Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 October 2021.)

The Hon. C.M. SCRIVEN (00:05): I rise to give Labor's support to the Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Bill 2021. My colleagues, the member for Enfield and the member for Lee in the other place, are members of the Economic and Finance Committee responsible for the report which forms the basis of this bill. I would like to thank them and the MTA and RAA for their support and advice regarding this bill.

The committee's findings are of great concern for both consumers and for small business. A significant proportion of the 53 written submissions received by the committee were from the vehicle repair small business community. This included small businesses which were so concerned about the repercussions from insurers that they made their submissions to the committee confidential.

As well as these confidential and other submissions, the committee heard from 35 witnesses across seven public hearings, and two in-camera hearings. Such is the desire for change that the committee's final report itself recognises that public galleries during hearings were consistently full of interested observers from the repair industry. Those galleries heard about a number of issues again and again:

the difficulties for consumers accessing their repairer of choice;

claims of insurers steering consumers towards their preferred network of repairers;

the use of second-hand and/or non-original equipment manufacturer parts and repairs, and related safety, warranty and liability concerns when using those parts;

insurers cash settling consumers instead of repairing their vehicles, often leaving them worse off;

a lack of transparency of information, with consumers often not being made fully aware by insurers of all the details related to their repairs and/or insurance policies;

disagreements over the methodology used by crash repairers and insurers to assess the repairs needed and the cost of said repairs to restore the motor vehicle back to pre-accident condition; and

the quote negotiation process.

Small businesses and the automotive industry more broadly have advised the opposition that it is this bill, the Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Bill 2021 that will remedy what is the single biggest issue for the crash repair industry.

The bill presents a straightforward, uncomplicated and workable solution to achieving recommendation 1 of the report, which states that:

1. The South Australian government introduce legislation to mandate the Motor Vehicle Insurance and Repair Industry Code of Conduct (Code of Conduct) in South Australia, as well as provisions for:

a binding mediation process to enable the expedited resolution of internal disputes between motor vehicle insurers and crash repairers, overseen by a suitable independent authority, such as the Small Business Commissioner or the Commissioner for Consumer and Business Services;

appropriate financial penalties for breaches of the Code of Conduct to ensure compliance by all parties; and,

an ongoing review process to ensure that the Code of Conduct remains up-to-date and relevant to the current industry requirements.

As it stands, consumers who have choice of repairer policies who disagree with the repair method or value of repairs insisted by their insurer are often left high and dry without their vehicle while insurers use their market power to pressure family-run businesses.

This bill will give teeth to the voluntary national code by compelling parties to sort out their disputes and by introducing penalties for breaches. Currently, that is simply not happening, not in this state nor anywhere else in Australia. I am advised that, as the national code is simply referred to in regulation, any updates created by this bill can be gazetted by the responsible minister to ensure national consistency, something that both repairers and insurers have told government they want.

I would like to note that the findings and recommendations from the committee's report which informed this bill were not merely a push by one side of politics. They were bipartisan and they were clear. It was disappointing then to see amongst the amendments filed by the Treasurer two that would weaken the intent of the bill. I would like to remind the Treasurer that members of his government sat on the committee and signed off on the recommendations that were made—the same recommendations that this bill seeks to address and the same recommendations that would be weakened by the Treasurer's two amendments.

Across the country, since 2014, there has been committee after committee in state after state seeking national reform on this issue, and each time motor vehicle repairers and consumers are frustrated by a lack of action. In New South Wales, Western Australia and now South Australia, committees have been formed, committees have heard evidence and committees have made recommendations. It is now up to this council to ensure that this bill passes with all the intended strengths it seeks to insert to support small family-run businesses in the automotive industry, as well as supporting the safety, quality and transparency of repairs to the consumer.

I would like to thank my colleagues in the other place, the member for Enfield and the member for Lee, for their work to ensure the recommendations of the committee are reflected in this bill. It is also important to thank the MTA and the RAA for their input, expert advice and consultation on this bill right up to today. I would also like to acknowledge the member for Waite, who originally tabled this bill in the other place, as well as the Hon. John Darley, for their work and cooperation to achieve the goals of the committee.

