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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Small Business Commissioner
Bill 2011
A BILL FOR
An Act to establish the office of the Small Business Commissioner; to
provide for the powers and functions of the Commissioner; to make associated
amendments to the Fair
Trading Act 1987 and the Retail
and Commercial Leases Act 1995; and for other purposes.
Contents
1Short title
2Commencement
3Interpretation
4Small
Business Commissioner
5Functions
6Ministerial direction
7Terms and conditions
of appointment
8Deputy and Acting Commissioner
9Honesty
and accountability
10Staff etc
11Delegation
12Power
to require information
13Confidentiality
14Regulations
Schedule 1—Associated amendments and
transitional provisions
Part 1—Preliminary
1Amendment provisions
Part 2—Amendment of
Fair Trading Act 1987
2Amendment of long title
3Amendment of
section 3—Interpretation
4Insertion of
section 4B
4BAdministration of Act
5Substitution of
heading to Part 2
6Repeal of sections 6 and 7
7Amendment of section 8—Functions of
Commissioner for Consumer Affairs
8Amendment of
section 8A—Conciliation
9Amendment of
section 9—Co-operation
10Amendment of
section 10—Delegations
11Repeal of section 11
12Amendment of section 12—Annual
report
13Amendment of section 16—Meaning of
generic terms used in Australian Consumer Law
14Insertion of
Part 3A
Part 3A—Industry
codes
28DInterpretation
28EContravention of industry
codes
28FRegulations relating to
industry codes
15Amendment of
section 36—Offences
16Amendment of section 37—Powers of
District Court
17Amendment of
section 41—Advertisements must not state or imply approval of
consumer affairs authority
18Amendment of
section 42—Recreational services
19Amendment of
section 45A—Power of Minister to prohibit third-party trading
schemes
20Substitution of heading to
Part 7
21Insertion of Part 7
Division A1
Division A1—Interpretation
46Interpretation
22Substitution of
heading to Part 7 Division 1
23Redesignation of
section 76—Conduct of legal proceedings on behalf of
consumers
24Insertion of Part 7 Division 1A
heading and section 76
Division 1A—Authorised
officers
76Authorised
officers
25Amendment of section 78—Entry and
inspection
26Amendment of
section 80—Registration of deeds of assurance
27Amendment of
heading to Part 7 Division 3
28Insertion of Part 7
Division 3A
Division 3A—Civil
penalties and civil expiation notices for contravention of industry
codes
Subdivision 1—Interpretation
86AInterpretation
Subdivision 2—Civil
penalties
86BCivil
penalties
Subdivision 3—Civil expiation
notices
86CCertain civil
penalty contraventions may be expiated
86DCivil expiation
notices
86ELate
payment
86FEffect of
expiation
86GCommencement of proceedings if expiation fee not
paid
86HWithdrawal of
civil expiation notices
86IService of civil expiation notice or withdrawal
notice
29Redesignation of section 86A—Application
of Division
30Redesignation and amendment of
sections 91A and 91B
31Redesignation of sections 93, 93A
and 94
32Insertion of
section 96A
96AConfidentiality
96BDelegation by Minister responsible for
administration of Small Business Commissioner Act
33Amendment of
section 97—Regulations
Part 3—Amendment of
Retail and Commercial Leases Act 1995
34Amendment of
section 3—Interpretation
35Repeal of section 8
36Amendment of section 78—Annual
reports
Part 4—Transitional
provisions
37Provisions relating to Fair Trading
Act
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Small Business Commissioner
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
Commissioner means the person holding or acting in the office
of the Small Business Commissioner;
Deputy means the Deputy Small Business
Commissioner;
industry code has the same meaning as in Part 3A of the
Fair
Trading Act 1987 and includes a code whether or not prescribed for
the purposes of that Act or any other Act of the State or the
Commonwealth.
(1) There will be a Small Business Commissioner.
(2) The Commissioner will be appointed by the Governor and is an agency of
the Crown.
