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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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STATUTES AMENDMENT AND REPEAL (AUSTRALIAN CONSUMER LAW) BILL

Introduction and First Reading

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) (20:34): Obtained leave and introduced a bill for an act to amend the Fair Trading Act 1987 to make provision for the application of the Australian Consumer Law as a law of South Australia; to amend the Statutes Amendment and Repeal (Fair Trading) Act 2009; and to repeal the Fair Trading (Telemarketing) Amendment Act 2009, the Manufacturers Warranties Act 1974 and the Trade Standards Act 1979. Read a first time.

Second Reading

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) (20:35): I move:

That this bill be now read a second time.

This bill, the Statutes Amendment and Repeal (Australian Consumer Law) Bill 2010, 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 nationally consistent consumer protection laws. The bill itself will apply the Australian Consumer Law as a law of South Australia and make changes to existing South Australian legislation to give effect to this new regime.

On 15 August 2008, the Ministerial Council on Consumer Affairs agreed that all jurisdictions would adopt a new nationally consistent Australian Consumer Law to replace the consumer protection provisions of the Trade Practices Act 1974 of the commonwealth (the TPA) and the fair trading laws now operating in each jurisdiction.

On 2 October 2008, COAG agreed that the final form of the consumer policy framework would comprise a single national consumer law based on the TPA and draw on the best practice in state and territory consumer laws, including a provision regulating unfair contract terms and a national product safety system.

COAG's objective in agreeing to establish an Australian Consumer Law is to remove overlapping and inconsistent regulation between jurisdictions in respect of fair trading and trade practices controls. It is anticipated that the reforms will improve business efficiency, reduce red tape and improve consumer confidence.

The Australian Consumer Law is underpinned by the Australian Consumer Law Intergovernmental Agreement (ACLIGA) which was signed by the Premier in July 2009. This agreement establishes the framework for all signatories to the ACLIGA to implement and administer the new law.

Consistent with the ACLIGA, the commonwealth has passed two laws giving effect to the Australian Consumer Law: the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010, (the first ACL act); and the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010, (the second ACL act). Copies of both of these acts are available from the commonwealth Treasury website.

The first ACL act, passed by the commonwealth on 17 March 2010, amends commonwealth law to set up a framework for full commencement of the Australian Consumer Law on 1 January 2011. The second ACL act, passed by the commonwealth on 24 June 2010, is the primary mechanism that implements the Australian Consumer Law. This act renames the TPA as the Competition and Consumer Act 2010 and inserts the full text of the Australian Consumer Law into a schedule of the Competition and Consumer Act. It is this schedule that will be applied as the law of South Australia, thereby implementing the Australian Consumer Law in this jurisdiction.

In passing this bill, South Australia will be taking a further step towards a key aspect of COAG's national business and regulatory reform agenda to create a seamless national economy. South Australia will also be delivering on the commitment under the ACL IGA by implementing the Australian Consumer Law on 1 January 2011. The core provisions of the Australian Consumer Law are based on existing provisions of the TPA, these laws prohibiting such things as misleading and deceptive conduct, unconscionable conduct, unsolicited supplies and pyramid schemes, already existing in more or less the same form in state/territory fair trading laws, including the South Australian Fair Trading Act 1987 (FTA).

With the introduction of the Australian Consumer Law, all of the inconsistencies that have developed over time between the commonwealth and state and territory laws will be removed. The Australian Consumer Law also adds significant new consumer protections, including provisions drawn from best practice provisions in existing state and territory consumer protection and fair trading laws.

A new unfair contract terms law will strengthen protection against unfair terms in standard form contracts. The new regime is designed to protect consumers where they cannot effectively bargain and are offered contracts on a 'take it or leave it' basis. Under the unfair contract terms provision, if a court determines that a term in a standard form consumer contract is unfair, then the term is not binding on the consumer. To minimise the impact of these reforms on business, the regime ensures that, in cases where the contract can still operate without the unfair term, the contract will continue to operate.

South Australia has for many years had laws that provide a 10-day cooling off period for consumers to purchase goods from door-to-door traders. Last year, the Rann government also passed the Fair Trading (Telemarketing) Amendment Bill 2009 to extend the same controls over telemarketing. This bill will repeal that act, because the Australian Consumer Law will introduce a nationally harmonised regime to assist consumers who purchase from both door-to-door traders and telemarketers. These new harmonised door-to-door and telemarketing controls will provide all consumers with a 10-day cooling off period to protect against predatory marketing practices.

