an old undertaking to a 18 provision of this Act that is repealed on the commencement 19 must be taken, to the greatest practicable extent, to be a 20 reference to a provision of the Australian Consumer Law 21 (Queensland) that corresponds to the repealed provision. 22 `122 Proceedings 23 `(1) A proceeding started under this Act before the 24 commencement must be completed under this Act as if the 25 amending Act had not been enacted. 26 `(2) After the commencement, a relevant proceeding may be 27 started, and may be completed, under this Act as if the 28 amending Act had not been enacted. 29 `(3) Subsection (2) applies only if, at the time the proceeding is 30 started, it could have been started under this Act if the 31 amending Act had not been enacted. 32 Page 78

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 58] `(4) In this section-- 1 relevant proceeding means a proceeding in relation to-- 2 (a) a contravention of this Act happening before the 3 commencement; or 4 (b) another matter or thing arising under this Act before the 5 commencement.'. 6 Clause 58 Amendment of schedule (Subject matters for regulations) 7 (1) Schedule, section 3, heading, `goods and'-- 8 omit. 9 (2) Schedule, sections 3 and 6, `goods or'-- 10 omit. 11 (3) Schedule, sections 4, 5 and 9-- 12 omit. 13 (4) Schedule, sections 6 to 8-- 14 renumber as schedule, sections 4 to 6. 15 Part 3 Amendment of Security 16 Providers Act 1993 17 Clause 59 Act amended 18 This part amends the Security Providers Act 1993. 19 Clause 60 Insertion of new s 7A 20 After section 7-- 21 insert-- 22 Page 79

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 61] `7A Who is a relevant person 1 `A relevant person, for an application for a licence or 2 application for renewal of an unrestricted licence, is-- 3 (a) if the application is made by an individual--the 4 individual; or 5 (b) if the application is made by a corporation--an officer 6 of the corporation; or 7 (c) if the application is made by a partnership--a partner of 8 the partnership.'. 9 Clause 61 Amendment of s 10 (Application) 10 Section 10-- 11 insert-- 12 `(8) An application for a licence may be considered by the chief 13 executive only if each relevant person for the application is 14 agreeable to having his or her fingerprints taken by the 15 Commissioner under section 27, unless the Commissioner 16 already holds the relevant person's fingerprints taken under 17 section 27. 18 `(9) If a regulation prescribes a fee for taking a relevant person's 19 fingerprints under section 27, the application must be 20 accompanied by the fee for each relevant person for the 21 application. 22 `(10) However, subsection (9) does not apply if the Commissioner 23 already holds the relevant person's fingerprints taken under 24 section 27. 25 `(11) If a relevant person's fingerprints are not taken under section 26 27 for the application, the chief executive must refund to the 27 applicant any fee paid under subsection (9) for the relevant 28 person for the application.'. 29 Clause 62 Amendment of s 14 (Decision on application) 30 Section 14-- 31 Page 80

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 63] insert-- 1 `(6) This section is subject to section 28(1).'. 2 Clause 63 Amendment of s 20 (Renewal of unrestricted licence) 3 (1) Section 20(2), after `section 22'-- 4 insert-- 5 `or 28(2).' 6 (2) Section 20-- 7 insert-- 8 `(7) An application for renewal of an unrestricted licence may be 9 considered by the chief executive only if each relevant person 10 for the application is agreeable to having his or her 11 fingerprints taken by the Commissioner under section 27, 12 unless the Commissioner already holds the relevant person's 13 fingerprints taken under section 27. 14 `(8) If a regulation prescribes a fee for taking a relevant person's 15 fingerprints under section 27, the application must be 16 accompanied by the fee for each relevant person for the 17 application. 18 `(9) However, subsection (8) does not apply if the Commissioner 19 already holds the relevant person's fingerprints taken under 20 section 27. 21 `(10) If a relevant person's fingerprints are not taken under section 22 27 for the application, the chief executive must refund to the 23 applicant any fee paid under subsection (8) for the relevant 24 person for the application.'. 25 Clause 64 Insertion of new pt 2, div 7 26 After section 26-- 27 insert-- 28 Page 81

