New South Wales: Fair Trading Act 1987 (NSW)

Fair Trading Act 1987 No 68 An Act to regulate the supply, advertising and description of goods and services and, in certain respects, the disposal of interests in land; to repeal the Consumer Protection Act 1969 and certain other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Fair Trading Act 1987. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. 3 Extent to which Act binds the Crown (1) This Act (other than the ACL) binds the Crown in right of the State in so far as the Crown in right of the State carries on a business, whether directly or by an authority of the State. (2) Nothing in this Act renders the State liable to prosecution for an offence. Note— Division 4 of Part 3 provides for the application of the ACL to the Crown. 4 Definitions (1) In this Act, except the ACL— acquire includes— (a) in relation to goods—acquire by purchase or exchange or by taking on lease, on hire or on hire-purchase, (b) in relation to services—accept, and (c) in relation to an interest in land—acquire by purchase or exchange or by taking on lease, or in any other manner in which an interest in land may be acquired for valuable consideration. advisory committee means a committee appointed under section 9B. assisted person means a person granted legal assistance under section 13. authorised person means a person authorised by the Secretary. banker has the same meaning as in section 2 (1) of the ACL. business includes— (a) a business not carried on for profit, and (b) a trade or profession. consumer has the same meaning as in section 3 of the ACL. consumer contract has the same meaning as in section 2 (1) of the ACL. consumer goods has the same meaning as in section 2 (1) of the ACL. dangerous, in relation to goods, means likely to cause death or to cause injury to the body or health of a person, whether the death or injury is likely to be caused directly or indirectly and whether or not because of— (a) a failure to include with or on the goods any instructions for their use, (b) the inclusion with or on the goods of instructions for the use of the goods that are inaccurate or inadequate, (c) a failure of the goods to function in the manner represented by the manufacturer or supplier, (d) the goods not being of the quality represented by the manufacturer or supplier, or (e) the necessity for, or possibility of, the use of the goods with other goods. defective goods action has the same meaning as in section 2 (1) of the ACL. Department means the Department of Customer Service. disposal, in relation to an interest in land, means disposal by sale, exchange or lease or by any other method by which an interest in land may be disposed of for valuable consideration. document has the same meaning as in section 2 (1) of the ACL. embargo notice means a notice given under section 23D. employee means— (a) the Secretary or any other Public Service employee employed in the Department, or (b) any person engaged by the Secretary (with the approval of the Minister and on such terms as the Minister thinks fit) to assist in the exercise of the Secretary's functions. goods has the same meaning as in section 2 (1) of the ACL. interest, in relation to land, means— (a) a legal or equitable estate or interest in the land, (b) a right of occupancy of the land, or of a building or part of a building erected on the land, conferred by shares, or by virtue of a contract to purchase shares, in a corporation that owns the land or the building, or (c) a right, power or privilege over, or in connection with, the land. interim ban has the same meaning as in section 2 (1) of the ACL. investigator means an employee appointed by the Secretary under section 18 as an investigator. permanent ban has the same meaning as in section 2 (1) of the ACL. price includes a charge of any description and the price of goods or services acquired by a person (whether or not by purchase) is the amount paid or payable for them or, if such an amount is not specified because acquisition of the goods or services is part only of a transaction for which a total amount is paid or payable, is— (a) the lowest amount for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier, or (b) if they could not reasonably have been acquired separately from any supplier—their value at the time of the transaction. product related service has the same meaning as in section 2 (1) of the ACL. public authority means a public or local authority constituted by an Act (whether or not a statutory body representing the Crown) or a Public Service agency. published, in relation to a statement, includes— (a) inserted in a newspaper or other publication, (b) publicly exhibited— (i) in, on, over or under a building, vehicle, aircraft or ship, or in any other place (whether or not a public place and whether on land or water), or (ii) in the air in view of persons who are, or are passing, in or on a street or public place, (c) contained in a document sent or given to a person or thrown or left upon, or at, premises occupied by a person, (d) broadcast by radio or television, (e) reproduced electronically, and (f) made verbally. recall notice has the same meaning as in section 2 (1) of the ACL. regulations means regulations made under section 92. rely on has the same meaning as in section 2 (1) of the ACL. safety warning notice means a notice published under section 129 of the ACL. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department. services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges and facilities that are, or are to be, provided, granted or conferred under— (a) a contract for or in relation to— (i) the performance of work (including work of a professional nature), whether with or without the supply of goods, (ii) the provision of gas or electricity or the provision of any other form of energy, (iii) the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction, or (iv) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (b) a contract of insurance, (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (d) a contract for or in relation to the lending of money, (e) a site agreement (within the meaning of the Residential (Land Lease) Communities Act 2013), or (f) a service contract (within the meaning of the Retirement Villages Act 1999), but does not include the supply of goods or the performance of work under a contract of employment. small business contract has the same meaning as in section 23 (4) of the ACL. statement includes a representation of any kind, whether made by means of— (a) words, maps, plans or drawings, or (b) pictorial representation or design, or by any combination of those means. supplier means a person who, in the course of a business, supplies goods or services. supply includes (except in Part 6A)— (a) in relation to goods— (i) supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase, and (ii) exhibit, expose or have in possession for the purpose of sale, exchange, lease, hire or hire-purchase or for any purpose of manufacture or trade, (b) in relation to services—provide, grant or render for valuable consideration, and (c) in relation both to goods and to services—donate for promotional purposes. the ACL means the Australian Consumer Law (NSW). this Act includes regulations. trade or commerce includes any business or professional activity. Tribunal means the Civil and Administrative Tribunal. unsafe consumer goods means consumer goods that will or may cause injury to any person or a foreseeable use (or misuse) of which will or may cause injury to any person. unsafe product related services means product related services of a particular kind supplied in trade or commerce, a result of the supply of which is that— (a) any consumer goods will or may cause injury to any person, or (b) a reasonably foreseeable use (including misuse) of any consumer goods will or may cause injury to any person. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Sections 2 (2) (Definitions), 11 (References to acquisition, supply and re-supply) and 13 (Loss or damage to include injury) of the ACL apply to all of the provisions of this Act in the same way as those sections apply to the provisions of the ACL. (3)–(5) (Repealed) (6) Where a provision of this Act (other than the ACL) is inconsistent with a provision of an Act specified in Schedule 1 or prescribed for the purposes of this subsection, or a provision of an instrument made under an Act so specified or prescribed, the provision of the Act so specified or prescribed, or of the instrument, prevails. (7) In this Act, a reference to the making of a representation includes a reference to the publishing of a statement. (8) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (9) In this Act, a reference to a particular section of this Act does not include a reference to the same section of the ACL. Note— For example, a reference to section 66 of this Act does not include a reference to section 66 of the ACL. (10) Notes included in this Act do not form part of this Act. Editorial note— References in this Act to any other Act or legislation administered by the Minister are to be construed in accordance with clause 4 of the Administrative Arrangements (Administration of Acts—Amendment No 4) Order 2015. 5 (Repealed) 5A Extraterritorial application (1) This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit. (2) Without limiting subsection (1), this Act extends to conduct either in or outside the State that— (a) is in connection with goods or services supplied in the State, or (b) affects a person in the State, or (c) results in loss or damage in the State. Part 2 Administrative matters Division 1 Secretary and staff 6 Control and direction by Minister The Secretary is, in the exercise of functions as Secretary, subject to the control and direction of the Minister except in relation to the contents of a report or recommendation. 7 (Repealed) 8 Delegation by Secretary (1) The Secretary may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Secretary by or under the following— (a) this Act, (b)–(g) (Repealed) (h) any other Act administered by the Minister, (i) any other Act prescribed by the regulations for the purposes of this section (or the prescribed provisions of any other prescribed Act), (j) the regulations under any such Act. (2) A delegate of the Secretary may sub-delegate a function if authorised in writing to do so by the Secretary. (3) This section does not apply to the functions of the Secretary under section 79A. 9 Functions of Secretary (1) The Secretary may— (a) advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise, (b) make available to consumers, and persons dealing with consumers, general information with respect to— (i) this Act and other legislation administered by the Minister, and (ii) matters affecting the interests of consumers, (c) receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Secretary considers to be appropriate, (d) investigate the matter the subject of a complaint received under paragraph (c) or refer the complaint to a public authority, or any other body, that the Secretary considers to be best able to take action, or provide advice, in