(1) The functions of
the Commissioner are—
(a) to receive and
investigate complaints by or on behalf of small businesses regarding their
commercial dealings with other businesses and to facilitate resolution of such
complaints through measures considered appropriate by the Commissioner such as
mediation or making representations on behalf of small businesses; and
(b) to assist small businesses on request in their dealings with State and
local government bodies; and
(c) to disseminate information to small businesses to assist them in
making decisions relevant to their commercial dealings with other businesses and
their dealings with State and local government bodies; and
(d) to administer Part 3A (Industry codes) of the Fair
Trading Act 1987 and the Australian Consumer Law (SA) to the
extent that responsibility for that administration is assigned to the
Commissioner under the Fair
Trading Act 1987; and
(e) to monitor, investigate and advise the Minister about—
(i) non-compliance with industry codes that may adversely affect small
businesses; and
(ii) market practices that may adversely affect small businesses;
and
(f) to report to the Minister on matters affecting small businesses at the
request of the Minister; and
(g) to report to the Minister on any aspect of the Commissioner's
functions at the request of the Minister or on the Commissioner's own
initiative; and
(h) to take any
other action considered appropriate by the Commissioner for the purpose of
facilitating and encouraging the fair treatment of small businesses in their
commercial dealings with other businesses or assisting small businesses in their
dealings with State or local government bodies; and
(i) any other functions conferred on the Commissioner by or under this or
any other Act.
(2) The Commissioner is to perform the functions with a view to the
development and maintenance in South Australia of relationships between small
businesses and other businesses, and small businesses and State and local
government bodies, that are based on dealings conducted fairly and in good
faith.
(1) Subject to this section, the Minister may give directions to the
Commissioner.
(2) The Minister—
(a) may not give a direction in relation to the investigation, mediation
or resolution of a particular complaint or dispute; and
(b) must consult with the Commissioner before giving a
direction.
(3) A Ministerial direction to the Commissioner—
(a) must be communicated to the Commissioner in writing; and
(b) must be included in the annual report of the Commissioner under the
Public
Sector Act 2009.
7—Terms
and conditions of appointment
(1) The Commissioner will be appointed for a term not exceeding
5 years and on conditions determined by the Governor and, at the end of a
term of appointment, will be eligible for reappointment.
(2) The appointment of the Commissioner may be terminated by the Governor
on the ground that the Commissioner—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment;
or
(c) has become bankrupt or has applied to take the benefit of a law for
the relief of insolvent debtors; or
(d) has been disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth;
or
(e) has, because of mental or physical incapacity, failed to carry out
duties of the position satisfactorily; or
(f) is incompetent or has neglected the duties of the position.
(3) The appointment of the Commissioner is terminated if the
Commissioner—
(a) becomes a member, or a candidate for election as a member, of the
Parliament of the State or the Commonwealth or a Legislative Assembly of a
Territory of the Commonwealth; or
(b) is sentenced to imprisonment for an offence.
(4) The Commissioner may resign by notice in writing to the Minister of
not less than 3 months (or such shorter period as is accepted by the
Minister).
8—Deputy
and Acting Commissioner
(1) The Minister may appoint a person (who may be a Public Service
employee) to be the Deputy Small Business Commissioner.
(2) The Deputy may—
(a) act as the Commissioner during any period for which—
(i) no person is for the time being appointed as the Commissioner;
or
(ii) the Commissioner is absent from, or unable to discharge, official
duties; and
(b) when not so acting, perform functions or exercise powers of the
Commissioner by delegation from the Commissioner.
(3) The Minister may appoint a person (who may be a Public Service
employee) to act as the Commissioner during any period for
which—
(a) no person is for the time being appointed as the Commissioner or the
Commissioner is absent from, or unable to discharge, official duties;
and
(b) no person is for the time being appointed as the Deputy or the Deputy
is absent from, or unable to discharge, official duties.
(4) The terms and conditions of appointment of the Deputy or other person
appointed to act as the Commissioner will be determined by the
Minister.
The Commissioner, the Deputy and any other person appointed to act as the
Commissioner are senior officials for the purposes of the Public
Sector (Honesty and Accountability) Act 1995.
(1) The Commissioner's staff consists of—
(a) Public Service employees assigned to assist the Commissioner;
and
(b) persons employed by the Commissioner, with the consent of the Minister
and on terms and conditions determined by the Minister, to assist the
Commissioner.