One significant difference from the existing South Australian door-to-door regime is that the Australian Consumer Law will further limit allowable weekday/evening door-to-door visiting hours by two hours per day during weekdays. Currently, door-to-door traders may, to the annoyance of many consumers, visit homes between 9am and 8pm. The new Australian Consumer Law regime will ensure that door-to-door traders may only make house calls without prior arrangement between 9am and 6pm, so it is a two hour difference.

The limits on door-to-door trading on Saturdays outside the hours of 9am and 5pm and the prohibition on Sundays and public holidays will remain the same. Telemarketing calling hours will continue to be separately regulated under the Do Not Call Register Act 2006 of the commonwealth and will be allowed between 9am and 8pm on weekdays, with the same limits on Saturdays, Sundays and public holidays as the door-to-door controls.

The Australian Consumer Law includes a harmonised product safety regime for consumers and services related to the supply, installation or maintenance of consumer goods. The new regime will take the place of the existing South Australian Trade Standards Act 1979, which will be repealed by the bill. Under the new product safety regime, state and territory ministers will retain the ability to issue interim product safety bans, compulsory recall notices and public warning statements. However, to ensure national coordination consistency, only the commonwealth minister will have the power to issue permanent bans, make safety and information standards and conduct voluntary recalls.

Other Australian Consumer Law protections include: a national consumer guarantees law, which replaces the existing state and territory and commonwealth implied warranty regimes; a requirement that lay-by sales agreements be in writing and can be terminated at any time by the consumer; a prohibition on false or misleading testimonials; a provision clarifying that a consumer is not liable to pay for unsolicited services; a requirement for specified consumer contracts to be expressed in plain language and legible; a statutory right to an itemised bill or receipt for goods or services supplied above a certain value; a prohibition on multiple pricing to ensure that consumers no longer have to deal with the confusion created when more than one price for a product is displayed.

The Australian Consumer Law will greatly assist consumer affair regulators in taking a national approach to enforcement, while consumer affairs regulators in the states and territories and the commonwealth will each have the capacity to take action against those who breach the Australian Consumer Law. Regulators will work together to take coordinated and effective action to stamp out unfair practices and enforce a new product safety regime on a national basis.

To ensure consistency in enforcement approaches, the Australian Consumer Law provides a number of standard enforcement tools, penalties and consumer remedies, of which all jurisdictions may take advantage. These include disqualification orders, substantiation notices and public warning powers. Regulators may also, where appropriate, seek injunctions, damages, compensation orders and orders seeking redress on behalf of consumers who are not party to enforcement proceedings. Breaches of Australian Consumer Law provisions are subject to a range of both civil and criminal penalties, with maximum penalties of up to $220,000 for individuals and $1.1 million for corporations. These penalties are consistent with the existing TPA and are significantly higher than the existing penalties in the FTA, thereby providing for greater protection to consumers in South Australia.

While the Australian Consumer Law contains harmonised enforcement provisions, it does not contain any standardised powers of investigation. Given that each jurisdiction will continue to be responsible for the enforcement of the Australian Consumer Law, it has therefore been necessary for South Australia to retain its existing FTA investigation powers. The bill also incorporates into the FTA the product safety enforcement powers that exist in the Trade Standards Act 1979, which is to be replaced by the Australian Consumer Law product safety regime.

The bill will also include an embargo notice power in the FTA, which is based on the commonwealth Australia Consumer Law enforcement provisions. This bill will allow an authorised officer from the Office of Business and Consumer Affairs to prevent a trader from moving or dealing with goods that are subject to an embargo order. The power itself is limited in that it may only be used if the authorised officer would otherwise be able to seize the item, but is prevented from doing so due to the difficulty in physically removing or storing the item.

The bill also puts in place transitional arrangements and repeals a number of provisions that have been made redundant through the application of the Australian Consumer Law, or cannot be retained because they would operate inconsistently with the Australian Consumer Law. For example, the bill repeals the FTA substantiation of claims power because a similar power will be available under the Australian Consumer Law. Also, it is necessary to repeal the Manufacturers Warranty Act 1974, given the protections in that act will now be reflected in the new Australian Consumer Law guarantees regime.

A number of amendments that were made to the FTA under the Statutes Amendment and Repeal (Fair Trading) Act 2009, the 2009 act, have not yet been commenced. The majority of those uncommenced provisions were made in an effort to harmonise provisions of the FTA with the TPA, given the development of the Australian Consumer Law. Most of these amendments have now been rendered unnecessary and so will now be repealed. One key aspect of the 2009 act, relating to the regulation of recreational services is, however, still required and will be enacted through this bill. The 2009 act repealed the Recreational Services (Limitation of Liability) Act 2003 and replaced it with reforms that allow suppliers of recreational services to modify, exclude or restrict the rights of consumers under the FTA if the consumer (or representative) signs a contractual waiver of liability.