The Hon. R.A. SIMMS (00:11): I rise on behalf of the Greens to speak in support of this bill. This bill makes many important changes that are long overdue, and certainly the Greens understand that the sector has been advocating for, and we are supportive of those. I also understand that the Labor Party will be moving a number of amendments at the committee stage. I do not propose to speak to all of those. I am happy to indicate now that we will be supporting the Labor Party amendments.

I am disappointed to note that once again the Treasurer, on behalf of the government, is advocating amendments that will dilute the impact of the bill, as we have seen with respect to other motions today. Might I say that, whilst I might be the Dr Evil of this place, the Treasurer is the Dr Dolittle because many of his amendments are rendering the motions and bills meaningless, so for that reason the Greens will not be supporting them.

The Hon. F. PANGALLO (00:12): I rise to speak in support of the Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Bill 2021. I support the bill as received from the House of Assembly as a private member's bill and thank the Hon. John Darley for his efforts in getting this bill to us in the Legislative Council. I would also like to thank the Economic and Finance Committee for producing a report containing the 11 recommendations that underpin this bill and all of those who generously provided their expert opinion and insights to the committee, such as the Motor Trade Association, the Royal Automobile Association, the insurance industry and consumer groups.

There are a number of important provisions to improve consumer experiences, confidence and trust in insurance companies and the motor vehicle repair industry in this bill, and I am keen to seen them implemented. Consumers pay considerable sums for insurance to give them peace of mind. Should something go wrong, heaven forbid, there should be no doubt that consumers, who have often paid premiums for years without claiming, will be treated fairly should the worst happen.

One of the most important safeguards for consumers is that under this bill insurers must not disclose to the insurance policyholder whether they have a choice of repairer or not. Consumers deserve to have choice and to know what they are getting when they take their car in to be repaired. It is disturbing to hear through my consultations on this bill, and in the committee report that looked into the issue, that some disreputable repairers use second-hand or non-original parts in repairs and that some insurers have a network of preferred providers, thus creating small exclusive monopolies that could lack competition and transparency.

As we all know, consumer disputes in motor vehicle repairs are common at every level, often starting with towing services, assessors, through to dissatisfaction of the quality of body and motor repairs. Being able to choose your repairer can make the overall process less problematic for consumers, who can conduct their own due diligence and choose a local, reputable and/or recommended repairer than those who are given no choice.

I do not support the government's amendment to remove this important provision. As my colleagues in the lower house noted, there is also a move by some of the larger multinational insurers to steer consumers to their preferred network of repairers or indeed, in some cases, to their own workshops.

The motor vehicle repair industry is not immune to disruptors who have seen the opportunity to control the entire motor vehicle repair process from policy through to repair. Thus, clause 4 of the bill, which requires the insurer to disclose where it has entered into a contract or has some other pre-existing arrangement—not just a direct financial interest with a repairer—under this policy is critical and must be retained.

I do not support the government's amendment to limit this clause either. I am particularly pleased the bill mandates the Motor Vehicle Insurance and Repair Industry Code of Conduct in South Australia. This includes a binding mediation process—with financial penalties for breaching the code—and ongoing review process to keep the code up to date. It is my understanding that these are civil penalties and they should act as a deterrent against misconduct in the industry.

We will not support the Labor government amendments to remove these penalties. A code is only as good as its compliance and enforcement mechanisms, and without it will be a toothless tiger for consumers. I will note here the RAA's objection to those criminal penalties, which clearly were far too punitive and would also create a compliance burden. The RAA also wanted the bill delayed to ensure adequate consultation. I do not know how much more consultation we can do on this. You can over consult and still not appease all of them.

The RAA also fears an increase in premiums because of the requirements to meet the compliance. I am 67 years old; I have been paying motor vehicle insurance now for the best part of something like 50 years. I do not recall seeing my insurance premiums ever come down, so I think it is a bit of a furphy. With those brief words, I commend the bill to the council.

The Hon. R.I. LUCAS (Treasurer) (00:18): What I can say to the Hon. Mr Pangallo is, his CTP insurance certainly has come down in the last few years under the Liberal government. But anyway, it is not really an issue in relation to this particular bill.