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 64] `Division 7 Fingerprint procedures 1 `27 Fingerprints to be taken 2 `(1) This section applies if a person is agreeable under section 3 10(8) or 20(7) to having his or her fingerprints taken by the 4 Commissioner. 5 `(2) For the following purposes, the chief executive must ask the 6 Commissioner to take the person's fingerprints-- 7 (a) to assist the chief executive in deciding whether the 8 person is, or continues to be, an appropriate person to 9 hold a licence; 10 (b) to assist the chief executive in identifying the person for 11 the purpose mentioned in paragraph (a). 12 `(3) The Commissioner must comply with a request made under 13 subsection (2). 14 `28 Chief executive must refuse to grant, or renew, 15 licence if fingerprints have not been taken 16 `(1) The chief executive must refuse to grant a licence if the 17 fingerprints of each relevant person for the application for the 18 licence have not been taken by the Commissioner under 19 section 27. 20 `(2) The chief executive must refuse to renew an unrestricted 21 licence if the fingerprints of each relevant person for the 22 application for the renewal have not been taken by the 23 Commissioner under section 27. 24 `29 Commissioner to give chief executive information 25 about a person's identity derived from fingerprints 26 `(1) The Commissioner must give the chief executive information 27 about a person's identity derived from fingerprints of the 28 person taken under section 27. 29 Page 82

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 64] `(2) However, the Commissioner must not give information under 1 subsection (1) about a particular person if the Commissioner 2 is reasonably satisfied that giving the information-- 3 (a) may prejudice or otherwise hinder an investigation to 4 which the information may be relevant; or 5 (b) may affect the safety of a police officer, complainant, 6 informant or other person. 7 `30 Use of fingerprints by Commissioner 8 `The Commissioner may use the fingerprints of a person taken 9 under section 27 only-- 10 (a) to comply with section 29; or 11 (b) for performing a function of the Queensland Police 12 Service. 13 `31 Destruction of fingerprints 14 `(1) This section applies if-- 15 (a) an application is made for a licence or renewal of an 16 unrestricted licence; and 17 (b) a relevant person's fingerprints have been taken under 18 section 27 for the application; and 19 (c) either-- 20 (i) the applicant withdraws the application; or 21 (ii) the chief executive refuses to grant or renew the 22 licence, and the applicant's review rights under 23 section 26 for the application have been exhausted. 24 `(2) This section also applies if-- 25 (a) either-- 26 (i) a licence is cancelled under section 22, and the 27 licensee's review rights under section 26 for the 28 cancellation have been exhausted; or 29 Page 83

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 3 Amendment of Security Providers Act 1993 [s 65] (ii) a licensee does not apply, under section 20, for the 1 renewal of the licence before the licence ends; and 2 (b) a relevant person's fingerprints have been taken under 3 section 27 for an application for the licence or renewal 4 of the licence. 5 `(3) The chief executive must request the Commissioner to destroy 6 the fingerprints. 7 `(4) The Commissioner must comply with the request within a 8 reasonable time. 9 `(5) In complying with the request, the Commissioner must 10 destroy the fingerprints in the presence of a justice.'. 11 Clause 65 Insertion of new pt 7 12 After section 64-- 13 insert-- 14 `Part 7 Transitional provisions for Fair 15 Trading (Australian Consumer 16 Law) Amendment Act 2010 17 `65 When provisions relating to application for licence, or 18 renewal of unrestricted licence, do not apply 19 `(1) Section 10(8) to (11) and part 2, division 7 do not apply to an 20 application for a licence that is undecided immediately before 21 the commencement of this section. 22 `(2) Section 20(7) to (10) and part 2, division 7 do not apply to an 23 application for renewal of an unrestricted licence that is 24 undecided immediately before the commencement of this 25 section. 26 Page 84