relation to the complaint, and (e) make known, for the guidance of consumers and persons dealing with consumers, the rights and obligations arising under laws relating to the interests of consumers. (2) The Secretary shall— (a) keep under critical examination, and from time to time report to the Minister on, the laws in force, and other matters, relating to the interests of consumers, and (b) report to the Minister on matters relating to the interests of consumers that are referred to the Secretary by the Minister, and, for those purposes, may conduct research and make investigations. (3) Where a complaint is received under subsection (1) (c), the Secretary may— (a) investigate the complaint even if it has been referred to a public authority or to another body, or (b) refer the complaint to a public authority, or any other body, even if an investigation of the matter has been commenced or completed by the Secretary. (4) The Secretary is to have regard, in carrying out his or her functions under this Act, to the need for communication, co-operation and co-ordination in relation to relevant co-operative legislative schemes. 9A (Renumbered as section 17AB) 9B Advisory committees (1) The Minister may appoint such advisory committees as the Minister considers appropriate for the purpose of advising the Secretary in relation to matters arising under section 9 (2). (2) An advisory committee may include one or more employees. (3) An advisory committee has such functions in relation to the provision of advice as the Minister directs. (4) The Minister may, at any time, do the following— (a) terminate the appointment of a person as a member of an advisory committee, (b) dissolve an advisory committee. (5) A member of an advisory committee— (a) is entitled to receive such travelling expenses, and (b) except in the case of an employee, is entitled to receive such fees for attending meetings and transacting business of the committee, as are fixed by the Minister. (6) Subject to any directions of the Minister, the procedure of an advisory committee appointed under this section is to be determined by the advisory committee. 10 Exclusion of liability (1) No liability is incurred by the Crown and no personal liability is incurred by— (a) the Minister, the Secretary, an investigator or any other employee, or (b) (Repealed) (c) a member of an advisory committee, for any act done or omitted, or for any statement made or issued, by any of them or by an advisory committee in good faith in the course of the administration or execution of this Act. (2) No liability is incurred by a person for publishing in good faith— (a) a statement referred to in subsection (1), or (b) a fair report or summary of such a statement. (3) In this section— liability includes liability for defamation. 11 Annual reporting information The annual reporting information prepared for the Department under the Government Sector Finance Act 2018 for its annual reporting period is to include a report on the operations of the Secretary during that period. Division 2 Legal assistance 11A Definition of court In this Division— court includes a tribunal. 12 Making of application for legal assistance (1) A person who claims to be a consumer and who— (a) wishes to bring legal proceedings (other than criminal proceedings) arising out of the supply to the person of goods or services or the disposal to the person of an interest in land, or (b) wishes to make an appeal or seek judicial review in relation to legal proceedings of a kind referred to in paragraph (a), or (c) is a party to legal proceedings or proceedings relating to an appeal or review referred to in paragraph (a) or (b), may apply to the Secretary for assistance in the conduct of the proceedings. (2) An application under subsection (1) shall— (a) be in or to the effect of a form approved by the Secretary, (b) include the particulars required to complete the form, and (c) be verified in the manner required by the Secretary. 13 Grant of legal assistance (1) The Secretary may grant an application made under section 12 if— (a) the Secretary is satisfied that the applicant has reasonable grounds for bringing, or being a party to, the proceedings to which the application relates, (b) the Secretary is of the opinion that it is desirable, in the general interests of consumers or of any class of consumers, that assistance should be granted, and (c) (Repealed) (d) the Secretary has received the written approval of the Minister to grant the assistance applied for. (2) The Secretary may refuse assistance if of the opinion that it should not be granted because of the applicant's financial position. (3) The Secretary shall notify an applicant under section 12 of the grant or refusal of the application and, where an application is granted— (a) the applicant shall not, without the consent of the Secretary, withdraw from the proceedings or discharge any Australian legal practitioner to whom the case is assigned under section 14, or any Australian legal practitioner acting in the proceedings, (b) the applicant shall not, except to the extent authorised or required by the Secretary, interfere, or be involved, in the case, and (c) the Secretary has, to the exclusion of the successful applicant, the same control over and the same rights in respect of the case (including the right to settle or compromise any claim arising in the case) as, but for that exclusion, would have been available to the assisted person. (4) Assistance granted under this Division does not extend to expenses other than— (a) the costs of legal representation, and (b) prescribed expenses. (5) Expenses incurred in the provision of assistance under this Division, court fees and any costs required to be met by the Secretary under section 16 shall be met out of money to be provided by Parliament. 