Fair Trading Legislation Amendment (Reform) Act 2018 (NSW)

Fair Trading Legislation Amendment (Reform) Act 2018 No 65 An Act to amend various Acts and Regulations administered by the Minister for Innovation and Better Regulation; and other related matters. 1 Name of Act This Act is the Fair Trading Legislation Amendment (Reform) Act 2018. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by this section. (2) Schedules 1–5, 8 and 11 (other than Schedules 2.13, 4.1 and 4.2[2]) commence on 1 July 2020 or on an earlier day or days to be appointed by proclamation. (3) Schedules 2.13, 4.1 and 4.2[2] commence on a day or days to be appointed by proclamation. 3 Explanatory notes The matter appearing under the heading "Explanatory note" in any of the Schedules does not form part of this Act. Schedule 1 Amendments relating to disclosure of information and prescribing information standards 1.1 Fair Trading Act 1987 No 68 [1] Section 9A Exchange of information Renumber the section as section 17AB and transfer it in appropriate order to Division 3 of Part 2, as inserted by this Schedule. [2] Part 2, Division 3 Insert after Division 2 of Part 2— Division 3 Disclosure and sharing of information 17AA Publication of certain information for public access (1) The Secretary may from time to time publish any of the following information about a licence holder or trader on the internet for access by a member of the public free of charge— (a) identifying particulars, including the name of the licence holder or trader, the licence number, class or type, the date of issue and expiry date of the licence and details of any licence conditions, (b) information about the surrender, cancellation or suspension of a licence, (c) information about any disciplinary action taken against a licence holder or trader under this Act or any other legislation administered by the Minister, (d) information about any public warnings issued under this Act or any other legislation administered by the Minister, (e) information about any undertakings given under section 86B of this Act, (f) such other information as may be prescribed by the regulations. (2) The Secretary must not publish information under this section unless satisfied that it is in the public interest to do so. (3) The Secretary may at any time remove information from, or otherwise amend, information published under this section on the Secretary's own initiative or on the application of the person to whom the information relates if the Secretary is of the opinion that the information is false, misleading or unfairly prejudicial to the interests of the person concerned. (4) The Secretary may correct any error in or omission from the information published under this section. (5) Information published under this section may include information held by the Secretary before the commencement of this section. (6) The regulations may specify— (a) the period within which information that is authorised to be published on the internet under this section must be removed from the information published on the internet, and (b) the information that is not to be published on the internet under this section. (7) No liability (including liability in defamation) is incurred for publishing in good faith information under this section or a fair report or summary of that information. (8) In the event of any inconsistency between this section and any other provisions of this Act or other legislation administered by the Minister, this section prevails to the extent of the inconsistency. (9) In this section— licence includes any licence, registration or other authority issued under this Act or any other legislation administered by the Minister. licence holder includes a former licence holder. trader means a person carrying on a business regulated under this Act or other legislation administered by the Minister but who does not hold a licence, and includes any such business that has ceased trading. [3] Part 4, Division 2A Insert after Division 2— Division 2A Provisions relating to disclosure requirements and information standards 47A Disclosure of prejudicial terms relating to supply of goods or services (1) A supplier must, before supplying a consumer with goods or services, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer. (2) Without limiting subsection (1), a term or condition relating to the supply of goods or services to a consumer may substantially prejudice the interests of the consumer if— (a) the term excludes the liability of the supplier, or (b) the term provides that the consumer is liable for damage to goods that are delivered, or (c) the term permits the supplier to provide data about the consumer, or data provided by the consumer, to a third party in a form that may enable the third party to identify the consumer, or (d) the term requires the consumer to pay an exit fee, a balloon payment or other similar payment. (3) The regulations may provide for— (a) what may or may not constitute reasonable steps taken by suppliers to ensure consumers are aware of the substance and effect of terms or conditions relating to the supply of goods or services, and (b) the type of terms, or classes of terms, that may substantially prejudice the interests of consumers, and (c) the type of terms, or classes of terms, that do not substantially prejudice the interests of consumers, and (d) any other requirements in relation to the way in which consumers must be made aware of terms and conditions relating to the supply or goods that may substantially prejudice the interests of consumers, and (e) exemptions from the requirements of this section. 