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Part 4 Amendment of other Acts [s 66] `66 Deferral of application of provisions relating to 1 application for renewal of unrestricted licence 2 `Section 20(7) to (10) and part 2, division 7 only apply to an 3 application for renewal of an unrestricted licence made on or 4 after the day that is 3 months after the commencement of this 5 section.'. 6 Clause 66 Amendment of sch 2 (Dictionary) 7 (1) Schedule 2-- 8 insert-- 9 `fingerprint means an image or impression of friction ridge 10 detail from the palmar surface of a person's hand and includes 11 a digital image of the friction ridge detail from the palmar 12 surface of the person's hand. 13 relevant person see section 7A.'. 14 (2) Schedule 2, definition disqualifying offence, paragraph (a)-- 15 insert-- 16 `(v) against a provision of the Criminal Code of the 17 Commonwealth, part 5.3, or a law of a State, or an 18 overseas country, that relates to terrorism; and'. 19 Part 4 Amendment of other Acts 20 Clause 67 Acts amended 21 The schedule amends the Acts it mentions. 22 Page 85

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule Schedule Amendments 1 section 67 2 Chicken Meat Industry Committee Act 1976 3 1 Section 2, definition competition legislation, `the Trade 4 Practices Act 1974 (Cwlth)'-- 5 omit, insert-- 6 `the Competition and Consumer Act 2010 (Cwlth)'. 7 Civil Liability Act 2003 8 1 Section 28(1)(b), `section 38 of that Act'-- 9 omit, insert-- 10 `the Australian Consumer Law (Queensland), section 18'. 11 2 Section 32F, `the Fair Trading Act 1989, section 38'-- 12 omit, insert-- 13 `the Australian Consumer Law (Queensland), section 18'. 14 Competition Policy Reform (Queensland) Act 1996 15 1 Section 3(1), definition Trade Practices Act-- 16 omit. 17 Page 86

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 2 Section 3(1)-- 1 insert-- 2 `Competition and Consumer Act means the Competition and 3 Consumer Act 2010 (Cwlth).'. 4 3 Section 3(1), definitions Commission, Council, officer 5 and Tribunal, `Trade Practices Act'-- 6 omit, insert-- 7 `Competition and Consumer Act'. 8 4 Section 3(1), definition Schedule version of Part IV, `the 9 Schedule to the Trade Practices Act'-- 10 omit, insert-- 11 `Schedule 1 of the Competition and Consumer Act'. 12 5 Sections 4(1)(b) and (c), 8(6), definition Commonwealth 13 Minister, 27(1), (2) and (4), 34, 35 and 39, `Trade Practices 14 Act'-- 15 omit, insert-- 16 `Competition and Consumer Act'. 17 Criminal Proceeds Confiscation Act 2002 18 1 Schedule 2, part 2, item 5-- 19 omit, insert-- 20 `5 Australian Consumer Law (Queensland), chapter 4, part 4-1 21 (other than division 3)'. 22 Page 87

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule Dental Technicians Registration Act 2001 1 1 Section 45(2)(c)(i)-- 2 insert-- 3 `Note-- 4 An offence against the Fair Trading Act 1989 includes an 5 offence against the Australian Consumer Law 6 (Queensland) which forms part of that Act.'. 7 Electricity Act 1994 8 1 Section 120ZL, `section 120ZN'-- 9 omit, insert-- 10 `section 120ZM'. 11 2 Section 120ZL, `the Fair Trading Act 1989'-- 12 omit, insert-- 13 `the Fair Trading Act 1989, including the Australian 14 Consumer Law (Queensland) forming part of that Act'. 15 3 Section 120ZM, heading, `Fair Trading Act 1989, s 61 for 16 door-to-door contracts'-- 17 omit, insert-- 18 `Australian Consumer Law (Queensland) for unsolicited 19 consumer agreements'. 20 4 Section 120ZM(1)(b), `a prescribed contract under the 21 Fair Trading Act 1989 (FTA), part 3, division 4'-- 22 omit, insert-- 23 Page 88