The bill will have the effect of ensuring, as desired by the recreational services industry, that this regime will be retained in the transition to the Australian Consumer Law. Because the amendment in the 2009 act had the effect of altering the effect of an implied warranties regime in the FTA, and as such a regime will now be replaced by the Australian Consumer Law consumer guarantees provisions, the bill makes minor amendments to the recreational services provision to ensure that it operates effectively in the context of the new law.

The introduction of this bill and the implementation of the Australian Consumer Law in South Australia and across the national represents a significant achievement for both business and consumers. For business, the Australian Consumer Law is a step towards a seamless national economy which reduces regulatory complexity and allows for greater efficiences. For consumers, this single national law will provide a consistent set of rights wherever goods or services are purchased in Australia. I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Fair Trading Act 1987

4—Amendment of long title

It is proposed to amend the long title of the Act to reflect the fact that the Australian Consumer Law is to be applied as a law of the State. The application of the Australian Consumer Law in each of the participating jurisdictions will result in a nationally consistent law providing for consumer protection.

5—Substitution of section 3

Current section 3 is to be repealed and a new section 3 (Interpretation) is to be substituted containing a number of definitions of words and phrases relating to the application of the Australian Consumer Law as a law of the State, as well as other definitions, or interpretive provisions, required generally for the purposes of the Fair Trading Act 1987 (the principal Act).

6—Insertion of section 4A

New section 4A is to be inserted. New section 4A (Extraterritorial application) provides that the principal Act is intended to have extraterritorial application insofar as the legislative powers of the State permit.

7—Substitution of Parts 3 and 4

Currently, Part 3 regulates door-to-door trading, and Part 4 prohibits mock auctions. These Parts are to be repealed and a new Part providing for the application of the Australian Consumer Law as a law of the State is to be substituted. The Australian Consumer Law includes provisions substantially the same as those currently provided for in the Parts that are to be repealed.

Part 3—Australian Consumer Law

Division 1—Application of Australian Consumer Law

13—Australian Consumer Law text

The Australian Consumer Law text consists of—

Schedule 2 of the Competition and Consumer Act 2010 of the Commonwealth; and

the regulations under section 139G of that Act.

14—Application of Australian Consumer Law

Subject to new sections 15, 16 and 17, the Australian Consumer Law text, as in force from time to time—

applies as a law of this jurisdiction; and

as so applying may be referred to as the Australian Consumer Law (SA) (the ACL (SA)); and

as so applying is a part of the Fair Trading Act 1987.

15—Future modifications of Australian Consumer Law text

A modification made by a Commonwealth law to the Australian Consumer Law text after this new section commences does not apply under new section 14 if the modification is declared by proclamation to be excluded from the operation of that section.

16—Meaning of generic terms used in Australian Consumer Law

In the ACL (SA)—

court—

in respect of proceedings under section 218 of the ACL (SA)—means the Magistrates Court; and

in respect of any other proceedings—means the court of this State having appropriate jurisdiction in relation to the proceedings;

regulator means the Commissioner.

17—Interpretation of Australian Consumer Law

The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the ACL (SA) as if—

the statutory provisions in the ACL (SA) were a Commonwealth Act; and

the regulations in the ACL (SA) or instruments mentioned under that Law were regulations or instruments under a Commonwealth Act.

The Acts Interpretation Act 1915 of this State does not apply to—

the ACL (SA); or

any instrument under the ACL (SA).

18—Application of Australian Consumer Law

The ACL (SA) applies to and in relation to—

persons carrying on business within this jurisdiction; or

bodies corporate incorporated or registered under the law of this jurisdiction; or

persons ordinarily resident in this jurisdiction; or

persons otherwise connected with this jurisdiction,

and (subject to the preceding statements) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

Division 2—References to Australian Consumer Law

19—References to Australian Consumer Law

Except so far as the contrary intention appears, a reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.

20—References to Australian Consumer Laws of other jurisdictions

If a law of a participating jurisdiction other than South Australia provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.

Division 3—Application of Australian Consumer Law to Crown

21—Division does not apply to Commonwealth

This section provides that the terms participating jurisdiction and other jurisdiction, when used in Division 3, do not include the Commonwealth.