(2) The Commissioner may, under an arrangement established by the Minister
administering an administrative unit of the Public Service, make use of the
services or staff of that administrative unit.
(1) The Commissioner may delegate to a person (including a person for the
time being performing particular duties or holding or acting in a particular
position) a function or power under this or any other Act (except a prescribed
function or power).
(2) A function or power may only be delegated to a person who is not a
Public Service employee with the consent of the Minister.
(3) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter;
and
(d) is revocable at will.
(4) A delegated function or power may, if the instrument of delegation so
provides, be further delegated in accordance with that instrument.
12—Power
to require information
(1) The Commissioner may, by written notice served personally or by post,
require a person to give the Commissioner, within a reasonable time specified in
the notice, information in the person's possession that the Commissioner
requires for the performance of the Commissioner's functions under this
Act.
(2) A person required to give information under this section must provide
the information within the time stated in the notice.
Maximum penalty: $20 000.
(3) A person cannot be compelled to give information under this section if
the information might tend to incriminate the person of an offence or is
privileged on the ground of legal professional privilege.
(1) A person must not divulge or communicate personal information,
information relating to trade secrets or business processes or financial
information acquired by reason of being, or having been, employed or engaged in,
or in connection with, the administration of this Act, except—
(a) with the consent of the person to whom the information relates;
or
(b) as authorised by the Commissioner or the person's employer;
or
(c) in connection with the administration of this Act; or
(d) to a police officer or a member of the police force of another State,
a Territory of the Commonwealth or the Commonwealth; or
(e) to a person concerned in the administration of another law of the
State, or a law of another State, a Territory of the Commonwealth or the
Commonwealth, relating to trade or commercial practices or the protection of
consumers; or
(f) for the purposes of legal proceedings.
Maximum penalty: $20 000.
(2) Information that has been disclosed under this section for a
particular purpose must not be used for any other purpose by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $20 000.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1), the
regulations may fix fees in respect of measures designed to resolve a complaint
taken by the Commissioner and provide for their payment, recovery or
waiver.
Schedule 1—Associated
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Fair Trading
Act 1987
Long title—delete the long title and substitute:
An Act to provide for the appointment and functions of the Commissioner for
Consumer Affairs; to provide for the administration of certain aspects of the
Act by the Small Business Commissioner; to apply the Australian Consumer Law as
a law of South Australia; to make provision for industry codes; to otherwise
regulate unfair or undesirable practices affecting business and other consumers;
and for other purposes.
3—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of authorised
officer—delete "section 7" and substitute:
Part 7 Division 1A
(2) Section 3(1), definition of
Commissioner—delete the definition and substitute:
Commissioner for Consumer Affairs means the person holding or
acting in the office of Commissioner for Consumer Affairs;
(3) Section 3(1), definition of consumer affairs
authority—delete "Commissioner" wherever occurring and substitute
in each case:
Commissioner for Consumer Affairs
(4) Section 3(1)—after the definition of consumer affairs
authority insert:
contravene includes fail to comply;
(5) Section 3(1), definition of related Act,
(a)—delete "Commissioner" and substitute:
Commissioner for Consumer Affairs or the Small Business
Commissioner
(6) Section 3(1)—after the definition of related
Act insert:
Small Business Commissioner means the person holding or
acting in the office of Small Business Commissioner;
(7) Section 3(3)—after "Act" insert:
or a specified provision of this Act
After section 4A insert:
4B—Administration of Act
(1) Subject to this section, the Commissioner for Consumer Affairs is
responsible for the administration of this Act (including the Australian
Consumer Law (SA)).
(2) The Small Business
Commissioner is responsible for the administration of—
(a) the Australian Consumer Law (SA) to the extent specified
by the Minister by notice in the Gazette made on the recommendation of the
Minister responsible for the administration of the Small
Business Commissioner Act 2011; and
(b) Part 3A in relation to an industry code or provisions of an
industry code if the regulations prescribing the code or provisions for the
purposes of that Part declare that the Commissioner is to have that
responsibility.
(3) However, the Small Business Commissioner may only be assigned
responsibility for administration of the Australian Consumer
Law (SA) or Part 3A in relation to an industry code or provisions
of an industry code insofar as the Law, code or provisions apply to persons who
acquire or propose to acquire goods or services for the purpose of trade or
commerce or regulate the conduct of traders towards other traders.