47B Disclosure of referral fees, commissions, etc (1) An intermediary must, before acting under an arrangement that provides for the intermediary to receive a financial incentive, take reasonable steps to ensure the consumer who will be supplied with the goods or services to which the financial incentive relates is aware of the existence of the arrangement. (2) The regulations may provide for— (a) what may or may not constitute reasonable steps taken by intermediaries to ensure consumers are aware of the existence of arrangements that provide for intermediaries to receive financial incentives, and (b) any other requirements in relation to the way in which intermediaries must make consumers aware of the existence of arrangements under which intermediaries receive financial incentives. (3) In this section— financial incentive means— (a) a commission or referral fee, or (b) another kind of payment prescribed by the regulations. intermediary— (a) means a person— (i) who, under an arrangement that provides for a financial incentive, arranges contracts for the supply of goods or services as an agent or refers consumers to another supplier of goods or services, or (ii) who is prescribed by, or who belongs to a class of persons prescribed by, the regulations, but (b) does not include a person, or class of persons, excluded by the regulations. 47C Information standards (1) The regulations may prescribe information standards for the supply of goods and services. (2) A prescribed information standard may contain any of the following— (a) requirements for certain information to be communicated to a person to whom the goods or services are to be supplied, (b) requirements with respect to the type and form of information to be so communicated and the manner of communication. (3) This section does not limit section 134 (Making information standards for goods and services) of the ACL. (4) In this section, supply includes proposed and prospective supply and offer to supply. 47D Compliance with information standard (1) A person who supplies goods or services that are intended to be used, or are of a kind likely to be used, by a consumer and in relation to which there is an information standard must comply with the standard in relation to the goods or services concerned. Maximum penalty—50 penalty units. (2) If— (a) a person supplies goods or services in contravention of subsection (1), and (b) another person suffers loss or damage by not having particular information relating to the goods or services but would not have suffered the loss or damage if the information standard had been complied with in relation to the goods or services, the person who suffers the loss or damage is taken, for the purposes of this Act, to have suffered it by the supply of the goods or services. [4] (Repealed) [5] Section 70 Remedy provisions of ACL that extend to local matters Insert at the end of the section— (3) The following provisions of the ACL apply to a contravention of section 47A (1) or 47B (1) of this Act in the same way as they apply to a contravention of the ACL specified in those provisions— (a) section 224 (Pecuniary penalties), (b) section 248 (Order disqualifying a person from managing corporations). [6] (Repealed) 1.2 (Repealed) Schedule 2 Amendments relating to 1, 3 and 5 year terms and restorations Explanatory note The proposed amendments in this Schedule provide for 1, 3 and 5 year terms for various types of authorities, licences, registrations and certificates (the relevant authorities) across the legislation administered by the Minister for Innovation and Better Regulation. The proposed amendments allow the relevant authorities to be restored, if the applicant applies for the restoration within 3 months of the expiry of the relevant authority. Schedule 2.7 [2] amends uncommenced provisions in the Fair Trading Amendment (Commercial Agents) Act 2016 (the amending Act) in order to give effect to the proposed amendments outlined above. The proposed amendments also provide that the Commissioner may determine that a corporation is not disqualified from carrying out a commercial agent activity for the purposes of the Fair Trading Act 1987, despite being the subject of a winding up order or being a corporation for which a controller or administrator has been appointed, if the Commissioner considers it appropriate to do so. The proposed amendments will commence on a day appointed by proclamation, being a day on or after the day on which Part 5 of the amending Act commences. The proposed amendments allow the NSW Architects Registration Board to remove an architect's name from the register of architects and the Board of Surveying and Spatial Information to remove a surveyor's name from the register of surveyors if the architect or surveyor fails to comply with requirements relating to continuing professional development or, in the case of an architect, professional indemnity insurance. Schedule 2.1 [4] removes the minimum age requirement for the registration of an architect. The Schedule also inserts regulation-making powers to provide for the waiver or refund of fees, savings and transitional provisions and consequential amendments. 