22—Application law of this jurisdiction

To the extent that the legislative power of Parliament permits it to do so, the application law of South Australia binds the Crown in right of this State and of each other jurisdiction, so far as the Crown carries on a business.

23—Application law of other jurisdictions

The application law of each participating jurisdiction (other than South Australia) binds the Crown in right of this State, so far as the Crown carries on a business. If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of South Australia, the Crown in the right of South Australia is subject to the provision despite prerogative rights and privileges.

24—Activities that are not business

This new section specifies certain activities that do not amount to carrying on a business for the purposes of new section 23:

(a) imposing or collecting taxes, levies or fees for authorisations;

(b) granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);

(c) transactions involving—

(i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of a State); or

(ii) only persons who are all acting for the same authority of a State; or

(iii) only the Crown in right of a State and 1 or more non-commercial authorities of that State; or

(iv) only non-commercial authorities of the same State;

(d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because the body chooses to acquire the products or the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

It also includes definitions of a number of terms used in the section.

25—Crown not liable to pecuniary penalty or prosecution

Nothing in the application law of this State makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence. Further, nothing in the application law of a participating jurisdiction makes the Crown in right of this State liable to a pecuniary penalty or to be prosecuted for an offence. This protection does not extend to authorities.

Division 4—Miscellaneous

26—Conferral of functions and powers on certain bodies

The authorities and officers of the Commonwealth referred to in the ACL (SA) have the functions and powers conferred or expressed to be conferred on them under that law. Those authorities and officers also have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers conferred or expressed to be conferred on them under the ACL (SA).

27—No doubling-up of liabilities

Where an act or omission is an offence against both the ACL (SA) and an application law of another participating jurisdiction, and the offender has been punished for the offence under the application law of the other jurisdiction, the offender is not liable to be punished for the offence against the ACL (SA).

If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the ACL (SA) in respect of the same conduct.

28—Certain proceedings prevented in certain circumstances

If a person expiates an alleged offence against the ACL (SA), proceedings cannot be started or continued against the person under section 224 of the ACL (SA) in relation to an alleged contravention of a provision of the ACL (SA) in respect of the same conduct.

28A—Minister may require information

Under this new section, the Minister may require a person, by written notice, to provide within a specified period information that is reasonably necessary for the purpose of determining whether—

(a) a provision of Part 3-3 of the ACL (SA) is being or has been complied with; or

(b) the Minister should impose or revoke an interim ban on consumer goods, or product related services, of a particular kind; or

(c) the Minister should issue a recall notice for consumer goods of a particular kind; or

(d) the Minister should publish a safety warning notice about consumer goods and product related services.

A person who refuses or fails to comply with a reasonable requirement of the Minister, or who knowingly makes a statement that is false or misleading in a material particular in an answer given or information provided in response to a notice, is liable to a maximum penalty of $20,000.

A person is not required to provide information under this section if the provision of the information would result in or tend towards self-incrimination.

28B—Minister to publish certain notices in Gazette

If the Minister publishes a written notice on the Internet in accordance with a requirement of the ACL (SA), the Minister must, as soon as reasonably practicable after the publication, publish the notice in the Gazette.

28C—Cost of testing

This new section provides for the recovery of certain costs connected with the examination, analysis or testing of consumer goods or product related services conducted under the principal Act. Such costs may be recoverable where the Minister imposes an interim ban or issues a recall notice, or where the goods or services are found not to comply with an applicable safety standard. Such costs may also be recoverable if a person provides materially inaccurate information in relation to consumer goods or product related services and an examination, analysis or test carried out for the purpose of testing the accuracy of the information.

8—Amendment of heading to Part 5

Part 5 of the principal Act is to become Part 4.

9—Amendment of section 34—Correction of errors

This clause removes subsection (8) of section 34, which provides a definition of Magistrates Court for the purposes of the section. The definition is no longer required because the term is defined in section 3 for the purposes of the whole Act.

10—Repeal of Part 6

This clause repeals Part 6. The Part is no longer required because the matters it deals with are the subject of provisions under the ACL (SA).

11—Substitution of heading to Part 7

Part 7 of the principal Act is to become Part 5 and is to be headed 'Additional consumer protection provisions'.

12—Substitution of section 42

This clause repeals section 42, which is no longer required because its subject matter is dealt with by the ACL (SA), and substitutes a new section dealing with the limitation of liability in connection with the provision of recreational services.