(4) To the extent that the Commissioner for Consumer Affairs is
responsible for the administration of this Act, the Commissioner is subject to
direction by the Minister.
(5) To the extent that the Small Business Commissioner is responsible for
the administration of this Act, the Commissioner is subject to direction by the
Minister responsible for the administration of the Small
Business Commissioner Act 2011 in accordance with
section 6 of that Act.
5—Substitution
of heading to Part 2
Heading to Part 2—delete the heading and substitute:
Part 2—Commissioner for Consumer
Affairs
Sections 6 and 7—delete the sections
7—Amendment
of section 8—Functions of Commissioner for Consumer
Affairs
Section 8(1)—delete "Commissioner" first occurring and
substitute:
Commissioner for Consumer Affairs
8—Amendment
of section 8A—Conciliation
Section 8A(1)—delete "Commissioner" and substitute:
Commissioner for Consumer Affairs
9—Amendment
of section 9—Co-operation
Section 9—delete "Commissioner" and substitute:
Commissioner for Consumer Affairs
10—Amendment
of section 10—Delegations
Section 10(1)—delete "Commissioner" and substitute:
Commissioner for Consumer Affairs
Section 11—delete the section
12—Amendment
of section 12—Annual report
(1) Section 12(1)—delete "Commissioner" and
substitute:
Commissioner for Consumer Affairs
(2) Section 12(1)—after "Act" insert:
by the Commissioner
13—Amendment
of section 16—Meaning of generic terms used in Australian Consumer
Law
Section 16, definition of regulator—delete the
definition and substitute:
regulator means—
(a) the Commissioner for Consumer Affairs; or
(b) the Small Business Commissioner (but only if the Small Business
Commissioner is responsible for the administration of any aspect of the
Australian Consumer Law (SA)).
After Part 3 insert:
Part 3A—Industry codes
28D—Interpretation
In this Part—
industry code means a code regulating the conduct of
participants in an industry towards other participants in the industry or
towards persons to whom goods or services are or may be supplied by participants
in the industry.
28E—Contravention of industry
codes
A person must not, in trade or commerce, contravene a prescribed industry
code or a prescribed provision of an industry code.
28F—Regulations relating to industry
codes
(1) The regulations may—
(a) prescribe an
industry code, or provisions of an industry code, for the purposes of this Part
and declare (subject to section 4B(3)) whether the Commissioner for
Consumer Affairs or the Small Business Commissioner is to be responsible for the
administration of this Part in relation to the code or provisions; and
(b) declare that a contravention of section 28E of a particular class
(constituted of a contravention of the whole or any specified part of a
prescribed industry code or prescribed provisions of an industry code) is to be
subject to a civil penalty under Part 7 Division 3A; and
(c) fix expiation fees (not exceeding $6 000 in the case of a body
corporate and $1 200 in the case of a natural person) for alleged civil
penalty contraventions within the meaning of Part 7 Division 3A;
and
(d) declare that a specified activity is to be taken to be an industry for
the purposes of this Part and that persons of a specified class are to be taken
to be participants in the industry.
(2) A proposal for regulations prescribing an industry code or provisions
of an industry code under this section may be initiated by—
(a) if the Commissioner for Consumer Affairs is to be responsible for the
administration of this Part in relation to the code or provisions—the
Minister responsible for the administration of this Act; and
(b) if the Small Business Commissioner is to be responsible for the
administration of this Part in relation to the code or provisions—the
Minister responsible for the administration of the Small
Business Commissioner Act 2011.
(3) For the purposes of the Subordinate
Legislation Act 1978, the Minister responsible for the
administration of the Small
Business Commissioner Act 2011 is to be taken to be the Minister
responsible for the administration of this Act in respect of regulations that
declare the Small Business Commissioner to be responsible for the administration
of this Part in relation to an industry code or provisions of an industry
code.