2.1 Architects Act 2003 No 89 [1] Section 17A Insert after section 17— 17A Duration of registration (1) An application for full registration or a renewal of registration is to nominate one of the following terms of duration for the registration (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Board may grant or renew registration for the nominated term or, if satisfied that it is in the public interest to do so, a shorter term than the nominated term. (3) If an application for renewal of registration has been made but the application is not finally determined by the Board before the expiry of the registration, the registration (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If registration is granted or renewed for a shorter term than the nominated term, the Board is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of registration does not affect the term of the registration. (6) This section does not affect the term of any registration granted under this Act and in force immediately before the insertion of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. [2] Section 20 Power to refuse or impose conditions on full registration Omit "the duration of registration," from section 20 (3). [3] Section 22 Application to registration of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 39)" after "Part 3" in section 22 (2). [4] (Repealed) [5] Section 24 Removal of architect's name from the Register Insert at the end of section 24 (1) (d)— , or (e) the term of the architect's registration has expired and the registration has not been renewed or restored. [6] (Repealed) [7] Section 28 Annual registration fees Omit section 28 (1). Insert instead— (1) An architect must, on or before 31 March in the year in which the architect's registration is due to be renewed, pay to the Board the approved fee for the registration. [8] Section 28 (2A)–(2C) Insert after section 28 (2)— (2A) An application for the restoration of registration must be made— (a) within 3 months of the expiry of the registration, or (b) within the further period determined by the Board on the application of the person seeking the restoration of registration. (2B) Without limiting subsection (2A) (b), the Board may extend the period within which an application for restoration of a licence may be made if the Board is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired-the failure to apply for renewal of the registration before it expired was due to inadvertence, or (b) it is just and equitable to restore the registration. (2C) An application for the restoration of registration must nominate a term of duration for the registration. [9] Section 28 (7A) Insert after section 28 (7)— (7A) The Board may refuse an application for the restoration of registration in the circumstances prescribed by the regulations. [10] Section 84 Regulations Insert after section 84 (2) (h)— (i) the waiver or refund of the whole or any part of a fee for any service provided by the Board under this Act or the regulations. [11] (Repealed) 2.2 Architects Regulation 2017 Schedule 2 NSW Architects Code of Professional Conduct Omit "during the current registration period" from clause 16 (2). 2.3 Building Professionals Act 2005 No 115 [1] Sections 10 and 10A Omit section 10. Insert instead— 10 Duration of certificate of accreditation (1) An application for a certificate of accreditation or renewal of a certificate of accreditation is to nominate one of the following terms of duration for the certificate of accreditation (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Board may grant or renew a certificate of accreditation for the nominated term or, if satisfied that it is in the public interest to do so, a shorter term than the nominated term. (3) If an application for renewal of a certificate of accreditation has been made but the application is not finally determined by the Board before the expiry of the certificate of accreditation, the certificate of accreditation (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a certificate of accreditation is granted or renewed for a shorter term than the nominated term, the Board is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a certificate of accreditation does not affect the term of the certificate of accreditation. (6) This section does not affect the term of any accreditation granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 10A Time period for restoration of certificate of accreditation (1) An application for the restoration of a certificate of accreditation must be made— (a) within 3 months of the expiry of the certificate of accreditation, or (b) within the further period determined by the Board on the application of the person seeking the restoration of the certificate of accreditation. (2) Without limiting subsection (1) (b), the Board may extend the period within which an application for the restoration of a certificate of accreditation may be made if the Board is satisfied that— (a) in a case where the applicant failed to apply for renewal before the certificate of accreditation expired—the failure to apply for renewal of the certificate of accreditation before it expired was due to inadvertence, or (b) it is just and equitable to restore the certificate of accreditation. (3) A certificate of accreditation that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a certificate of accreditation must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the certificate of accreditation. (5) A certificate of accreditation restored at any time is taken to have been restored on and from the day on which the certificate of accreditation expired. (6) Subject to this section, this Act applies to an application for the restoration of a certificate of accreditation in the same way as it applies to an application for a certificate of accreditation. (7) The Board may refuse an application for the restoration of a certificate of accreditation in the circumstances prescribed by the regulations. [2] (Repealed) 2.4 Building Professionals Regulation 2007 Clause 21 Fees Omit clause 21 (2). 