Australian Consumer Law (Tasmania) Act 2010 (Tas)

Australian Consumer Law (Tasmania) Act 2010 An Act to apply the Australian Consumer Law as a law of Tasmania, to provide for the enforcement of this Act and related Acts, to save various instruments, and for related purposes [Royal Assent 14 December 2010] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Australian Consumer Law (Tasmania) Act 2010 . 2. Commencement (1) Parts 6 and 7 commence on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act – code of practice means a code of practice in respect of fair trading in dealings – (a) between a particular class of suppliers and consumers; or (b) by a particular class of persons in relation to consumers; Director means the person holding the office of Director of Consumer Affairs under the Consumer Affairs Act 1988; related Act means an Act, or a provision of an Act, that is prescribed by the regulations to be a related Act. (2) For the avoidance of doubt, in this Act, unless the contrary intention appears, a reference to this Act includes a reference to the Australian Consumer Law (Tasmania). (3) Notes included in this Act do not form part of this Act. PART 2 - The Australian Consumer Law Division 1 - Definitions 4. Interpretation (1) In this Part, unless the contrary intention appears – application law means – (a) a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or (b) any regulations or other legislative instrument made under a law described in paragraph (a) ; or (c) the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications; Australian Consumer Law means (according to the context) – (a) the Australian Consumer Law text; or (b) the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications; Australian Consumer Law text means the text described in section 5 ; instrument means any document whatever, including the following: (a) an Act or an instrument made under an Act; (b) a law of this jurisdiction or an instrument made under such a law; (c) an award or other industrial determination or order, or an industrial agreement; (d) any other order (whether executive, judicial or otherwise); (e) a notice, certificate or licence; (f) an agreement; (g) an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose; (h) an indictment, presentment, summons or writ; (i) any other pleading in, or process issued in connection with, a legal or other proceeding; Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being; jurisdiction means a State or the Commonwealth; law, in relation to a Territory, means a law of, or in force in, that Territory; modifications includes additions, omissions and substitutions; month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month; participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications; proclamation means a proclamation of the Governor published on the Tasmanian legislation website; State includes a Territory; Territory means the Australian Capital Territory or the Northern Territory of Australia; this jurisdiction means Tasmania. (2) Terms used in this Part and also in the Australian Consumer Law (Tasmania) have the same meanings in this Part as they have in that Law. (3) For the purposes of this Part – (a) a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and (b) that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction. Division 2 - Application of Australian Consumer Law 5. The Australian Consumer Law text The Australian Consumer Law text consists of – (a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and (b) the regulations under section 139G of that Act. 6. Application of Australian Consumer Law (1) The Australian Consumer Law text, as in force from time to time – (a) applies as a law of this jurisdiction; and (b) as so applying may be referred to as the Australian Consumer Law (Tasmania); and (c) as so applying is a part of this Act. (2) This section has effect subject to sections 7 , 8 and 9 . 7. Future modifications of Australian Consumer Law text (1) A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 6 if the modification is declared by a proclamation to be excluded from the operation of that section. (2) A proclamation under subsection (1) has effect only if published or notified no later than 2 months after the date of the modification. (3) Subsection (1) ceases to apply to the modification if a further proclamation so provides. (4) For the purposes of this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 of the Commonwealth. 8. Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction (1) In the Australian Consumer Law (Tasmania) – regulator means the Director. (2) For the purposes of the application of the Australian Consumer Law (Tasmania) – court means – (a) in relation to section 218 of the Australian Consumer Law (Tasmania), the Magistrates Court (Civil Division); and (b) in any other case, a court of competent jurisdiction. 