Legislative Council Fifty-Second Parliament, First Session (52-1) 52 1 Parliament of South Australia Legislative Council published Bills Statutes Amendment and Repeal (Australian Consumer Law) Bill STATUTES AMENDMENT AND REPEAL (AUSTRALIAN CONSUMER LAW) BILL Second Reading Second Reading Adjourned debate on second reading. (Continued from 29 October 2010.) The Hon. J.M.A. LENSINK Legislative Council The Hon. J.M.A. LENSINK (16:29): I speak in support of this legislation, which has had quite a long gestation, but I think for good reason. The initiator of the review of our consumer laws was the Hon. Peter Costello as Treasurer, who sought a review by the Productivity Commission, which then fed into the Ministerial Council on Consumer Affairs and COAG agreements, which have been signed off. The Productivity Commission occurred in the time period of 2007-08, and in the ensuing years the MCCA and COAG have, as I stated, signed various agreements and come up with a package of amendments to all our jurisdictions which will see us adopt the commonwealth's Australian Consumer Law Act into our legislation. We have been served well through our range of consumer laws over the years, but I think that it is fair to say that, when there are multiple jurisdictions that have similar laws, it is difficult for consumers to understand what their rights are in each jurisdiction, and particularly for business costs, where businesses that operate across various states and territories need to be aware of what all the different nuances of each legislation may be. The Australian Consumer Law was passed through the federal parliament this year, and I note that the second bill was referred to a Senate committee, the Senate's Economic Legislation Committee and the comments at the time were that that particular bill may have been rushed. So, I commend the Senate committee for its work; the report that it has provided is quite extensive. It was tabled in May of this year, and it outlines a large number of submissions that were provided by organisations that we would expect to hear from in South Australia, such as the Motor Trade Association, various consumer groups, retailers and the like, as well as Choice Australia, to enable it to inform itself about what amendments may have been required to the bill. Particularly through the work of some of the coalition senators, some amendments or recommendations were incorporated into the final bill. The first is that the definition of consumer should allow for a class of consumers that would encompass small business, which is effectively a continuing exemption for transactions of less than $40,000. Secondly, the existing exemption from the Trade Practices Act for the professions of architects and engineers is being retained. Thirdly, there was an issue in relation to a risk-based safety system rather than an incident-based safety system being adopted. That recommendation was not accepted in its entirety. The fourth is to provide a means for specific industries such as the automobile industry to be exempt from incident reporting, because they already have their own regimes. Fifthly, the definition of an unsolicited consumer agreement should be expanded to include circumstances where consumers are contacted through indirect means. That provides some of the background to that bill. I would also like to refer to some of the speeches as the bill passed through the federal parliament. Indeed, I think the ministerial council may also be required to further examine some areas for future reforms. In particular, Mr Bruce Billson MP, the member for Dunkley, mentioned that he thought it was very unfair that the unfair contracts provision did not apply to small business. He also talked about new technologies and in particular the impact of some of these laws on an organisation like eBay, where I think the laws may need to try and catch up with future technology. The amendments to what will become our regime in South Australia include covering unfair contract terms in standard form contracts. The new laws will guarantee consumer rights when buying goods and services, replacing existing laws on conditions and warranties. There is a great deal of simplification of language and processes for remedies. There are amendments to product safety law and enforcement systems which will become much more rapid and effective and I think that is to be highly commended. There are national laws for unsolicited consumer agreements for door-to-door sales and other direct marketing, simpler rules for lay-by agreements, which is the completely new part of these provisions, enforcement penalty powers and consumer redress options which are based on the Trade Practices Act. So, with those brief comments, I note that I did not read every clause of the federal act as it is very, very extensive and would be a cure for insomnia, I think, but I did come across an excellent publication produced by the commonwealth Attorney-General's office called Australian Consumer Law, which is dated July 2010 and is easy to download. It provides a very good summary of the new provisions. Indeed, we joked with some of our esteemed colleagues in the House of Assembly that it had some pictures in it which would enable them to be able to understand the legislation a little more easily. With those comments, I commend the bill to the house and look forward to further reforms in the future as they may be required and encourage other members to support the bill. The Hon. S.G. WADE Legislative Council The Hon. S.G. WADE (16:36): I rise briefly, not at all to demur from the policy considerations that have been brought to the attention of the house by the Hon. Michelle Lensink, but to draw the house's attention to the fact that this is another bill that proposes that a national law be imposed. The house will remember that earlier this year, in the context of the health practitioner legislation, we considered national law and how it might be appropriately applied in relation to the health area. We are now being asked to consider a bill which poses the question: is a national law, and the way it is being applied in this bill, appropriate? In the context of the health legislation, the opposition highlighted that we believe that we need to be diligent legislators and look at each case on its merits. We did not say that any particular