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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Franchise Agreements Bill 2011
CONTENTS
Part 1 -- Preliminary matters
1. Short title 2
2. Commencement 2
3. Terms used 2
4. Terms used: WA franchise agreement. 3
5. Concurrent operation of laws of other places not
affected 4
6. Extra-territorial application 4
Part 2 -- Franchising Code of
Conduct (WA)
7. Commonwealth Code applies in WA 5
8. Franchising Code of Conduct (WA), interpretation
of 5
9. Contravening Franchising Code of Conduct (WA) 5
Part 3 -- Duties of people involved in
franchising
10. Duties are additional 6
11. Duty to act in good faith etc. 6
Part 4 -- Enforcement and remedies
12. Civil monetary penalties 7
13. Injunctions 8
14. Redress orders 9
15. Damages for harm due to contravention of this Act 10
256--1 page i
Franchise Agreements Bill 2011
Contents
Part 5 -- Annual Review
16. Small Business Development Corporation to report 11
page ii
Western Australia
LEGISLATIVE COUNCIL
(Introduced by Hon Ljiljanna Ravlich, MLC)
Franchise Agreements Bill 2011
A Bill for
An Act to regulate the conduct of people who are about to enter or
who are parties to franchise agreements and for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Franchise Agreements Bill 2011
Part 1 Preliminary matters
s. 1
1 Part 1 -- Preliminary matters
2 1. Short title
3 This is the Franchise Agreements Act 2011.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on the day after that day
9 3. Terms used
10 (1) If a term is given a meaning in the Franchising Code of Conduct
11 (WA), it has the same meaning in this Act, unless the contrary
12 intention appears.
13 (2) In this Act unless the contrary intention appears --
14 Commissioner has the meaning given to that term by section 6
15 of the Fair Trading Act 2010;
16 Commonwealth Code means the Franchising Code of Conduct
17 set out in the Schedule to the Trade Practices (Industry Codes -
18 Franchising) Regulations 1998 (Commonwealth) as in force
19 from time to time;
20 Franchising Code of Conduct (WA) means the provisions that
21 apply because of section 7;
22 renew, in relation to a current WA franchise agreement,
23 means --
24 (a) to renew or extend the current agreement, whether or not
25 for the first time and whether or not pursuant to a
26 written agreement by the franchisor to renew or extend
27 the current agreement, and irrespective of whether or not
28 there is a contractual right of renewal or extension, and
29 irrespective of any terms in the WA franchise agreement
30 to the contrary; or
page 2
Franchise Agreements Bill 2011
Preliminary matters Part 1
s. 4
1 (b) to enter into a new WA franchise agreement, whether or
2 not pursuant to a written agreement by the franchisor to
3 enter into a new agreement, and irrespective of whether
4 or not there is a contractual right to a new agreement,
5 and irrespective of any terms in the WA franchise
6 agreement to the contrary, under which --
7 (i) the franchisee under the current agreement is the
8 franchisee under the new agreement; and
9 (ii) the new agreement has effect when the current
10 agreement expires; and
11 (iii) the franchise business conducted under the
12 current agreement continues under the new
13 agreement;
14 WA franchise agreement has the meaning given by section 4.
15 4. Terms used: WA franchise agreement.
16 (1) A franchise agreement (as defined in the Franchising Code of
17 Conduct (WA)) is a WA franchise agreement for the purposes
18 of this Act if the agreement relates to the conduct of a franchise
19 business in, or substantially in, Western Australia.
20 (2) For the purposes of subsection (1), a franchise agreement is a
21 WA franchise agreement --
22 (a) whether it is entered into before or after this Act
23 commences; and
24 (b) whether it is entered into in or outside Western Australia
25 or the Commonwealth; and
26 (c) even if the law governing it is not the law of Western
27 Australia.
28 (3) This Bill does not apply to agreements which are excluded
29 under sections 5(3)(a) and (b) of the Commonwealth Code.
page 3
Franchise Agreements Bill 2011
Part 1 Preliminary matters
s. 5
1 5. Concurrent operation of laws of other places not affected
2 This Act is not intended to exclude or limit the concurrent
3 operation of any law of the Commonwealth, another State, a
4 Territory or a place outside the Commonwealth.
5 6. Extra-territorial application
6 This Act, so far as possible, applies to --
7 (a) acts, transactions and matters done, entered into or
8 occurring outside, or partly outside, Western Australia
9 or Australia in relation to WA franchise agreements; and
10 (b) acts, transactions and matters (wherever done, entered
11 into or occurring) that would, apart from the Act, be
12 subject to the law of the Commonwealth, another State,
13 a Territory or a place outside the Commonwealth.