9. Interpretation of Australian Consumer Law (1) The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the Australian Consumer Law (Tasmania). (2) For the purposes of subsection (1) , the Commonwealth Act mentioned in that subsection applies as if – (a) the statutory provisions in the Australian Consumer Law (Tasmania) were a Commonwealth Act; and (b) the regulations in the Australian Consumer Law (Tasmania) or instruments under that Law were regulations or instruments under a Commonwealth Act. (3) The Acts Interpretation Act 1931 of Tasmania does not apply to – (a) the Australian Consumer Law (Tasmania); or (b) any instrument under that Law. 10. Application of Australian Consumer Law (1) The Australian Consumer Law (Tasmania) applies to and in relation to – (a) persons carrying on business within this jurisdiction; or (b) bodies corporate incorporated or registered under the law of this jurisdiction; or (c) persons ordinarily resident in this jurisdiction; or (d) persons otherwise connected with this jurisdiction. (2) Subject to subsection (1) , the Australian Consumer Law (Tasmania) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia). Division 3 - References to Australian Consumer Law 11. References to Australian Consumer Law (1) 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. (2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires. 12. References to Australian Consumer Law of other jurisdictions (1) This section has effect for the purposes of an Act, a law of this jurisdiction or an instrument under an Act or such a law. (2) If a law of a participating jurisdiction other than this jurisdiction 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 4 - Application of Australian Consumer Law to Crown 13. Division does not apply to Commonwealth In this Division – other jurisdiction does not include the Commonwealth; participating jurisdiction does not include the Commonwealth. 14. Application law of this jurisdiction The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned. 15. Application law of other jurisdictions (1) The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction. (2) If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege. 16. Activities that are not business (1) For the purposes of sections 14 and 15 , the following do not amount to carrying on a business: (a) imposing or collecting – (i) taxes; or (ii) levies; or (iii) fees for authorisations; (b) granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions); (c) a transaction 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 one 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 – (i) the body chooses to acquire the products; or (ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products. (2) Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 14 and 15 . (3) In this section – acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation; authorisation means a licence, permit, certificate or other authorisation that allows the holder of the authorisation to supply goods or services; government body means a State or an authority of a State; primary products means – (a) agricultural or horticultural produce; or (b) crops, whether on or attached to the land or not; or (c) animals (whether dead or alive); or (d) the bodily produce (including natural increase) of animals. (4) For the purposes of this section, an authority of a State is "non-commercial" if – (a) it is constituted by only one person; and (b) it is neither a trading corporation nor a financial corporation. 17. Crown not liable to pecuniary penalty or prosecution (1) Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence. (2) Without limiting subsection (1) , nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction. Division 5 - Miscellaneous 18. Conferral of functions and powers on certain bodies (1) The authorities and officers of the Commonwealth referred to in the Australian Consumer Law (Tasmania) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (Tasmania). (2) In addition to the powers mentioned in subsection (1) , the authorities and officers referred to in that subsection 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 referred to in that subsection. 19. No doubling-up of liabilities (1) If – (a) an act or omission is an offence against the Australian Consumer Law (Tasmania) and is also an offence against an application law of another participating jurisdiction; and (b) 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 Australian Consumer Law (Tasmania). (2) If a person has been ordered to pay a pecuniary penalty under an application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (Tasmania) in respect of the same conduct. PART 3 - Enforcement Provisions Division 1 - Preliminary 20. Interpretation (1) In this Part – authorised officer means an authorized officer within the meaning of the Consumer Affairs Act 1988. (2) Without limiting subsection (1) , unless the contrary intention appears, the terms used in this Part and also in the Australian Consumer Law (Tasmania) have the same meanings in this Part as they have in the Australian Consumer Law (Tasmania). (3) A reference in this Part to a person involved in a contravention of a provision of this Act or a related Act is to be read as a reference to a person who has – (a) aided, abetted, counselled or procured the contravention; or (b) induced, whether by threats or promises or otherwise, the contravention; or (c) been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) conspired with others to effect the contravention. Division 2 - Powers of authorised officers 21. Powers of authorised officer to enter, search and inquire, &c. (1) For the purposes of this Act or a related Act, an authorised officer may, at all reasonable times – (a) enter any place where the authorised officer knows or reasonably believes that a person is engaging, or has engaged, in conduct that constitutes, or may constitute, a contravention of this Act or a related Act; and (b) in any place lawfully entered do any or all of the following: (i) search for, examine, take possession of, or make copies of, or extracts from, documents or records relating to goods or services supplied or to be supplied; (ii) search for goods and examine goods; (iii) open any package that the authorised officer knows, or reasonably suspects, to contain goods; (iv) question, with respect to matters with which this Act or a related Act is concerned, any person employed in that place; and (c) make the inquiries that the authorised officer believes to be necessary or desirable in relation to the exercise of his or her powers under this Act or a related Act. (2) An authorised officer must not enter any place under subsection (1) unless the authorised officer – (a) has the permission of the proprietor or manager of that place; or (b) has first obtained a warrant under subsection (3) . Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 9 months, or both. (3) A magistrate may issue a warrant if he or she is satisfied by evidence on oath, upon the complaint of an authorised officer, that there is reasonable cause to permit entry to any place referred to in subsection (1) for the purposes specified in that subsection. (4) A warrant issued under subsection (3) is to be a warrant, directed to an authorised officer specified in the warrant, to enter the place, specified in the warrant, for the purpose of exercising in that place the powers conferred on the authorised officer by this Act or a related Act. (5) A warrant issued under this section is, for a period of 7 days from its issue, sufficient authority – (a) to the authorised officer to whom it is directed, and to all persons acting in aid of the authorised officer, to enter the place specified in the warrant; and (b) to the authorised officer to whom it is directed to exercise in respect of the place specified in the warrant all the powers conferred on an authorised officer by this Act or a related Act. 22. Dealings with documents, &c., by authorised officer (1) An authorised officer who has taken possession under section 21(1)(b) of any document or record – (a) is to sign for the document or record; and (b) is to return the document or record immediately it is no longer required for any proceedings under this Act or a related Act. (2) A person who – (a) is otherwise entitled to possession of a document or record retained by an authorised officer under subsection (1) ; and (b) requests the authorised officer to be provided with a copy of the document or record – is entitled to be provided as soon as practicable with a copy of that document, or record, that is a copy certified by the Director to be a true copy. (3) A certified copy provided under subsection (2) is to be received in all courts and elsewhere as evidence of the matters contained in that copy, as if it were the original. 23. Powers of authorised officers to require delivery of documents, &c. (1) An authorised officer who has reason to believe that a person possesses any document, or record, that is relevant to a matter under this Act or a related Act may require that person to deliver the document or record, or a copy of the document or record, as directed. (2) A requirement under subsection (1) may specify that the document, record, or copy, to which it relates is to be delivered – (a) at a place specified in the requirement; and (b) to the Director or any other authorised officer; and (c) at, by, or within, a time specified in the requirement; and (d) in person, by certified mail or in any other prescribed manner. 24. Embargo notices (1) An authorised officer who enters premises under a search warrant may give a notice (in this section referred to as an "embargo notice") to the occupier of the premises. (2) An embargo notice must – (a) be in writing; and (b) specify the consumer goods or product related services to which the notice relates; and (c) if the notice relates to consumer goods, state that the specified consumer goods must not be – (i) supplied in or from the premises; or (ii) transferred, moved, altered, destroyed or otherwise interfered with – during the period specified in the notice; and (d) if the notice relates to product related services, state that the specified product related services must not be supplied in or from the premises during the period specified in the notice. (3) A person who knows that an embargo notice relates to consumer goods or product related services must not supply, transfer, move, alter, destroy or interfere with the goods, or supply the product related services, in contravention of the notice. Penalty: Fine not exceeding 200 penalty units. (4) It is a defence to a prosecution for an offence against subsection (3) for the defendant to prove that the defendant moved the consumer goods, or the part of the consumer goods, for the purpose of protecting and preserving the goods. 25. Infringement notices (1) An authorised officer may issue and serve an infringement notice on a person if he or she reasonably believes that the person has committed an infringement offence. (2) An infringement notice may not be served on an individual who has not attained the age of 18 years. (3) An infringement notice – (a) is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 ; and (b) is not to relate to more than 3 offences. (4) The regulations – (a) may prescribe, for infringement offences, the penalties payable under infringement notices; and (b) may prescribe different penalties for bodies corporate and individuals. (5) The penalty prescribed for any infringement offence is not to exceed 20% of the maximum penalty that could be imposed on an individual by a court in respect of the offence. (6) . . . . . . . . (7) In this section – infringement offence means an offence against this Act, or the regulations, that is prescribed by the regulations to be an infringement offence. 