14 Assignment to Australian legal practitioner of case of assisted person (1) On granting assistance to a person under section 13, the Secretary shall assign the person's case— (a) with the consent of the Legal Aid Commission of New South Wales—to the Chief Executive Officer of that Commission or a member of its staff, (b) to an Australian legal practitioner employed in the Department, (c) with the consent of the head of another Public Service agency—to an Australian legal practitioner employed in that agency, or (d) to an Australian legal practitioner practising on his or her own account who has indicated to the Secretary a willingness to undertake the conduct of the cases of assisted persons, and shall give to the assisted person written notification of the relevant particulars of the Australian legal practitioner to whom the case has been assigned. (2) The Australian legal practitioner to whom a person's case is assigned under this section may, on behalf of the person, appear in any court and conduct any matter or proceeding relating to the case, either personally or, with the consent of the Secretary, by another Australian legal practitioner. (3) An Australian legal practitioner to whom a case has been assigned under this section may not terminate the assignment without the leave of the Secretary. 15 Court proceedings to which assisted person is a party (1) If proceedings have been brought in a case to which an Australian legal practitioner has been assigned under section 14, the Australian legal practitioner shall, as soon as practicable after the assignment and before taking any other step in the proceedings— (a) serve on the other party or parties to the proceedings, and (b) file in the court in which the proceedings are pending, a notice to the effect that he or she is undertaking the conduct of the case. (2) If a notice is filed under subsection (1)— (a) the proceedings are stayed for a period of 14 days, and (b) unless otherwise ordered by the court—time fixed for the doing of any act or taking any step in the proceedings does not run during that period. (3) The filing of a notice under subsection (1) does not prevent— (a) the making of any interlocutory order which, in the opinion of the court, is necessary to prevent injustice, or (b) unless otherwise ordered by the court, the institution or continuance of proceedings to obtain, enforce or otherwise carry into effect any such order. (4) The period during which proceedings are stayed by subsection (2) may be reduced or extended by order of the court. (5) A fee is not payable for the filing of a notice under subsection (1). (6) If, in proceedings for which a person has been granted assistance under section 13— (a) a party makes a counterclaim, or pleads a set-off, and (b) the counterclaim or set-off does not relate to the supply of goods or services, or the disposal of an interest in land, to the assisted person, the court may, on the application of the Secretary, order that the counterclaim or set-off be dealt with separately, and may make such other orders or give such directions as it thinks fit. 16 Costs and expenses etc relating to proceedings to which assisted person is a party (1) If a person is granted assistance under section 13, the court shall, in making an order for costs— (a) in favour of the assisted person—make the same order (except against another assisted person) as the court would have made in favour of the assisted person if the person had not been an assisted person, or (b) against the assisted person—make the same order (except in favour of another assisted person) as the court would have made against the assisted person if the person had not been an assisted person. (2) If an order for costs is made in accordance with subsection (1) (a)— (a) the costs are payable to the Secretary instead of the person in whose favour the order is made, (b) the costs may be recovered by the Secretary as a debt due to the Crown, and (c) the costs, upon being paid to or recovered by the Secretary, shall be paid into the Consolidated Fund. (3) If an order for costs is made in accordance with subsection (1) (b), the costs shall be paid by the Secretary. (4) Except in the case of costs payable to the Secretary, money awarded by a court in favour of an assisted person is payable to the person without deduction. 17 Privilege attaching to certain relationships The same privileges as those which arise from the relationship of client and Australian legal practitioner acting in his or her professional capacity and in the course of his or her professional employment arise from the relationship between— (a) a person who has applied for assistance under section 12 or who has been granted that assistance under section 13, and (b) the Secretary and the Australian legal practitioner (if any) to whom the person's case is assigned under section 14, and from the relationship between the Secretary and the Australian legal practitioner. 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. 