15—Amendment
of section 36—Offences
Section 36(a) and (b)—delete ", or fails to comply with,"
wherever occurring
16—Amendment
of section 37—Powers of District Court
(1) Section 37(1)—delete "upon the application of the
Commissioner" and substitute:
on the application of the Commissioner for Consumer Affairs
(2) Section 37(2)—delete "Commissioner" and
substitute:
Commissioner for Consumer Affairs
(3) Section 37(4)—delete ", or fails to comply with,"
17—Amendment
of section 41—Advertisements must not state or imply approval of
consumer affairs authority
Section 41—delete "Commissioner" and substitute:
Commissioner for Consumer Affairs
18—Amendment
of section 42—Recreational services
Section 42(6)—delete "Commissioner" first occurring and
substitute:
Commissioner for Consumer Affairs
19—Amendment
of section 45A—Power of Minister to prohibit third-party trading
schemes
(1) Section 45A(1)—delete "Commissioner" first occurring and
substitute:
Commissioner for Consumer Affairs
(2) Section 45A(1)(b)—delete "or not complied with"
(3) Section 45A(2)—delete "Commissioner" and
substitute:
Commissioner for Consumer Affairs
20—Substitution
of heading to Part 7
Heading to Part 7—delete the heading and substitute:
Part 7—Enforcement and
remedies
21—Insertion
of Part 7 Division A1
Part 7—before Division 1 insert:
Division A1—Interpretation
46—Interpretation
In this Part, unless the contrary intention appears—
Commissioner means—
(a) the Commissioner for Consumer Affairs; or
(b) the Small Business Commissioner;
Minister means—
(a) the Minister responsible for the administration of this Act;
or
(b) the Minister responsible for the administration of the Small
Business Commissioner Act 2011.
22—Substitution
of heading to Part 7 Division 1
Heading to Part 7 Division 1—delete the heading and
substitute:
Division 1—Legal proceedings and
warnings
23—Redesignation
of section 76—Conduct of legal proceedings on behalf of
consumers
Section 76—redesignate the section as section 47
24—Insertion
of Part 7 Division 1A heading and section 76
Before section 77 insert:
Division 1A—Authorised
officers
76—Authorised officers
(1) The following persons are authorised officers for the purposes of this
Act:
(a) the Commissioner for Consumer Affairs;
(b) the Small Business Commissioner;
(c) the Deputy Small Business Commissioner;
(d) persons appointed under this section.
(2) The Minister responsible for the administration of this Act may, on
the recommendation of the Commissioner for Consumer Affairs, appoint Public
Service employees to be authorised officers for the purposes of this
Act.
(3) The Minister responsible for the administration of the Small
Business Commissioner Act 2011 may, on the recommendation of the
Small Business Commissioner, appoint Public Service employees or persons
employed by the Commissioner to be authorised officers for the purposes of this
Act.
(4) An appointment may be made subject to conditions specified in the
instrument of appointment.
(5) The relevant
Minister may, at any time, revoke an appointment of an authorised officer or
vary or revoke a condition of appointment or impose a further condition of
appointment.
(6) An authorised officer must be issued with an identity
card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an authorised officer under this
Act.
(7) If the powers of an authorised officer have been limited by
conditions, the identity card issued to the authorised officer must indicate
those limitations.
(8) An authorised officer must, at the request of a person in relation to
whom the authorised officer intends to exercise powers under this Act, produce
for the inspection of the person his or her identity card.
25—Amendment
of section 78—Entry and inspection
Section 78(4)—delete subsection (4)
26—Amendment
of section 80—Registration of deeds of assurance
Section 80(1)—after "assurances" insert:
accepted by the Commissioner
27—Amendment
of heading to Part 7 Division 3
Heading to Part 7 Division 3—delete "for contravention of
this Act"
28—Insertion
of Part 7 Division 3A
Part 7—after Division 3 insert:
Division 3A—Civil penalties and civil
expiation notices for contravention of industry codes
Subdivision 1—Interpretation
86A—Interpretation
For the purposes of this Division, a person commits a civil penalty
contravention if the person—
(a) contravenes section 28E and the contravention is of a class
declared by regulation to be subject to a civil penalty; or
(b) attempts such a contravention; or
(c) is involved in such a contravention.