page 4
Franchise Agreements Bill 2011
Franchising Code of Conduct (WA) Part 2
s. 7
1 Part 2 -- Franchising Code of Conduct (WA)
2 7. Commonwealth Code applies in WA
3 The provisions of the Commonwealth Code --
4 (a) apply as a law of Western Australia; and
5 (b) as so applying, may be referred to as the Franchising
6 Code of Conduct (WA).
7 8. Franchising Code of Conduct (WA), interpretation of
8 (1) The Acts Interpretation Act 1901 (Commonwealth) applies to
9 the Franchising Code of Conduct (WA).
10 (2) The Interpretation Act 1984 does not apply to the Franchising
11 Code of Conduct (WA).
12 9. Contravening Franchising Code of Conduct (WA)
13 (1) A person who propose to be or is a party to a WA franchise
14 agreement must not contravene the Franchising Code of
15 Conduct (WA).
16 (2) A contravention of subsection (1) is not an offence.
page 5
Franchise Agreements Bill 2011
Part 3 Duties of people involved in
s. 10
1 Part 3 -- Duties of people involved in franchising
2 10. Duties are additional
3 The duties under this Part are in addition to any duties under
4 this or any other law and in addition to any rights or obligations
5 under the WA franchise agreement and apply irrespective of any
6 terms in the WA franchise agreement to the contrary.
7 11. Duty to act in good faith etc.
8 (1) In this section --
9 act in good faith means to act fairly, honestly, reasonably and
10 cooperatively.
11 (2) A person who proposes to be or is a party to a WA franchise
12 agreement must act in good faith --
13 (a) in any dealing or negotiation in connection with --
14 (i) entering into or renewing the agreement; or
15 (ii) the agreement; or
16 (iii) resolving, or attempting to resolve, a dispute
17 relating to the agreement;
18 and
19 (b) when acting under the agreement.
20 (3) A contravention of subsection (2) is not an offence.
page 6
Franchise Agreements Bill 2011
Enforcement and Part 4
s. 12
1 Part 4 -- Enforcement and remedies
2 12. Civil monetary penalties
3 (1) If, on an application made by the Commissioner or any other
4 person, the Supreme Court or the District Court is satisfied on
5 the balance of probabilities that a person has, by any act or
6 omission, done any of the following --
7 (a) contravened this Act;
8 (b) attempted to contravene this Act;
9 (c) aided, abetted, counseled or procured a person to
10 contravene this Act;
11 (d) induced or attempted to induce a person, whether by
12 threats, promises or otherwise, to contravene this Act;
13 (e) been in any way, directly or indirectly, knowingly
14 concerned in, or party to, the contravention by another
15 person of this Act;
16 (f) conspired with others to contravene this Act,
17 the court may order the person to pay to the State a monetary
18 penalty for each act or omission.
19 (2) The court must not order the person to pay a monetary penalty
20 for an act or omission if, under the Competition and Consumer
21 Act 2010 (Commonwealth) or the Fair Trading Act 2010, the
22 person has been ordered to pay a pecuniary penalty for the act
23 or omission.
24 (3) The monetary penalty must be an amount that the court decides
25 is appropriate having regard to all relevant matters including but
26 not limited to these --
27 (a) the nature and extent of the act or omission concerned;
28 (b) any loss or damage suffered as a result of the act or
29 omission;
30 (c) the circumstances in which the act or omission occurred;
page 7
Franchise Agreements Bill 2011
Part 4 Enforcement and
s. 13
1 (d) whether the person ordered to pay the penalty has
2 previously been found by a court, in proceedings
3 relating to a contravention of this Act, the Fair Trading
4 Act 2010 or the Commonwealth Code, to have done any
5 similar act or made any similar omission.
6 (4) The monetary penalty ordered to be paid by a person must not
7 exceed --
8 (a) if the person is a body corporate, $100 000 for each act
9 or omission;
10 (b) if the person is not a body corporate, $10 000 for each
11 act or omission.
12 (5) An order made under this section is taken to be a monetary
13 judgment for the purposes of the Civil Judgments Enforcement
14 Act 2004 and the Commissioner, or a person authorised to do so
15 by the Treasurer, may take proceedings under that Act on behalf
16 of the State to enforce the order.