17AB Exchange of information (1) The Secretary may enter into, or approve of, an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the Secretary and the agency. (2) The information to which an information sharing arrangement may relate is limited to the following— (a) information concerning investigations, law enforcement, assessment of complaints, licensing or disciplinary matters, (b) probity assessments and reference checks concerning persons who provide, or propose to provide, goods or services to consumers, (c) any other information affecting the interests of consumers, (d) any other information of a type prescribed by the regulations. (3) Under an information sharing arrangement, the Secretary and the relevant agency are, despite any other Act or law of the State, authorised— (a) to request and receive information held by the other party to the arrangement, and (b) to disclose information to the other party, but only to the extent that the information is reasonably necessary— (c) to assist in the exercise of functions (existing NSW fair trading functions) under this Act (or any other Act administered by the Minister, whether solely or jointly with another Minister) or of the functions of the relevant agency concerned, or (d) to assist in a proposed transfer of existing NSW fair trading functions to the relevant agency concerned or a proposed transfer of functions of the relevant agency concerned to the Minister, Secretary or other fair trading agency of the State. (4) The Secretary may also (whether as part of an information sharing arrangement or otherwise)— (a) refer any matter (including any complaint) with respect to fair trading or that affects the interests of consumers to a fair trading agency or law enforcement agency, and (b) receive any such matter from a fair trading agency or law enforcement agency, and (c) conduct a joint investigation into any such matter with a fair trading agency or law enforcement agency. (5) Any such fair trading agency or law enforcement agency is, despite any other Act or law of the State, authorised to refer such a matter to the Secretary or to conduct an investigation into the matter jointly with the Secretary. (6) This section does not— (a) limit the functions that may be exercised by the Secretary under section 9, or (b) require the Secretary to provide information to a relevant agency only in accordance with an information sharing arrangement where that information can otherwise be lawfully provided, or (c) limit the operation of any other Act or law under which a relevant agency is authorised or required to disclose information to another person or body. (7) In this section— fair trading agency means an agency of the State, or of the Commonwealth, another State or Territory or an overseas jurisdiction, that exercises functions under an enactment with respect to fair trading. information includes reports, recommendations, opinions, assessments and operational plans. law enforcement agency means— (a) the NSW Police Force or the police force of another State or Territory or of an overseas jurisdiction, or (b) the Australian Federal Police, or (c) the New South Wales Crime Commission, or (d) the Australian Crime Commission, or (e) any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction. relevant agency means— (a) a fair trading agency, or (b) a law enforcement agency, or (c) any other agency of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction, or (d) any other person or body that exercises functions, in the public interest, that involve protecting the interests of consumers. Part 2A Provisions relating to investigations Division 1 Powers relating to investigations 17A Definition In this Part, place includes a vehicle, vessel or aircraft. 18 Office and identification of investigator (1) The Secretary may, by order in writing, appoint an employee as an investigator for the purposes of this Act and of any other legislation administered by the Minister and shall provide the employee with a certificate of identification as an investigator. (2) An investigator who exercises in any place or on any land a function conferred by section 19, 19A or 20 shall produce his or her certificate of identification if requested so to do by a person apparently in charge there, or apparently in charge of any work being carried on there. (3) An investigator shall produce his or her certificate of identification if requested so to do by a person required to comply with a notice under section 20. (4) A requirement under any other legislation administered by the Minister that a person who is authorised to exercise a function under the legislation is to produce his or her certificate of identification (however described) before exercising the function is taken to have been complied with if— (a) the person authorised is an investigator, and (b) the person produces his or her certificate of identification as an investigator. 19 Powers of entry (1) The powers conferred by this section may be exercised for the purposes of this Act and any other legislation administered by the Minister but may not be exercised for any other purpose. (2) The power to enter a place or land conferred by this section does not include a power to enter a place that is a dwelling-house or other residential premises unless— (a) the occupier consents, or (b) some manufacture, business or trade is carried on there. (3) An investigator may, at a reasonable time, enter any place that he or she believes on reasonable grounds to be a place where goods are manufactured, prepared, stored or supplied or a place where services are supplied or arranged and— (a) inspect any goods or partly manufactured goods and make such other inspections as he or she considers to be necessary, (b) take any goods, or partly manufactured goods, for which he or she pays a fair price, (c) take a sample of anything from which goods are manufactured or produced in