Subdivision 2—Civil
penalties
86B—Civil penalties
(1) If the
Magistrates Court is satisfied that a person has committed a civil penalty
contravention, the Court may make an order (a civil penalty order)
that the person pay to the Commissioner an amount as a civil penalty not
exceeding—
(a) in the case of a body corporate—$50 000; and
(b) in the case of a natural person—$10 000.
(2) Proceedings for a civil penalty order may be commenced by the
Commissioner by application to the Court made within 3 years after the date
of the alleged civil penalty contravention.
(3) In determining the amount to be paid by a person as a civil penalty,
the Court must have regard to—
(a) the nature and extent of the contravention and any loss or damage
suffered as a result of the contravention; and
(b) the circumstances in which the contravention was committed;
and
(c) any financial saving or other benefit that the person stood to gain by
committing the contravention; and
(d) whether the person has previously been found by a court in proceedings
under this Act to have committed similar contraventions; and
(e) any other matter it considers relevant.
(4) If conduct constitutes 2 or more civil penalty
contraventions—
(a) an amount may be recovered from the person under this section in
relation to any 1 or more of the contraventions; but
(b) the person is not liable to pay more than 1 amount as a civil
penalty in respect of the same conduct.
(5) If, in proceedings for a civil penalty order against a person, the
person establishes facts and circumstances that would have amounted to a defence
under section 88 had the civil penalty contravention constituted an offence
against this Act, the person is not liable to a civil penalty.
(6) If, in proceedings for a civil penalty order against a natural person,
the Court is satisfied that the person acted honestly and reasonably and, having
regard to all the circumstances of the case, ought fairly to be excused, the
Court may relieve the person either wholly or partly from liability to a civil
penalty.
(7) The Court may, in proceedings for a civil penalty order, make such
orders in relation to the costs of the proceedings as it thinks just and
reasonable.
Subdivision 3—Civil expiation
notices
86C—Certain civil penalty contraventions may be
expiated
If an expiation fee is fixed by the regulations for a civil penalty
contravention, a civil expiation notice may be given to a person alleged to have
committed the contravention and the alleged contravention may be expiated in
accordance with this Subdivision.
86D—Civil expiation notices
(1) A civil expiation notice may only be given by the Commissioner or by
an authorised officer who is authorised in writing by the Commissioner to give
civil expiation notices for the alleged civil penalty contravention.
(2) A civil expiation notice—
(a) may relate to up to 3 alleged civil penalty contraventions
arising out of the same incident (that is, if they are committed
contemporaneously, or in succession, 1 following immediately on another);
and
(b) cannot be given after the expiry of the period of 12 months from
the date on which the civil penalty contravention or contraventions were alleged
to have been committed; and
(c) cannot be given to a person if proceedings have been commenced against
the person for a civil penalty order for the alleged civil penalty contravention
or contraventions.
(3) If a civil expiation notice is given to a person alleged to have
committed a civil penalty contravention, no further civil expiation notice can
be given to that person in respect of any other alleged civil penalty
contravention arising out of the same incident.
(4) A civil expiation notice must—
(a) be identified by a unique number; and
(b) state the date of the notice; and
(c) state the name and address of the person to whom it is given;
and
(d) state that the notice is given on behalf of the Commissioner;
and
(e) state how the Commissioner may be contacted; and
(f) give details of the civil penalty contravention or contraventions
allegedly committed by the person, including the date of the alleged
contravention or contraventions; and
(g) state the maximum civil penalty that the person could be ordered to
pay in respect of the alleged civil penalty contravention or contraventions;
and
(h) specify the expiation fee that is payable in relation to the alleged
civil penalty contravention or each alleged contravention; and
(i) state that the expiation fee is to be paid within 28 days from
(and including) the date of the notice; and
(j) state that the expiation fee is payable to the Commissioner;
and
(k) explain how payment of the expiation fee is to be made; and
(l) include any information prescribed by the regulations.
86E—Late payment
The Commissioner may accept late payment of an expiation fee at any time
before proceedings are commenced for a civil penalty order for the alleged civil
penalty contravention to which the payment relates.
86F—Effect of expiation
(1) Subject to this Subdivision, if a civil penalty contravention, or
contraventions, to which a civil expiation notice relates are expiated in
accordance with this Subdivision, proceedings may not be commenced for a civil
penalty order against the person to whom the notice was given for that
contravention or those contraventions or any other expiable civil penalty
contravention arising out of the same incident.