26. Obstruction, &c., of authorised officers (1) A person must not – (a) assault, resist, impede or obstruct an authorised officer in the exercise of any powers under this Act or attempt to do so; or (b) use threatening, abusive or insulting language to an authorised officer engaged in the exercise of any powers under this Act or to any person assisting an authorised officer who is so engaged; or (c) fail to comply with a lawful request, direction or requirement of an authorised officer; or (d) fail to produce to an authorised officer, when required to do so by that officer, any document or record that – (i) is relevant to the provisions of this Act or of a related Act; and (ii) is in the possession, or at the disposal, of that person; or (e) impersonate an authorised officer. Penalty: Fine not exceeding 20 penalty units. (2) If a person is convicted of an offence against subsection (1)(c) or (d) , the court may order the person to – (a) comply with the lawful request, direction or requirement; or (b) produce to an authorised officer the document or record – that was the subject of the offence, as the case may require. 27. Injunctions in respect of certain provisions of this Act or related Acts (1) The Supreme Court may grant an injunction in the terms the Court determines to be appropriate if, on the application of the Minister, the Director or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute – (a) a contravention of a provision of this Act or a related Act; or (b) attempting to contravene such a provision; or (c) aiding, abetting, counselling or procuring a person to contravene such a provision; or (d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) conspiring with others to contravene such a provision. (2) Subsection (1) does not apply in relation to a provision of the Australian Consumer Law (Tasmania). (3) Nothing in this section is to be taken to prevent the granting of an injunction under the Australian Consumer Law (Tasmania). (4) Without prejudice to the generality of subsection (1) , an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) – (a) for a specified period; or (b) except on specified terms and conditions. (5) The Supreme Court may, if – (a) an application for an injunction under subsection (1) has been made; and (b) the Court determines it to be appropriate – grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1) . (6) The Supreme Court may grant an interim injunction pending determination of an application under subsection (1) , if, in the opinion of the Court, it is desirable to do so. (7) The Supreme Court may rescind or vary an injunction granted under subsection (1) , (5) or (6) . (8) If the Minister or the Director makes an application to the Supreme Court for the grant of an injunction under this section, the Court is not to require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. (9) If – (a) in a case to which subsection (8) does not apply, the Supreme Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and (b) the Minister gives the undertaking – the Supreme Court is to accept the undertaking by the Minister and is not to require a further undertaking from any other person. Division 3 - General provisions about enforcement 28. Conduct by directors, employees and agents (1) If, in proceedings under this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind. (2) Any conduct engaged in on behalf of a body corporate – (a) by a director, employee or agent of the body corporate within the scope of the person's actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent – is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate. (3) If, in proceedings under this Act in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of the employee's or agent's actual or apparent authority, had that state of mind. (4) Conduct engaged in on behalf of a person other than a body corporate – (a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent – is to be taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for that intention, opinion, belief or purpose. 29. Power of court to prohibit payment or transfer of moneys or other property (1) If – (a) proceedings have been commenced in a court of summary jurisdiction against a person for an offence against this Act; or (b) an application has been made under section 232 of the Australian Consumer Law (Tasmania) for an injunction in respect of a person – the court having jurisdiction in the proceeding may, if it is satisfied as to the relevant matters, make, on the application of the Minister or the Director, an order or orders mentioned in subsection (3) . (2) For the purposes of subsection (1) , the relevant matters are that – (a) it is necessary or desirable to do so for the purpose of preserving money or other property held by or on behalf of a person referred to in subsection (1)(a) or (b) , as the case may be (in this section referred to as the "relevant person"); and (b) the relevant person is liable or may become liable under this Act to pay money by way of a fine, damages, compensation, refund or otherwise or to transfer, sell or refund other property; and (c) it will not unduly prejudice the rights and interests of any other person. (3) The orders referred to in subsection (1) are as follows: (a) an order prohibiting a person who is indebted to – (i) the relevant person; or (ii) an associate of the relevant person – from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed; (b) an order prohibiting a person who is holding money or other property on behalf of the relevant person, or on behalf of an associate of the relevant person, from – (i) paying all or any of the money; or (ii) transferring, or otherwise parting with possession of the other property – to – (iii) the person on whose behalf the money or other property is held; or (iv) another person at the direction or request of the person on whose behalf the money or other prope