17 (6) Any money paid to the State under an order made under this
18 section must be credited to the Consolidated Account.
19 13. Injunctions
20 (1) The Commissioner or any other person may apply to the
21 Supreme Court for an injunction against a person who has, by
22 any act or omission, or would have by any proposed act or
23 omission, done any of the following --
24 (a) contravened this Act;
25 (b) attempted to contravene this Act;
26 (c) aided, abetted, counselled or procured a person to
27 contravene this Act;
28 (d) induced or attempted to induce a person, whether by
29 threats, promises or otherwise, to contravene this Act;
30 (e) been in any way, directly or indirectly, knowingly
31 concerned in, or party to, the contravention by another
32 person of this Act;
page 8
Franchise Agreements Bill 2011
Enforcement and Part 4
s. 14
1 (f) conspired with others to contravene this Act.
2 (2) If the Commissioner makes an application under subsection (1),
3 the court cannot require the applicant to give an undertaking as
4 to damages.
5 (3) On an application made under subsection (1), the court --
6 (a) may issue an interim injunction against the person
7 pending the determination of the application;
8 (b) if it is satisfied the person is or is not doing, or proposes
9 to do or not to do any act or omission described in that
10 subsection, may issue an injunction against the person;
11 (c) if the parties to the application consent, may issue an
12 injunction against the person without being so satisfied.
13 (4) The court may at any time amend or cancel an injunction or
14 interim injunction issued under this section.
15 14. Redress orders
16 (1) In this section --
17 redress order, in relation to loss or damage suffered by a
18 person, means any order a court considers will wholly or partly
19 compensate the person for the loss or damage or will prevent or
20 reduce the loss or damage, including but not limited to --
21 (a) an order described in the Competition and Consumer
22 Act 2010 (Commonwealth) section 87(2);
23 (b) a renewal order;
24 (c) any ancillary, consequential or interim order, including
25 but not limited to orders as to the preparation and
26 execution of documents;
27 renewal order means an order that the franchisor under a WA
28 franchise agreement (the old agreement) must renew the old
29 agreement for a period, and on such other terms, as the court
30 decides is just having regard to the terms of the old agreement.
page 9
Franchise Agreements Bill 2011
Part 4 Enforcement and
s. 15
1 (2) These persons may apply for a redress order --
2 (a) a person who has suffered, or is likely to suffer, loss or
3 damage as a result of an act or omission described in
4 section 12(1) or 13(1);
5 (b) the Commissioner on behalf of one of more such
6 persons with the written consent of each of them.
7 (3) An application for a redress order may be made in the course of
8 proceedings commenced under section 12 or 13.
9 (4) An application for a redress order cannot be made more than
10 6 years after the date on which the act or omission described in
11 section 12(1) or 13(1) occurs.
12 (5) If, on an application made under this section, the court is
13 satisfied a person has suffered, or is likely to suffer, loss or
14 damage as a result of an act or omission described in
15 section 12(1) or 13(1), the court may make a redress order
16 against any person who did the act or omission.
17 (6) The court may make a redress order whether or not it grants any
18 remedy under section 12 or 13.
19 15. Damages for harm due to contravention of this Act
20 A person who suffers loss or damage as a result of an act or
21 omission of another person that contravenes this Act has a cause
22 of action against that person for damages for the loss or damage.
page 10
Franchise Agreements Bill 2011
Annual Part 5
s. 16
1 Part 5 -- Annual Review
2 16. Small Business Development Corporation to report
3 (1) After the end of each financial year the Small Business
4 Development Corporation is to prepare a report which reviews
5 current issues, trends and key areas of concern in relation to the
6 state of franchising in Western Australia (annual report).
7 (2) The Small Business Development Corporation is to cause a
8 copy of its annual report to be laid before each House of
9 Parliament within 90 days after the end of a financial year.
10 (3) For the purpose of preparing its annual report, the Small
11 Business Development Corporation may make such inquiries
12 and collect such information as it thinks fit.
13 (4) Any information collected by the Small Business Development
14 Corporation under subsection (3) may only be used for the
15 purposes of preparing its annual report and the Small Business
16 Development Corporation Act 1983 applies to that information
17 as if the information had been collected under that Act.
18 (5) The Small Business Development Corporation shall not include
19 in any annual report information that:
20 (a) discloses the identity of any person; or
21 (b) might enable the identity of any such person to be
22 identified
23 unless the person has consented to that disclosure.
24
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