(2) The expiation of a civil penalty contravention—
(a) does not constitute an admission of guilt or of any civil liability;
and
(b) will not be regarded as evidence tending to establish guilt or any
civil liability; and
(c) cannot be referred to in a report furnished to a court for the
purposes of determining sentence for an offence.
86G—Commencement of proceedings if expiation fee
not paid
(1) If a civil expiation notice relating to only 1 civil penalty
contravention is given to a person and the contravention is not expiated in
accordance with this Subdivision, proceedings may be commenced for a civil
penalty order against the person for the contravention.
(2) If a civil expiation notice relating to more than 1 civil penalty
contravention is given to a person and 1 or more of those contraventions
are expiated in accordance with this Subdivision but not all of them,
proceedings may be commenced for a civil penalty order against the person for
any contravention that is not expiated.
86H—Withdrawal of civil expiation
notices
(1) The
Commissioner may withdraw a civil expiation notice with respect to all or any of
the alleged civil penalty contraventions to which the notice relates
if—
(a) the Commissioner is of the opinion that the person to whom the notice
was given did not commit the contravention or contraventions or that the notice
should not have been given for the contravention or contraventions; or
(b) the notice is defective; or
(c) the Commissioner decides that proceedings should be commenced for a
civil penalty order against the person for the contravention or
contraventions.
(2) A civil expiation notice may be withdrawn under
subsection (1)
despite payment of an expiation fee, but in that event the amount paid must be
refunded.
(3) However, a civil expiation notice cannot be withdrawn for the purposes
of commencing proceedings for a civil penalty order for a civil penalty
contravention if an expiation fee has been paid for the contravention and the
period of 60 days from the date of the notice has expired.
(4) If a civil expiation notice is withdrawn under
subsection (1)
despite payment of an expiation fee, proceedings for a civil penalty order for a
civil penalty contravention to which the notice related may be commenced, but
the fact that the person to whom the notice was given paid an expiation fee is
not admissible in those proceedings as evidence against the person.
(5) The
Commissioner must withdraw a civil expiation notice if it becomes apparent that
the person to whom the notice was given did not receive the notice until after
the period for payment of the expiation fee, or has never received it, as a
result of error on the part of the Commissioner or failure of the postal
system.
(6) However, a civil expiation notice cannot be withdrawn under
subsection (5)
if the expiation fee has been paid or proceedings have been commenced for a
civil penalty order against the person to whom the notice was given.
(7) A notice of withdrawal must specify the reason for withdrawal and
include any information required by the regulations.
(8) If a civil
expiation notice is withdrawn by the Commissioner in respect of an alleged civil
penalty contravention and the notice of withdrawal does not specify that the
notice is withdrawn for the purposes of commencing proceedings for a civil
penalty order against the person, proceedings cannot be commenced for a civil
penalty order for the contravention unless the person has been given a fresh
civil expiation notice and allowed the opportunity to expiate the
contravention.
86I—Service of civil expiation notice or withdrawal
notice
(1) A civil
expiation notice, or a notice of withdrawal of a civil expiation notice, may be
given to a person—
(a) by delivering it personally to the person or an agent of the person;
or
(b) by leaving it for the person at the person's place of residence or
business with someone apparently over the age of 16 years; or
(c) by posting it to the person or agent of the person at the person's or
agent's last known place of residence or business.
(2) Without limiting
subsection (1),
a civil expiation notice, or a notice of withdrawal of a civil expiation notice,
may be given to a company or registered body within the meaning of the
Corporations Act 2001 of the Commonwealth in accordance with that
Act.