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule `an unsolicited consumer agreement under the Australian 1 Consumer Law (Queensland)'. 2 5 Section 120ZM(2) to (4)-- 3 omit, insert-- 4 `(2) The contract is taken to comply with any requirement 5 applying under section 79(b) (paragraph (b)) of the 6 Australian Consumer Law (Queensland) (ACL(Q)) for 7 informing the customer of the termination period applying to 8 the contract under ACL(Q) if a statement included in the 9 contract, as otherwise required under paragraph (b), states the 10 cooling-off period that the industry code requires for the 11 contract instead of the termination period applying under 12 ACL(Q). 13 `(3) The requirements under section 79 of ACL(Q) for the notices 14 mentioned in section 79(b) and (c) of ACL(Q) are taken to 15 have been complied with if-- 16 (a) the customer is given a notice (a substitute notice) by or 17 for the retail entity in relation to the entering into of the 18 contract, as required under the industry code; and 19 (b) the substitute notice complies with-- 20 (i) all requirements under the industry code about 21 explaining the customer's right to rescind the 22 contract; and 23 (ii) the requirements for a notice or notices stated in 24 section 79(b)(ii) and (iii) and (c)(ii); and 25 (c) the substitute notice gives all information that is relevant 26 to the goods or services to be provided under the 27 contract. 28 `(4) However, the substitute notice need not comply with any 29 requirement otherwise applying under ACL(Q) for the 30 substitute notice to be separate from, and not attached to, any 31 other document.'. 32 Page 89

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 6 Section 135BU(2)(c), `Trade Practices Act 1974 (Cwlth)'-- 1 omit, insert-- 2 `Competition and Consumer Act 2010 (Cwlth)'. 3 Gas Supply Act 2003 4 1 Section 270ZJA, `the Fair Trading Act 1989'-- 5 omit, insert-- 6 `the Fair Trading Act 1989, including the Australian 7 Consumer Law (Queensland) forming part of that Act'. 8 2 Section 270ZJB, heading, `Fair Trading Act 1989, s 61 for 9 door-to-door contracts'-- 10 omit, insert-- 11 `Australian Consumer Law (Queensland) for unsolicited 12 consumer agreements'. 13 3 Section 270ZJB(1)(b), `a prescribed contract under the 14 Fair Trading Act 1989 (FTA), part 3, division 4'-- 15 omit, insert-- 16 `an unsolicited consumer agreement under the Australian 17 Consumer Law (Queensland)'. 18 4 Section 270ZJB(2) to (4)-- 19 omit, insert-- 20 `(2) The contract is taken to comply with any requirement 21 applying under section 79(b) (paragraph (b)) of the 22 Australian Consumer Law (Queensland) (ACL(Q)) for 23 informing the customer of the termination period applying to 24 the contract under ACL(Q) if a statement included in the 25 contract, as otherwise required under paragraph (b), states the 26 Page 90

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule cooling-off period that the industry code requires for the 1 contract instead of the termination period applying under 2 ACL(Q). 3 `(3) The requirements under section 79 of ACL(Q) for the notices 4 mentioned in section 79(b) and (c) of ACL(Q) are taken to 5 have been complied with if-- 6 (a) the customer is given a notice (a substitute notice) by or 7 for the retail entity in relation to the entering into of the 8 contract, as required under the industry code; and 9 (b) the substitute notice complies with-- 10 (i) all requirements under the industry code about 11 explaining the customer's right to rescind the 12 contract; and 13 (ii) the requirements for a notice or notices stated in 14 section 79(b)(ii) and (iii) and (c)(ii); and 15 (c) the substitute notice gives all information that is relevant 16 to the goods or services to be provided under the 17 contract. 18 `(4) However, the substitute notice need not comply with any 19 requirement otherwise applying under ACL(Q) for the 20 substitute notice to be separate from, and not attached to, any 21 other document.'. 22 Gladstone Power Station Agreement Act 1993 23 1 Section 30, `Trade Practices Act 1974 (Cwlth)'-- 24 omit, insert-- 25 `Competition and Consumer Act 2010 (Cwlth)'. 26 Page 91

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule Health Practitioners (Professional Standards) Act 1 1999 2 1 Section 124(1)(g)(iii)-- 3 insert-- 4 `Note-- 5 An offence against the Fair Trading Act 1989 includes an 6 offence against the Australian Consumer Law 7 (Queensland) which forms part of that Act.'. 8 Introduction Agents Act 2001 9 1 Section 4(2)-- 10 omit. 11 2 Section 20(2), from `of the applicant--'-- 12 omit, insert-- 13 `of the applicant has within the last 5 years-- 14 (a) been convicted of an offence against this Act, the Fair 15 Trading Act 1989, including the Australian Consumer 16 Law (Queensland) forming part of that Act, or a 17 corresponding law; or 18 (b) breached an undertaking given under this Act to the 19 chief executive; or 20 (c) breached an undertaking given under the Fair Trading 21 Act 1989 to the commissioner for fair trading appointed 22 under that Act, including an undertaking given under the 23 Australian Consumer Law (Queensland) to that 24 commissioner as a regulator under that law.'. 25 Page 92