42—Recreational services

Section 42 provides that a term of a contract for the supply of recreational services may exclude, restrict or modify a guarantee that would otherwise have been implied in the contract under section 60 or 61 of the Australian Consumer Law.

This provision operates subject to the following requirements being met:

the exclusion, restriction or modification contained in the term is limited to excluding, restricting or modifying the liability of the supplier for any personal injury suffered by the consumer or some other person for whom or on whose behalf the consumer is acquiring the services (ie, a third party consumer);

the term contains the prescribed particulars and is in the prescribed form;

the term is brought to the attention of the consumer and any third party consumer prior to the supply of the services;

the consumer agrees to the term in the prescribed manner;

a statement containing any other information prescribed by regulation is made available to the consumer and any third party consumer in accordance with prescribed requirements.

The provision does not operate to exclude, restrict or modify the liability of the supplier for damages for any significant personal injury suffered by the consumer or a third party consumer if it is established (by applying the general principles set out in section 34 of the Civil Liability Act 1936, which relate to causation) that the reckless conduct of the supplier caused the injury.

Under proposed subsection (4), a term of a contract that purports to indemnify a person who supplies recreational services in relation to any liability that may not be excluded, restricted or modified under the section is void. This provision does not apply in relation to a contract of insurance.

A person's conduct is reckless if the person engages in the conduct even though the person is aware, or should reasonably have been aware, of a significant risk that his or her conduct could result in injury to another.

Personal injury is defined to include mental or nervous shock and death.

Recreational services are services that consist of participation in—

a sporting activity or a similar leisure-time pursuit; or

any other activity that—

involves a significant degree of physical exertion or physical risk; or

is undertaken for the purposes of recreation, enjoyment or leisure.

Significant means not nominal, trivial or minor.

13—Repeal of heading to Part 8

14—Repeal of heading to Part 8A

The provisions of Parts 8 and 8A are to be incorporated into Part 5 (Additional consumer protection provisions). These clauses therefore remove the headings to those Parts.

15—Amendment of heading to Part 9

The heading to Part 9 of the principal Act, which deals with third-party trading schemes, is amended by this clause so that it becomes Part 6.

16—Repeal of Part 10

This clause repeals Part 10 of the principal Act. Part 10 sets out a number of consumer protection provisions of the Trade Practices Act of the Commonwealth and thereby applies those provisions as laws of South Australia. The Part is to be repealed because the matters it deals with are the subject of provisions under the ACL (SA).

17—Amendment of heading to Part 11

Part 11 of the principal Act, which deals with enforcement, is to become Part 7.

18—Amendment of section 76—Conduct of legal proceedings on behalf of consumers

Section 76 provides that the Commissioner for Consumer Affairs may institute, defend or assume the conduct of legal proceedings on behalf of a consumer for the purpose of enforcing or protecting the consumer's rights under the principal Act or a related Act. As amended by this clause, the section will not apply in relation to the rights of consumers under the ACL (SA).

19—Amendment of section 78—Entry and inspection

Subsection (1) of section 78, which sets out the powers of authorised officers in relation to entry and inspection, is revised by this clause so that it incorporates powers of standards officers under the Trade Standards Act 1979. The Trade Standards Act 1979 is to be repealed as it deals with matters that are to be regulated by the ACL (SA), and the functions of standards officers under the Trade Standards Act 1979 are to be carried out by authorised officers under the principal Act. It is therefore necessary for authorised officers to have the powers of standards officers set out under section 15 of the Trade Standards Act 1979.

20—Insertion of sections 78B and 78C

This clause inserts two new sections.

78B—Dealing with goods bought or seized

Section 78B deals with matters consequential on the examination, analysis or testing of goods seized or purchased by authorised officers.

78C—Embargo notices

This section authorises the issuing of an embargo notice if an officer is authorised to seize a record, device or other thing that cannot readily be physically removed or stored. An embargo notice is a notice forbidding the use, movement, sale, leasing, transfer, deletion of information from or other dealing with the record, device or other thing, or any part of it, without the written consent of an authorised officer. The sections sets out requirements in relation to the content and service of embargo notices. A person who knowingly does something that is forbidden by an embargo notice, or instructs another person to do something that the first person knows is forbidden by an embargo notice, is liable to a maximum penalty of $10,000.

21—Amendment of section 79—Assurances

Section 79 of the principal Act provides for the acceptance by the Commissioner of assurances given by traders in connection with matters in relation to which the Commissioner has powers under the Act (or a related Act). The Act includes an offence of acting contrary to an assurance. Section 79 as amended by this clause will not apply in relation to the Commissioner's powers or functions under the ACL (SA). This is because the Commissioner will have the power under section 218 of the ACL (SA) to accept undertakings in connection with matters in relation to which the regulator has a power or function under that Law.