that place, (c1) seize, detain or remove any consumer goods in that place that— (i) the investigator believes, on reasonable grounds, do not comply with a safety standard (within the meaning of section 2 (1) of the ACL), or (ii) are the subject of an interim or permanent ban, or (iii) are the subject of a recall notice, or (iv) the investigator believes, on reasonable grounds, are or are likely to become unsafe, (d) make inquiries of any person employed or engaged in that place, or (e) film, photograph or otherwise record a still or moving image of any thing (other than a document) for the purpose of the investigation of any matter relating to consumer goods or product related services. (4) If an investigator believes on reasonable grounds that there are on any premises documents evidencing— (a) conduct in contravention of this Act or any other legislation administered by the Minister, or (b) the inclusion of an unfair term in a consumer contract or small business contract that is a standard form contract (as referred to in Part 2-3 of the ACL), the investigator may enter the premises and do any of the following— (c) inspect any document, (d) make a copy of, or take an extract from, any document, (e) seize any document, if the investigator believes on reasonable grounds that it is necessary to prevent it being interfered with or to prevent its concealment, loss, deterioration or destruction. (5) An investigator may— (a) at a reasonable time— (i) enter any place that he or she believes on reasonable grounds to be a place where transactions involving the disposal of interests in land are effected, or (ii) enter any land if he or she believes on reasonable grounds that an interest in the land is being, or is proposed to be, disposed of, (b) inspect any documents that are in the place and relate to an interest in land or are on the land and relate to the disposal of an interest in the land, and (c) make inquiries of any person employed or engaged in the place or on the land. (6) An investigator who seizes, detains or removes any goods, or partly manufactured goods, under this section must provide a receipt for the goods. 19A Powers of search and seizure under search warrant (1) In this section— authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002. (2) An investigator may apply to an authorised officer for the issue of a search warrant if the investigator believes on reasonable grounds that— (a) there is evidence of a contravention of a provision of this Act on any place or land, or (a1) there is evidence relating to the inclusion of an unfair term in a consumer contract or small business contract that is a standard form contract (as referred to in Part 2-3 of the ACL), or (b) there are consumer goods of a particular kind being supplied in trade or commerce in or from any place or land that will or may cause injury to any person or a reasonably foreseeable use (or misuse) of which will or may cause injury to any person, or (c) there are product related services of a particular kind being supplied in trade or commerce in or from any place or land and, as a result of those services being supplied— (i) any consumer goods will or may cause injury to any person, or (ii) a reasonably foreseeable use (including misuse) of any consumer goods will or may cause injury to any person. (3) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any investigator— (a) to enter the place or land specified in the warrant, and (b) to search for evidence of any of the matters referred to in subsection (2), and (c) to exercise the powers of an investigator under subsection (4). (4) An investigator executing a search warrant issued under this section may— (a) examine anything (whether or not specified in the warrant) that the investigator believes on reasonable grounds may provide evidence of any of the matters referred to in subsection (2), and (b) seize anything (whether or not specified in the warrant) that the investigator believes on reasonable grounds is connected with any of the matters referred to in subsection (2). (5) The power to seize anything that is connected with a matter referred to in subsection (2) includes a power to seize anything that will provide evidence of that matter. (6) An investigator who seizes any consumer goods, or equipment used in the manufacturing, processing or storage of consumer goods, under this section must provide a receipt for the goods or equipment. (7) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (8) Nothing in this section limits any of the other functions that may be exercised by an investigator under this Part. 20 Power to obtain information, documents and evidence (1) This section applies only to a person who is, on reasonable grounds, believed by the Secretary to be capable of giving information, producing documents or giving evidence in relation to— (a) a possible contravention of this Act or any other legislation administered by the Minister, or (a1) the possible inclusion of an unfair term in a consumer contract or small business contract that is a standard form contract (as referred to in Part 2-3 of the ACL), or (b) a matter that may lead to the reference of a question to an advisory committee, or (c) a matter that is the subject of a complaint received by the Secretary under section 9 (1) (c), or (d) a matter that is the subject of an investigation by the Secretary under section 9 (2), or (e) unsafe consumer goods, or (f) unsafe product related services. (2) An investigator or the Secretary may, by notice in writing served on a person to whom this section applies, require