2.5 Conveyancers Licensing Act 2003 No 3 [1] Section 11 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 10)" after "Part 2" in section 11 (2). [2] Section 11 (3) (d) Omit the paragraph. [3] Section 17 Omit the section. Insert instead— 17 Duration of licence (1) An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew a licence for a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a licence does not affect the term of the licence. (6) This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. [4] Section 18 Insert after section 17— 18 Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. [5] (Repealed) [6] Schedule 1 Savings and transitional provisions Insert at the end of clause 2 (1)— any other Act that amends this Act 2.6 Explosives Act 2003 No 39 [1] Section 12 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 10)" after "Part 2" in section 12 (1). [2] Section 16A Insert after section 16— 16A Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the regulatory authority on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the regulatory authority may extend the period within which an application for the restoration of a licence may be made if the regulatory authority is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored on and from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. [3] Section 19 Regulations relating to licences Insert ", including applications for the restoration of licences" after "licences" in section 19 (2) (c). 2.7 Fair Trading Act 1987 No 68 [1] Section 92 Regulations Insert after section 92 (1A) (c)— (d) the waiver or refund of the whole or any part of a fee for any service provided by the Secretary under this Act or the regulations. [2] (Repealed) 2.8 Home Building Act 1989 No 147 [1] Section 19 Application to contractor licences of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 10)" after "Part 2" in section 19 (2). [2] Section 19 (3) (c) Omit the paragraph. [3] Section 24 Application to tradesperson and supervisor certificates of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 10)" after "Part 2" in section 24 (2). [4] Section 24 (3) (c) Omit the paragraph. [5] Section 39 Insert after section 38— 39 Time period for restoration of authorities (1) An application for the restoration of an authority must be made— (a) within 3 months of the expiry of the authority, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the authority. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of an authority may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the authority expired—the failure to apply for renewal of the authority before it expired was due to inadvertence, or (b) it is just and equitable to restore the authority. (3) An authority that has been surrendered or cancelled must not be restored. (4) An application for the restoration of an authority must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the authority. (5) An authority restored at any time is taken to have been restored on and from the day on which the authority expired. (6) Subject to this section, this Act applies to an application for the restoration of an authority in the same way as it applies to an application for an authority. [6] Section 40 Renewal of authorities Omit section 40 (2). Insert instead— (2) The Secretary may also refuse an application for renewal or restoration of an authority if— (a) in the case of an application for renewal, the authority is surrendered or cancelled, or (b) the authority is a provisional authority. [7] Section 40 (5) and (6) Omit the subsections. [8] Section 42 Omit the section. Insert instead— 42 Term of duration of authority (1) An application for an authority (other than an owner-builder permit) or for renewal of an authority is to nominate one of the following terms of duration for the authority (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew an authority for the nominated term or a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of an authority has been made but the application is not finally determined by the Secretary before the expiry of the authority, the authority (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If an authority is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of an authority does not affect the term of the authority. (6) This section does not affect the term of any authority issued under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. [9] (Repealed) 2.9 Motor Dealers and Repairers Act 2013 No 107 [1]–[4] (Repealed) [5] Sections 33 and 33A Omit section 33. Insert instead— 33 Duration of licence (1) An application for a licence or for renewal of a licence is to nominate one of the following terms of duration for the licence (the nominated term)— (a) 1 year, (b) 3 years, (c) 5 years. (2) The Secretary may grant or renew a licence for the nominated term or a shorter term than the nominated term if satisfied that it is in the public interest to do so. (3) If an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined. (4) If a licence is granted or renewed for a shorter term than the nominated term, the Secretary is to refund to the applicant the difference between the fee for the nominated term and the fee for the term that was granted. (5) The suspension of a licence does not affect the term of the licence. (6) This section does not affect the term of any licence granted under this Act and in force immediately before the substitution of this section by the Fair Trading Legislation Amendment (Reform) Act 2018. 33A Time period for restoration of licences (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. [6] (Repealed) 2.10 Pawnbrokers and Second-hand Dealers Act 1996 No 13 [1] Section 9 Application to licences of Licensing and Registration (Uniform Procedures) Act 2002 Insert "(other than section 10)" after "Part 2" in section 9 (2). [2] Section 9 (3) Omit the subsection. Insert instead— (3) A licence may be amended under the applied Act. [3] Sections 10 and 10A Omit section 10. Insert instead— 10 Duration of licence