model should be uniformly applied to national law cases. I just wanted to, if you like, keep on the council's radar the need for us as legislators to consider each case on its merits. Obviously, there are a range of factors that need to be considered, for example, which jurisdictions have constitutional authority and accountability, whether it is an appropriate balance of commonwealth and state powers, whether the bill makes the law accessible to the community and whether there is an appropriate balance between the executive and the parliament. I am sure there are a range of other factors. These sorts of considerations do not lend themselves to a formulaic approach. The opposition is not suggesting that but we are committed to considering each national law proposal on its merits. Having considered this consumer law and having had the benefit of parliamentary counsel's advice specifically on this matter, I believe that the method of a national law application in this context is appropriate, so we support not only the policy but also the mode. The Hon. G.E. GAGO Legislative Council Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for the City of Adelaide The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for the City of Adelaide) (16:38): I thank honourable members for their second reading contributions and their support for this important piece of legislation. This bill gives effect to one of the most significant national reforms of Australia's consumer protection laws. In passing this bill, South Australia will join with other states and territories in providing consumers the benefit of a nationally consistent consumer protection framework. The Australian Consumer Law will also add significant new consumer protections as well, including provisions drawn from best practice and from provisions drawn from existing state and territory jurisdictions, in looking at their protection and fair trading laws. This bill, if successful, will be a real win-win for both businesses and consumers. In terms of businesses it allows us to move more closely towards a seamless national economy and, obviously, it goes towards reducing regulation and complexity; it improves efficiencies for consumers and it will provide a new set of consistent national rights wherever goods or services are purchased or provided throughout the nation. I commend this bill to the house and look forward to the committee stage. Bill read a second time. Committee Stage Committee Stage In committee. Clauses 1 to 25 passed. Clause 26. The Hon. G.E. GAGO Legislative Council The Hon. G.E. GAGO: I move: Page 19, line 24 [Clause 26, inserted section 86A]—After 'This Division' insert: (other than section 91). This is quite a simple technical amendment, with the effect of ensuring that Division 4 of Part 2 of the FTA does not apply to ACL matters. This is necessary because, otherwise, we would have the FTA and the ACL provisions doing the same thing in different ways. For example, section 87 of the FTA, which is in Division 4, sets out the time limit within which a prosecution must take place under the FTA. The ACL itself already includes specific provision about time limits for prosecutions because we want the ACL time limits to apply in South Australia. The bill makes sure that section 87 and the rest of division 4 do not apply to ACL matters. Unfortunately, section 91 in division 4 should not have been included in this carve-out clause. Section 91 includes provisions that specifically relate to taking legal action and procedures relating to evidence. For example, section 91(6) provides: A copy of a book or document that was taken by an authorised officer in investigating a breach of the act, that is certified by the Commissioner to be a true copy of the original, can be taken to be a true copy of the original. This is a technical provision that simplifies the tendering of evidence in a prosecution; rather than having to tender the original, a certified copy must be tendered. Other provisions in section 91 operate along similar lines, making the process of tendering evidence in any given case much easier to deal with. The equivalent of section 91 has existed in the FTA in much the same form since the FTA was passed in 1987. It has operated without controversy through that time and will continue to apply to prosecutions that occur outside the scope of the ACL, that is, to related act controls over second-hand vehicle dealers, plumbers, etc. The same provisions should apply to ACL offences to ensure we do not have to go through a different process compared with other FTA offences for taking ACL matters to court. For this reason I seek the support of members of the council in making this very minor, technical amendment. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: We have no record of this amendment at all; it is certainly not in my folder. The Hon. G.E. GAGO Legislative Council The Hon. G.E. GAGO: I have just been advised that it was tabled last Thursday, which is not a sitting week, so it could not possibly have been tabled, because we were not sitting. I have only just been given that information; I am sorry. Given that, if members need time to read it and think about it, I am more than happy to report progress and come back to it. It is only a very minor technical amendment, but it is difficult to explain the technicalities in a simple way, so I am happy to report progress. The Hon. D.G.E. HOOD Legislative Council The Hon. D.G.E. HOOD: It does seem like a very simple amendment to me, so we would not have strong objections to proceeding, but if the opposition wants to go to the party room we would support that. The Hon. J.M.A. LENSINK Legislative Council The Hon. J.M.A. LENSINK: From my reading of it—and I am not a legal expert—I assume it relates to the gathering of evidence and conflict between different acts. The amendment is only four words, so I do not have any problem, and I certainly do not think this needs to go back to the party room for a decision on our part. I am happy to support continuing debate on the bill. The Hon. T.A. FRANKS Legislative Council The Hon. T.A. FRANKS: The Greens are also happy to continue the debate. Amendment carried; clause as amended passed. Remaining clauses (27 to 36) and title passed. Bill reported with amendment. Third Reading Third Reading Bill read a third time and passed.