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 3 Section 26(d) and (e)-- 1 omit, insert-- 2 `(d) the licensee or an associated person of the licensee 3 has-- 4 (i) breached an undertaking given under this Act to 5 the chief executive; or 6 (ii) breached an undertaking given under the Fair 7 Trading Act 1989 to the commissioner for fair 8 trading appointed under that Act, including an 9 undertaking given under the Australian Consumer 10 Law (Queensland) to that commissioner as a 11 regulator under that law; 12 (e) the licensee or an associated person of the licensee has 13 within the last 5 years been convicted of an offence 14 against this Act, the Fair Trading Act 1989, including 15 the Australian Consumer Law (Queensland) forming 16 part of that Act, or a corresponding law;'. 17 4 Schedule 2, definition corresponding law-- 18 insert-- 19 `Note-- 20 The Australian Consumer Law (Queensland) forms part of the Fair 21 Trading Act 1989.'. 22 Jurisdiction of Courts (Cross-vesting) Act 1987 23 1 Section 10, heading, `under Part V, Division 1 or 1A of the 24 Trade Practices Act'-- 25 omit, insert-- 26 `under particular provisions of the Australian Consumer 27 Law applying as a law of the Commonwealth'. 28 Page 93

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 2 Section 10(b)-- 1 omit, insert-- 2 `(b) a matter for determination in the proceeding is a matter 3 arising under any of the following provisions of the 4 Competition and Consumer Act 2010 (Cwlth), schedule 5 2, applying as a law of the Commonwealth-- 6 � chapter 3, part 3-1, divisions 1, 2, 4 or 5 7 � chapter 3, part 3-3 8 � chapter 3, part 3-4; and'. 9 Medical Radiation Technologists Registration Act 10 2001 11 1 Section 45(2)(c)(i)-- 12 insert-- 13 `Note-- 14 An offence against the Fair Trading Act 1989 includes an 15 offence against the Australian Consumer Law 16 (Queensland) which forms part of that Act.'. 17 Occupational Therapists Registration Act 2001 18 1 Section 45(2)(c)(i)-- 19 insert-- 20 `Note-- 21 An offence against the Fair Trading Act 1989 includes an 22 offence against the Australian Consumer Law 23 (Queensland) which forms part of that Act.'. 24 Page 94

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule Property Agents and Motor Dealers Act 2000 1 1 Section 373I(1)(b) and editor's note to section 373I(1)-- 2 omit, insert-- 3 `(b) the Australian Consumer Law (Queensland), section 18, 4 20, 29, 30, 151 or 152.'. 5 2 Section 573C(7), editor's note-- 6 omit, insert-- 7 `Example-- 8 Australian Consumer Law (Queensland), section 30 (False or 9 misleading representations about sale etc. of land)'. 10 3 Section 574(7), editor's note-- 11 omit, insert-- 12 `Example-- 13 Australian Consumer Law (Queensland), section 30 (False or 14 misleading representations about sale etc. of land)'. 15 Queensland Building Services Authority Act 1991 16 1 Section 89(h)-- 17 insert-- 18 `Note-- 19 A contravention of the Fair Trading Act 1989 includes a 20 contravention of the Australian Consumer Law (Queensland) 21 which forms part of that Act.'. 22 2 Section 90(1)(c)-- 23 insert-- 24 Page 95

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule `Note-- 1 A contravention of the Fair Trading Act 1989 includes a 2 contravention of the Australian Consumer Law (Queensland) 3 which forms part of that Act.'. 4 Queensland Competition Authority Act 1997 5 1 Section 72(2)(c)(i), `Trade Practices Act 1974 (Cwlth)'-- 6 omit, insert-- 7 `Competition and Consumer Act 2010 (Cwlth)'. 8 Racing Act 2002 9 1 Section 113G(2), `Trade Practices Act 1974 (Cwlth)'-- 10 omit, insert-- 11 `Competition and Consumer Act 2010 (Cwlth)'. 12 2 Section 113G(3), definition competition legislation, `Trade 13 Practices Act 1974 (Cwlth)'-- 14 omit, insert-- 15 `Competition and Consumer Act 2010 (Cwlth)'. 16 Retail Shop Leases Act 1994 17 1 Part 6, division 8A, editor's note that appears immediately 18 after the division heading-- 19 omit. 20 Page 96