29—Redesignation
of section 86A—Application of Division
Section 86A—redesignate the section as
section 86J
30—Redesignation
and amendment of sections 91A and 91B
(1) Section 91A(1)—after paragraph (c) insert:
(ca) conduct that the Commissioner has reasonable grounds to suspect may
constitute a civil penalty contravention for the purposes of Division 3A
that has resulted in or is likely to result in 1 or more persons suffering
detriment;
(2) Section 91B—delete "section 91A" and
substitute:
section 48
(3) Sections 91A
and 91B (as amended)—redesignate the sections as sections 48
and 49 respectively and relocate them so that they follow
section 47
31—Redesignation
of sections 93, 93A and 94
Sections 93, 93A and 94—redesignate the sections as
sections 78D, 78E and 78F respectively and relocate them so that they
follow section 78C
After section 96 insert:
96A—Confidentiality
(1) A person must not divulge or communicate personal information,
information relating to trade secrets or business processes or financial
information acquired by reason of being, or having been, employed or engaged in,
or in connection with, the administration of this Act or a related Act,
except—
(a) with the consent of the person to whom the information relates;
or
(b) as authorised by the Commissioner for Consumer Affairs or the Small
Business Commissioner or the person's employer; or
(c) in connection with the administration of this Act or a related Act;
or
(d) to a police officer or a member of the police force of another State,
a Territory of the Commonwealth or the Commonwealth; or
(e) to a person concerned in the administration of another law of the
State, or a law of another State, a Territory of the Commonwealth or the
Commonwealth, relating to trade or commercial practices or the protection of
consumers; or
(f) for the purposes of legal proceedings.
Maximum penalty: $20 000.
(2) Information that has been disclosed under this section for a
particular purpose must not be used for any other purpose by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $20 000.
96B—Delegation by Minister responsible for
administration of Small Business Commissioner Act
(1) The Minister responsible for the administration of the Small
Business Commissioner Act 2011 may delegate to a person (including
a person for the time being performing particular duties or holding or acting in
a particular position) a function or power under this Act (except a prescribed
function or power).
(2) A delegation—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the delegator to act in a matter;
and
(d) is revocable at will.
(3) A delegated function or power may, if the instrument of delegation so
provides, be further delegated in accordance with that instrument.
33—Amendment
of section 97—Regulations
(1) Section 97(2)—after paragraph (b) insert:
(ba) fix fees in respect of any matter under this Act and provide for
their payment, recovery or waiver; and
(2) Section 97(2)(e)—delete paragraph (e)
(3) Section 97(2)(h)—delete paragraph (h) and
substitute:
(h) without derogating from the power to fix expiation fees under
section 28F, fix expiation fees for an alleged offence against this Act or
the regulations, not exceeding—
(i) in the case of an offence against this Act—$1 200;
and
(ii) in the case of an offence against the regulations—$210;
and
(4) Section 97(2)(i)—delete ", or failure to comply
with,"
(5) Section 97—after subsection (3) insert:
(3a) If a document formulated or published by any body or authority as in
force at a particular time or from time to time is incorporated, adopted,
applied or referred to in the regulations—
(a) a copy of the document must be kept available for public inspection,
without charge and during ordinary office hours, at an office or offices
specified in the regulations; and
(b) evidence of the contents of the document may be given in any legal
proceedings by production of a document apparently certified by the Minister or
the Minister responsible for the administration of the Small
Business Commissioner Act 2011 to be a true copy of the
document.
Part 3—Amendment of Retail and Commercial
Leases Act 1995
34—Amendment
of section 3—Interpretation
Section 3(1), definition of Commissioner—delete
"Commissioner for Consumer Affairs" and substitute:
the person holding or acting in the office of Small Business
Commissioner
Section 8—delete the section
36—Amendment
of section 78—Annual reports
(1) Section 78(1)—delete "for Consumer Affairs"
(2) Section 78(1) and (2)—delete "31 October" wherever
occurring and substitute in each case:
30 September
Part 4—Transitional
provisions
37—Provisions
relating to Fair Trading Act
(1) A person holding office as an authorised officer under section 7
of the Fair
Trading Act 1987 immediately before the commencement of this clause
will continue to hold office as an authorised officer as if the person had been
appointed by the Minister responsible for the administration of that Act under
section 76 of that Act as amended by this Act.
(2) A code of practice prescribed by the regulations under the Fair
Trading Act 1987 as in force immediately before the commencement of
this clause will be taken to have been prescribed as an industry code under
Part 3A of that Act as amended by this Act and the Commissioner for
Consumer Affairs will be taken to have been declared to be responsible for the
administration of the code.