I rise on behalf of the government today to support the second reading of the Motor Vehicle Insurers and Repairers Amendment Bill 2021. The bill allows for an applicable industry code to be declared by regulation in relation to the conduct of the business of insurers and repairers. The member for Waite has taken a keen interest in this following the Economic and Finance Committee inquiry into the motor vehicle insurance and repair industry in South Australia when he was the Chair of the Economic and Finance Committee, as I understand.

Of the 11 recommendations made by the committee, the recommendation to mandate the voluntary commonwealth Motor Vehicle Insurance and Repair Industry Code of Conduct attracted the most interest. The government has provided in-principle support to the recommendation, noting that there were a number of associated issues that would need to be considered in further detail.

The Commissioner for Consumer Affairs was subsequently tasked with establishing a working group to consider the various options in relation to mandating the code in South Australia. That working group included representatives from the Insurance Council of Australia, the Motor Trade Association, and Consumer and Business Services as well as the Small Business Commissioner.

The working group considered a number of potential options including maintaining the status quo, mandating the code in South Australia similar to New South Wales, mandating the code in South Australia with the inclusion of financial penalties for specified provisions, establishing a new industry code broadly consistent with the national voluntary code and utilising the existing Fair Trading (Motor Vehicle Industry Dispute Resolution Code) Regulations 2014.

Advice provided to the Attorney-General by the commissioner indicates that although the working group was unable to reach complete agreement, both the insurance and repair sectors generally supported mandating the code in South Australia. It remains the government's view that a national approach, whereby the code is mandated nationally by the commonwealth, is preferable to ensure consistency across jurisdictions. However, in the absence of this, and in light of the findings from the working group presented by the commissioner, the government supports the bill that has been put to the council and in doing so proposes a number of amendments to address issues relating to the administration of the code.

As currently drafted, the bill assumes responsibility for the administration of the code will sit with the Commissioner for Consumer Affairs. An amendment to this is proposed to provide the option for certain provisions of the code to be administered by the Small Business Commissioner in a manner similar to that which currently exists for industry codes under the Fair Trading Act 1987.

Just speaking to that briefly, the point that the Attorney-General is making here is that the similar industry codes are evidently administered by the Small Business Commissioner, not the Commissioner for Consumer Affairs, and that if this is to be an industry code the Attorney-General is making the not unreasonable point that this should be the Small Business Commissioner and not the Commissioner for Consumer Affairs who is responsible for the administration of this particular industry code.

The government also proposes amendments to the bill to replace the criminal penalties with civil penalties and expiation fees, consistent with penalties that apply to existing industry codes under the act, enable fees to be prescribed in relation to dispute resolution procedures undertaken under the applicable industry code of conduct, and to require industry consultation on regulations declaring an applicable code of conduct, again for consistency, with a similar requirement applying to industry codes under the act.

It would seem entirely uncontroversial to require industry consultation on regulations about an applicable code of conduct when that is a requirement for the other industry codes under the act. Given the predisposition of a majority in this chamber to require appropriate consultation on all issues, I am unsure as to how a requirement of consultation is seen as a supposedly significant weakening of the provisions of the legislation. With that, I indicate the government's support for the second reading of the bill.

The Hon. J.A. DARLEY (00:22): First of all I would like to thank the Hon. Clare Scriven, the Hon. Rob Simms, the Hon. Frank Pangallo and the Hon. Rob Lucas for their contribution and commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C.M. SCRIVEN: Just very briefly, simply because it might be useful given the time, I will note that Labor will support amendments Nos 1 through 7, as well as 10 through 13, as these amendments mostly deal with ensuring that the bill can be administered effectively under existing industry regulation and the Fair Trading Act.

Following consultation with the crossbench and concerns regarding amendments successfully moved by my colleague the member for Lee in the other place, which would increase maximum penalties, we are happy to compromise on these increases and accept the Treasurer's amendment No. 7 as well as move our own amendment No. 1 of set 1 to return maximum penalties to reflect those in the Fair Trading Act.

However, Labor will be opposing amendments Nos 8 and 9, as these amendments would weaken the bill for consumers and small business repairers and go against the intent of the bill and the findings of the committee. Labor has engaged widely with industry in respect of this bill and Labor has listened to the needs of South Australian consumers and small businesses in coming to these positions.