22—Insertion of section 82A

This clause inserts a new section.

82A—Application of Division

Section 82A provides that Division 3 of Part 7 (formerly Part 11) does not apply in relation to conduct that constitutes or would constitute a contravention of a provision of the ACL (SA). The Division deals with civil remedies for contravention of the principal Act.

23—Amendment of section 83—Injunctions

The amendment made by this clause is consequential on the repeal of Part 10 of the principal Act. Section 83(2) includes an exception for section 57. That exception is deleted by this clause because section 57 is within the repealed Part.

24—Repeal of section 84

Section 84 is to be repealed because it deals with actions for damages in respect of contraventions of Part 10, which is to be repealed.

25—Amendment of section 85—Orders for compensation

The amendments made by this clause to section 85 are also consequential on the repeal of section 57.

26—Insertion of section 86A

This clause inserts a new section.

86A—Application of Division

Section 86A provides that Division 4 of Part 7 (formerly Part 11) does not apply in relation to conduct that constitutes or would constitute a contravention of a provision of the ACL (SA). The provisions of the Division are not required to operate in relation to the ACL (SA) and will therefore apply only in relation to offences under the principal Act other than the ACL (SA).

27—Amendment of section 91—Evidentiary provisions

The amendments made by this clause to section 91 are consequential. The clause repeals two subsections that relate only to Part 3 of the Act. Part 3 is repealed by clause 5.

28—Amendment of section 91A—Public warning statements

This clause amends section 91A, which authorises the Minister or the Commissioner to issue public statements identifying and giving warnings about certain goods, services or business practices, so that a statement may not be made about the conduct of a person if a public warning notice could be issued under section 223 of the ACL (SA) relating to the same conduct.

29—Amendment of section 97—Regulations

Under the regulation making power as amended by this section, the regulations may—

be of general or limited application;

confer powers or impose duties in connection with the regulations on the Minister, the Commissioner or an authorised officer;

exempt a specified person or class of persons, or a specified transaction or class of transactions, from compliance with the principal Act or a specified provision of the principal Act, either absolutely or on conditions or subject to limitations;

make different provision according to the classes of persons, or the matters or circumstances, to which the regulations are expressed to apply;

prescribe codes of practice to be complied with by traders;

incorporate, adopt, apply or make prescriptions by reference to, with or without modifications, any document formulated or published by any body or authority as in force at a particular time or from time to time;

make provisions of a saving or transitional nature—

consequent on the amendment of the principal Act by a relevant Act; or

relevant to the interaction between the principal Act and a relevant Commonwealth Act;

fix expiation fees, not exceeding $1,200, for alleged offences against the principal Act or the regulations;

impose penalties not exceeding $2,500 for contravention of, or failure to comply with, a regulation.

30—Transitional provision

The transitional provision provides that an assurance accepted by the Commissioner under section 79 of the Fair Trading Act 1987 before the amendment of that section will be taken to be an undertaking for the purposes of section 218 of the ACL (SA) accepted by the Commissioner in connection with the relevant matter.

Part 3—Amendment of Statutes Amendment and Repeal (Fair Trading) Act 2009

31—Variation of section 11—Amendment of section 3—Interpretation

32—Repeal of section 34

33—Repeal of section 36

These clauses repeal three sections of the Statutes Amendment and Repeal (Fair Trading) Act 2009 that have not yet come into operation. The sections make amendments to the Fair Trading Act 1987 that are redundant because of the proposed repeal of Part 10 of that Act.

Part 4—Repeal of Fair Trading (Telemarketing) Amendment Act 2009

34—Repeal of Fair Trading (Telemarketing) Amendment Act 2009

The Fair Trading (Telemarketing) Amendment Act 2009 is repealed by this clause because the amendments made by that Act to the Fair Trading Act 1987 are redundant.

Part 5—Repeal of Manufacturers Warranties Act 1974

35—Repeal of Manufacturers Warranties Act 1974

This clause repeals the Manufacturers Warranties Act 1974.

Part 6—Repeal of Trade Standards Act 1979

36—Repeal of Trade Standards Act 1979

This clause repeals the Trade Standards Act 1979. Certain provisions of the repealed Act relating to the powers of investigators are to be reenacted in the Fair Trading Act 1987.

Debate adjourned on motion of Hon. T.J. Stephens.

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