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 2 Section 46B(5), definitions applicable industry code and 1 industry code, `Trade Practices Act 1974 (Cwlth)'-- 2 omit, insert-- 3 `Competition and Consumer Act 2010 (Cwlth)'. 4 Retirement Villages Act 1999 5 1 Section 25, after `the Fair Trading Act 1989'-- 6 insert-- 7 `, including the Australian Consumer Law (Queensland) 8 forming part of that Act,'. 9 Speech Pathologists Registration Act 2001 10 1 Section 45(2)(c)(i)-- 11 insert-- 12 `Note-- 13 An offence against the Fair Trading Act 1989 includes an 14 offence against the Australian Consumer Law 15 (Queensland) which forms part of that Act.'. 16 Page 97

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule State Buildings Protective Security Act 1983 1 1 Section 4(6), definition non-commercial authority of the 2 State, `Trade Practices Act 1974 (Cwlth), section 2C.' and 3 footnote-- 4 omit, insert-- 5 `Competition and Consumer Act 2010 (Cwlth), section 2C.'. 6 Subcontractors' Charges Act 1974 7 1 Section 5(6)(b)(iii), `Trade Practices Act 1974 (Cwlth)'-- 8 omit, insert-- 9 `Competition and Consumer Act 2010 (Cwlth)'. 10 Sugar Industry Act 1999 11 1 Section 236, definition competition legislation, `Trade 12 Practices Act 1974 (Cwlth)'-- 13 omit, insert-- 14 `Competition and Consumer Act 2010 (Cwlth)'. 15 Tourism Services Act 2003 16 1 Section 13(3)(c), `Trade Practices Act 1974 (Cwlth)'-- 17 omit, insert-- 18 `Competition and Consumer Act 2010 (Cwlth)'. 19 Page 98

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 2 Section 13(3)(c)-- 1 insert-- 2 `Note for subsection (3)(c)-- 3 An offence against the Fair Trading Act 1989 includes an offence 4 against the Australian Consumer Law (Queensland) which forms part of 5 that Act.'. 6 3 Section 14(d), `or the Fair Trading Act 1989, part 5, 7 division 1B,'-- 8 omit, insert-- 9 `or the Australian Consumer Law (Queensland), chapter 5, 10 part 5-1, division 1,'. 11 4 Section 29(1)(a), `the Trade Practices Act 1974 (Cwlth)'-- 12 omit, insert-- 13 `the Competition and Consumer Act 2010 (Cwlth)'. 14 5 Section 29(1)(a)-- 15 insert-- 16 `Note-- 17 A contravention of the Fair Trading Act 1989 includes a 18 contravention of the Australian Consumer Law (Queensland) 19 which forms part of that Act.'. 20 6 Section 32(3)-- 21 omit, insert-- 22 `(3) In this section-- 23 serious offence means an offence under-- 24 (a) any of the following provisions of the Australian 25 Consumer Law (Queensland), chapter 4-- 26 (i) part 4-1, other than section 165; 27 (ii) part 4-2, other than division 3; 28 Page 99

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule (iii) part 4-3, other than sections 196, 200, 201 and 1 division 4; 2 (iv) part 4-4; or 3 (b) a law of another State or another country that provides 4 for the same, or substantially the same, matter as a 5 provision of the Australian Consumer Law 6 (Queensland) mentioned in paragraph (a) and for which 7 the maximum penalty is-- 8 (i) at least 100 penalty units; or 9 (ii) an amount at least equal to the value of 100 penalty 10 units; or 11 (iii) imprisonment.'. 12 7 Section 96(1)(a)-- 13 omit, insert-- 14 `(a) of the department in which the Fair Trading Act 1989 is 15 administered; or'. 16 8 After part 14-- 17 insert-- 18 `Part 15 Transitional provision for Fair 19 Trading (Australian Consumer 20 Law) Amendment Act 2010 21 `102 Reference to Australian Consumer Law (Queensland) 22 provision 23 `For section 14, the reference to the Australian Consumer Law 24 (Queensland), chapter 5, part 5-1, division 1 is taken to 25 include a reference to the repealed part 5, division 1B of the 26 Fair Trading Act 1989.'. 27 Page 100