Clause passed.

New clause 1A.

The Hon. R.I. LUCAS: If I can just clarify, as I understand it, the deputy leader has just indicated a willingness to support amendments Nos 1 to 7 and 10 to 13 and oppose 8 and 9.

The Hon. C.M. SCRIVEN: Yes.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–2]—

Page 2, after line 5—Insert:

1A—Commencement

This Act comes into operation on a day to be fixed by proclamation.

Amendment No. 1 will allow for the provisions to come into operation on a day fixed by proclamation, which can be aligned with consideration for the regulations that are required to support the provisions of the bill.

The Hon. C.M. SCRIVEN: Although we will be supporting this amendment, we note that the MTA and others in the industry are seeking a commitment from the Treasurer for a quick rollout, ideally by 1 July 2022. Is the Treasurer able to provide this assurance?

The Hon. R.I. LUCAS: At 12.30 in the morning I suspect I cannot ring the Attorney-General and ask her to give that assurance. Let me do my very best and say I am pretty sure I can give that assurance but I will need to, when she wakes in the morning, give her a call and get a commitment. I can certainly convey that to the honourable member but I suspect, to the extent that it is possible, the Attorney-General will make sure that she tries to meet with that particular requirement assuming, of course, the government is re-elected in March next year.

The Hon. J.A. DARLEY: I indicate that I will be supporting amendments Nos 1 to 7 and 10 to 13.

New clause inserted.

Clause 2 passed.

Clause 3.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–2]—

Page 2, lines 10 to 20—Delete the clause and substitute:

3—Amendment of section 4B—Administration of Act

Section 4B(2)—after paragraph (b) insert 'and'

(c) Part 3B (other than section 28K).

This amendment explicitly provides the Small Business Commissioner the responsibility of these provisions with the exception of section 28K—Insurer must disclose relevant interest in relation to repairer, which will be the responsibility of the Commissioner for Consumer Affairs.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Treasurer–2]—

Page 3, lines 15 to 17 [clause 4, inserted section 28H, definition of Commissioner]—Delete the definition

This removes the definition which defines the commissioner as both the Commissioner for Consumer Affairs and the Small Business Commissioner. This removes the ambiguity with respect to both commissioners having dual and undefined responsibilities in relation to these provisions.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 4 [Treasurer–2]—

Page 3, lines 34 to 36 [clause 4, inserted section 28I(3)]—Delete 'contain provisions of a saving or transitional nature consequent on the declaration of an applicable industry code of conduct' and substitute:

—

(a) prescribe fees in respect of the administration of an applicable industry code of conduct; and

(b) make provisions of a saving or transitional nature consequent on the declaration of an applicable industry code of conduct.

This amendment has been suggested by parliamentary counsel following the above amendments which now clarify responsibility for the administration of an applicable code. This amendment moves the existing power under section 28L of the bill to prescribe fees with respect to the administration of an applicable industry code.

The Hon. C.M. SCRIVEN: As indicated, Labor will be supporting this amendment but notes that local industry would like the Treasurer to give an assurance that any fees, with respect to amendment No. 4, will be consistent with existing Small Business Commissioner mediation processes and costs.

The Hon. R.I. LUCAS: Again, I am afraid that at this stage I cannot give that assurance. I suspect I might be in a position tomorrow to give an assurance along those particular lines, but at this particular hour I just cannot give that assurance.

The Hon. R.A. SIMMS: I indicate for clarity that we will be supporting that amendment.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 5 [Treasurer–2]—

Page 4, lines 5 to 7 [clause 4, inserted section 28J(1), penalty provision]—Delete the penalty provision

This amendment deletes the existing criminal penalty provision in section 28J. Proposed penalties have been a point of contention, with the current bill providing criminal penalties of $100,000 for body corporate and $20,000 for an individual. The inclusion of criminal penalties for a breach of the applicable code is inconsistent with other industry codes under the Fair Trading Act 1987 and similar codes administered by the Australian Competition and Consumer Commission and the Australian Securities and Investment Commission, which all have civil penalties.

It is appropriate that any penalties in this bill are civil, which will assist with the burden of proof of an alleged breach being on the balance of probabilities as opposed to beyond reasonable doubt, which may present increased barriers to enforcement, as the regulator would need to meet a much higher threshold. Should a version of the bill progress with the penalties remaining criminal, the government will need to reconsider whether it is appropriate that responsibility rests with the Small Business Commissioner, as the government considers this to potentially be inconsistent with the commissioner's role and the role of that office.

For consistency with existing industry codes under the Fair Trading Act, the government is of the view that the civil penalty of $50,000 for body corporate and $10,000 for individuals would be most appropriate.

The Hon. C.M. SCRIVEN: Labor will be supporting this amendment. Through the opposition's public consultation, we know that industry is supportive of complainants backing the legitimacy of their concerns and dispelling perceptions that dispute resolution processes are used vexatiously. Industry and the opposition are supportive of this amendment, as it does not wish to see court processes holding up determinations for breaches of the code of conduct, which could see consumers' motor vehicles left in limbo for extended periods of time while the matter is determined. By expiating offences for any commissioner-determined breaches of the code of conduct, consumers' needs will be resolved faster; hence, our support.

The Hon. R.A. SIMMS: To assist you, Chair, the Greens will be supporting this amendment.

Amendment carried.

The CHAIR: Continuing on clause 4, amendment No. 1 [Bourke–1], I call the Deputy Leader of the Opposition.

The Hon. C.M. SCRIVEN: Sorry, Mr Chairman, I thought this amendment would occur after the Treasurer's amendment No. 8, as it is related. We will be opposing Treasurer's amendment No. 8 and if successful in that opposition I would then seek to move my amendment.

The CHAIR: My advice is that we should do amendment No. 8 [Treasurer–2] first. There is a crossover, so I can understand why we may have got the wires crossed there to some extent. We will proceed with amendment No. 8, [Treasurer–2].

The Hon. R.I. LUCAS: Chair, can I seek to assist the committee?

The CHAIR: Yes.

The Hon. R.I. LUCAS: It might assist you, Chair, but if not I will shut up and sit down. I understand from the majority of members in this chamber that there is not going to be any support for government amendment No. 8. The government obviously prefers that our amendment gets up, but I understand that that is not going to get up. In the alternative, the government is prepared, as I understand it, to support Labor amendment No. 1.

There are two Labor amendments, at clause 4 and clause 6. I understand we are going to lose amendment No. 8, so I will just flag at this stage that I will not move amendment No. 8. My advice is that if I am unsuccessful with amendment No. 8 we will support the two Labor amendments, one to clause 4 and one to clause 6. If that assists the committee, that I indicate that I will not move my amendment No. 8, then that might help expedite the committee proceedings.

The CHAIR: On that basis, we can proceed with amendment No. 1 [Bourke-1]. Thank you for your assistance.

The Hon. C.M. SCRIVEN: I move:

Amendment No 1 [Bourke–1]—

Page 5, lines 7 to 9 [clause 4, inserted section 28K(2), penalty provision]—Delete the penalty provision

These comments had been prepared in anticipation of the government moving their amendment, which they have now agreed not to do, but I will just get the notes on the record. The Attorney-General's office had indicated that this is better addressed by the primary regulator of the insurance sector, the commonwealth government. However, in the absence of the commonwealth government deciding to act, the South Australian parliament should—those are my comments, not the Attorney-General's comments.

There are numerous examples of where states have acted where the federal government could have done so. Seatbelts, compulsory third-party insurance and registration are all things that state government legislates and administers that one could argue should be administered federally. However, in the absence of this, state governments step up.

The consumer should know if they will have the freedom to choose their own repairer. If an insurer wants to take this freedom away from a consumer, which many consumers believe is part of all vehicle insurance policies, the insurer should be forced to prominently disclose this prior to a consumer signing their policy. The state should act to prevent customers of insurance companies from not being made aware that their insurance policy's provisions are being eroded.

While there are provisions in the Motor Vehicle Insurance and Repair Industry Code of Conduct around freedom of choice, the inclusion of this section ensures that there can be no ambiguity as to whether an insurer must highlight whether a policy includes a provision for the consumer to make a choice as to which repairer may be engaged to undertake repairs or not.