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 9 Schedule 2, definition corresponding law, `the Trade 1 Practices Act 1974 (Cwlth)'-- 2 omit, insert-- 3 `the Competition and Consumer Act 2010 (Cwlth)'. 4 Transport Operations (Passenger Transport) Act 1994 5 1 Section 154B, definition TPA-- 6 omit. 7 2 Section 154B-- 8 insert-- 9 `CCA means the Competition and Consumer Act 2010 10 (Cwlth).'. 11 3 Section 154B, definition competition legislation, `TPA'-- 12 omit, insert-- 13 `CCA'. 14 4 Section 154L(1)(b) and (c)(i) and (2), `TPA' 15 omit, insert-- 16 `CCA'. 17 5 Schedule 3, definition TPA-- 18 omit. 19 Page 101

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Schedule 6 Schedule 3-- 1 insert-- 2 `CCA, for chapter 12, part 2, see section 154B.'. 3 Travel Agents Act 1988 4 1 Section 6, definition commissioner or commissioner for 5 consumer affairs-- 6 omit. 7 2 Section 6-- 8 insert-- 9 `commissioner means the commissioner for fair trading 10 appointed under the Fair Trading Act 1989. 11 commissioner for consumer affairs means the commissioner. 12 Note-- 13 See sections 16, 24, 46 and 47 for use of this expression.'. 14 � State of Queensland 2010 Page 102

AMENDMENTS TO BILL

Fair Trading (Australian Consumer Law) Amendment Bill 2010 Fair Trading (Australian Consumer Law) Amendment Bill 2010 Amendments agreed to during Consideration 1 Clause 18 (Replacement of pt 3 (Trade practices)) Page 55, after line 25-- insert-- `53A Interpretation of unsolicited consumer agreement permitted hours provisions and termination period provision `(1) In a permitted hours provision, for applying the definition unsolicited consumer agreement as provided for in the Australian Consumer Law (Queensland), section 69, subsection (1) of that section is taken not to include paragraph (d). `(2) In the termination period provision, for applying the definition unsolicited consumer agreement as provided for in the Australian Consumer Law (Queensland), section 69, subsection (1) of that section is taken not to include paragraph (d), but only if the Australian Consumer Law (Queensland), section 73 was contravened in relation to the agreement the subject of termination. `(3) If an agreement is terminated under the termination period provision because of the operation of subsection (2) of this section, the agreement is taken to be, for any related provision, an unsolicited consumer agreement terminated in accordance with the termination period provision. `(4) In this section-- permitted hours provision means--- (a) the Australian Consumer Law (Queensland), section 73; or (b) the Australian Consumer Law (Queensland), section 170. Page 1

Fair Trading (Australian Consumer Law) Amendment Bill 2010 related provision means a section of the Australian Consumer Law (Queensland) that refers to an unsolicited consumer agreement terminated in accordance with section 82 of that law. termination period provision means the Australian Consumer Law (Queensland), section 82.'. 2 Clause 57 (Insertion of new pt 10) Page 79, line 6-- omit, insert-- `commencement. `123 Unfair contract terms `(1) The Australian Consumer Law (Queensland), chapter 2, part 2-3-- (a) applies to a contract entered into on or after the commencement; and (b) does not apply to a contract entered into before the commencement. `(2) Despite subsection (1)(b), if a contract entered into before the commencement is renewed on or after the commencement, the Australian Consumer Law (Queensland), chapter 2, part 2-3 applies to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that happens on or after the renewal day. `(3) Also, if a term of a contract entered into before the commencement is varied on or after the commencement, and subsection (2) has not already applied in relation to the contract, the Australian Consumer Law (Queensland), chapter 2, part 2-3 applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that happens on or after the variation day. `(4) If subsection (3) applies to a term of a contract, the Australian Consumer Law (Queensland), sections 23(2) and 27 apply to the contract.'.'. Page 2

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