The CHAIR: I thank the deputy leader for that. It has come to my attention now that we actually have to deal with the Treasurer's amendments Nos 6 and 7 before the one that has just been addressed by the deputy leader; however, it is on the record. So we will move to amendment No. 6, [Treasurer-2] at clause 4, page 4, lines 8 to 27.

The Hon. R.I. LUCAS: I move:

Amendment No 6 [Treasurer–2]—

Page 4, lines 8 to 27 [clause 4, inserted section 28J(2) to (4)]—Delete subsections (2) to (4) (inclusive) and substitute:

(2) The Small Business Commissioner must, on or before 30 September in each year, prepare and submit a report to the Minister responsible for the administration of the Small Business Commissioner Act 2011 containing the following information in respect of the immediately preceding financial year:

(a) the number of proceedings commenced by the Commissioner under section 86B for an alleged civil penalty contravention against section 28J(1);

(b) the outcome of those proceedings.

(3) A report required under subsection (2) may be combined with a report of the Small Business Commissioner required under any other Act (provided that such reports relate to the same period).

Amendment No. 6 deletes existing provisions within section 28J that confuses the roles of the commissioner as it intertwines existing functions and powers of the Commissioner for Consumer Affairs unnecessarily in disputes between businesses. As I have noted, consumers should continue to be directed to Consumer and Business Services. Whilst Australian consumer laws provide nationally consistent protections for consumers, the commonwealth has a specialised and dedicated authority established explicitly to assist consumers with insurance disputes, the Australian Financial Complaints Authority.

Whilst CBS may provide initial advice and assistance to consumers, they may refer consumers to the experts at AFCA for specialist advice and assistance. These provisions in the applicable code primarily seek to provide a mediation scheme and penalties for the resolution of disputes between the repairer and insurer which appropriately rests with the Small Business Commissioner. This amendment also provides for annual reporting requirements by the Small Business Commissioner in relation to these provisions which may be combined with other reporting requirements.

The Hon. J.A. DARLEY: I have indicated previously that I will be supporting the Treasurer's amendments Nos 6 and 7.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 7 [Treasurer–2]—

Page 4, lines 35 to 37 [clause 4, inserted section 28K(1), penalty provision]—Delete the penalty provision

This deletes existing criminal penalties in section 28K for the reasons I outlined earlier in relation to amendment No. 5.

Amendment carried.

The CHAIR: We have already moved amendment No. 1 [Bourke-1] and we have had an explanation of it.

The Hon. R.I. LUCAS: Now that we return to amendment No. 1 [Bourke-1], can I just indicate that, as I said, the government's preferred position was to move its amendment No. 8, which I am not going to do now because of the votes against it, but that amendment would have deleted subsection (2). The government's view was that it was better addressed by the primary regulator of the insurance sector, which was the commonwealth government. In the absence of being able to get the numbers for that, the government is prepared to support this particular amendment being moved by the Labor Party.

The Hon. J.A. DARLEY: I indicate that I will be supporting both of Emily Bourke's amendments.

Amendment carried.

The Hon. R.I. LUCAS: I understand the numbers are not there in the committee to support it; nevertheless I move:

Amendment No 9 [Treasurer–2]—

Page 5, lines 14 to 16 [clause 4, inserted section 28K(3)(b)]—Delete paragraph (b)

This is proposed section 28K(1) and imposes an obligation on an insurer to disclose to a policyholder consumer any relevant interest in an intended repairer with subsection (3) defining relevant interest. Subsection (3)(a) defines this as where an insurer owns or has any financial interest in the business of the repairer, while subsection (3)(b) extends this to any contractual or other arrangement with a repairer.

Amendment 9 deletes subsection (3)(b) as the government is of the view that this is too prescriptive and may unintentionally capture arrangements or other agreements that may not warrant regulatory oversight. In the absence of this provision subsection (3)(a) provides sufficient disclosure to a consumer.

Amendment negatived.

The Hon. R.I. LUCAS: I move:

Amendment No 10 [Treasurer–2]—

Page 5, line 17 to page 6, line 6 [clause 4, inserted section 28L]—Delete the section and substitute:

28L—Regulations

(1) A proposal for regulations for the purposes of this Part (other than section 28K) may be initiated by the Minister responsible for the administration of the Small Business Commissioner Act 2011.

(2) If the Minister responsible for the administration of the Small Business Commissioner Act 2011 initiates a proposal for regulations for the purposes of this Part, the Minister must, before the regulations are made, consult with each organisation that the Minister considers to be representative of an industry likely to be affected by the regulations.

(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 made for the purposes of this Part (other than section 28K).

Amendment No. 10 recasts proposed section 28L relating to the regulation-making power. Consistent with the reasons I have outlined earlier, this amendment explicitly provides for the Small Business Commissioner to have responsibility for the applicable industry code in these provisions, with the exception of section 28K which will rest with the Commissioner for Consumer Affairs as noted above.

The Hon. J.A. DARLEY: I have previously indicated I would support the Treasurer's amendments Nos 10, 11, 12 and 13.

Amendment carried; clause as amended passed.

New clauses 5 and 6.

The Hon. R.I. LUCAS: I move:

Amendment No 11 [Treasurer–2]—

Page 6, after line 6—After clause 4 insert:

5—Amendment of heading to Part 7 Division 3A

Heading to Part 7 Division 3A—delete 'for contravention of industry codes'

6—Amendment of section 86A—Interpretation

Section 86A(a)—delete 'contravenes section 28E and the contravention is of a class declared by regulation to be subject to a civil penalty' and substitute:

—

(i) contravenes section 28E and the contravention is of a class declared by regulation to be subject to a civil penalty; or

(ii) contravenes section 28J(1) or 28K(1)

Amendment No. 11 has been suggested by parliamentary counsel to amend the heading of part 7, division 3A to delete reference to the contravention of an industry code as it is now proposed to also apply to these provisions. This amendment also seeks to further amend section 86A to specifically refer to section 28J and section 28K with respect to the application of civil penalties. Section 86B provides the maximum civil penalty for a civil contravention that I referred to above, being $50,000 for a body corporate and $10,000 for an individual. In the interests of expediting the committee stage of the debate, I indicate that the government will be supporting the proposed Labor amendment to this amendment.

The CHAIR: I will put the question initially that proposed clause 5 as proposed to be inserted by the Treasurer be agreed to.

New clause 5 inserted.

The Hon. C.M. SCRIVEN: I move:

Amendment No 1 [Bourke–2]—

Amendment to Amendment No 11 [Treasurer-2]—

Inserted subparagraph (ii)—Delete ‘or 28K(1)’ and substitute ‘, 28K(1) or (2)’

This amendment is consequential to the earlier amendment and inserts subsection (2) regarding product disclosure of consumer's choice of repairer into the newly inserted clause 6 following the successful passing of Treasurer's amendment No. 11.

The CHAIR: The question I will put is that the amendment put by the Hon. C. Scriven to the amendment moved by the Treasurer be agreed to.

Amendment to the amendment carried; new clause 6 as amended inserted.

New schedule 1.

The Hon. R.I. LUCAS: I move:

Amendment No 12 [Treasurer–2]—

Page 6, after line 6—Insert:

Schedule 1—Related amendments

Part 1—Amendment of Small Business Commissioner Act 2011

1—Amendment of section 5—Functions

(1) Section 5(1)—after paragraph (d) insert:

(da) to administer Part 3B (Regulation of motor vehicle insurers and repairers) of the Fair Trading Act 1987 to the extent that responsibility for that administration is assigned to the Commissioner under that Act; and

(2) Section 5(1)(e)—after subparagraph (i) insert:

(ia) non-compliance with an applicable industry code of conduct declared under section 28I of the Fair Trading Act 1987 that may adversely affect small businesses; and

Schedule 1 of these amendments updates the Small Business Commissioner Act 2011 to update the functions of the Small Business Commissioner to include the administration of the applicable code.

New schedule inserted.

Long title.

The Hon. R.I. LUCAS: I move:

Amendment No 13 [Treasurer–2]—Long title—

After 'Fair Trading Act 1987' insert:

and to make related amendments to the Small Business Commissioner Act 2011

Amendment carried; long title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. J.A. DARLEY (00:50): I move:

That this bill be now read third time.

Bill read a third time and passed.