the person— (a) to give an investigator or the Secretary, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any information referred to in subsection (1) of which the person has knowledge, (b) to produce to an investigator or the Secretary, in accordance with the notice, any documents referred to in subsection (1), or (c) to appear before an investigator, the Secretary or an authorised person at a time and place specified in the notice and give either orally or in writing any evidence referred to in subsection (1) and produce any documents so referred to. (3) A person shall not— (a) refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it, or (b) in purported compliance with such a notice, knowingly give information or produce a document, or give evidence, that is false or misleading. Maximum penalty—20 penalty units. (4) A person is not excused from giving information or producing a document, or from giving evidence, in response to a notice under this section on the ground that the information, document or evidence may tend to incriminate the person. (5) Any information, document or evidence obtained from a person in response to a notice under this section is inadmissible against the person in criminal proceedings other than proceedings for a contravention of subsection (3). (6) Despite section 8 of this Act, the Secretary may only delegate his or her functions under this section to a person who is an employee. (7) If requested to do so by a person required to comply with a notice given under this section by a delegate of the Secretary, the delegate must provide the person with evidence of that person's identity and evidence of the delegation that enables the delegate to give the notice. 21 Inspection of documents by Secretary and others (1) The Secretary, an authorised person or an investigator may inspect a document produced in response to a notice under section 20 of this Act or section 219 of the ACL and may make copies of, or take extracts from, the document. (2) The Secretary or an investigator may— (a) take possession, and (b) retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under section 20 of this Act or section 219 of the ACL if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an employee to be a true copy. (3) A certified copy provided under subsection (2) is receivable in all courts as if it were the original. (4) Until a certified copy of a document is provided under subsection (2), the person having possession of the document shall, at such times and places as he or she thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by the person so entitled, to inspect the document and make copies of, or take extracts from, the document. 22 Preservation of secrecy (1) Except as provided by subsection (4), a person engaged in the administration of this Act shall not— (a) in the course of that administration, disclose to another person so engaged any information or evidence given, or the contents of any document produced, in response to a notice under section 20 of this Act or section 219 of the ACL without informing the other person that the information or evidence was so given, or the document so produced, or (b) otherwise than in the course of that administration, disclose any such information, evidence or contents to any person without the written permission of the Minister given in relation to the disclosure. Maximum penalty—20 penalty units. (2) A person who was, but is no longer, engaged in the administration of this Act shall not, without the written permission of the Minister, disclose to any other person any information or evidence given, or the contents of any document produced, in response to a notice under section 20 of this Act or section 219 of the ACL that came to his or her knowledge in the course of that administration. Maximum penalty—20 penalty units. (3) The Minister may grant the permission referred to in subsection (1) or (2) only if the Minister is satisfied that to do so would be in the public interest. (4) It is not a contravention of subsection (1) or (2)— (a) if the Secretary communicates to the appropriate Minister or officer of the Crown in right of this or any other State, or of the Commonwealth or any of its Territories, any information or evidence given, or the contents of any document produced, in response to a notice under section 20 of this Act or section 219 of the ACL, or (b) if, in any legal proceedings, a person discloses any such information, evidence or contents in answering a question that the person is compellable to answer in those proceedings. 23 Obstruction etc of employees (1) A person shall not— (a) hinder or obstruct an employee in a manner that interferes with the performance by the employee of his or her duties, (b) assault an employee performing his or her duties, or (c) being the occupier or person in charge of any place or land entered by an employee under a power conferred by this Act, fail to provide the employee with all reasonable facilities and assistance for the effective exercise of the employee's powers under this Act. Maximum penalty—20 penalty units or imprisonment for 6 months, or both. (2) The reference in subsection (1) to an employee is a reference to any employee and is not limited to an employee who is an investigator. Division 2 Seized property and disposal of certain property 23A Dealing with property (1) This section applies to— (a) anything seized under the authority of a search warrant issued for the purposes of section 19A, and (b) anything that has been obtained by the Secretary or an investigator in the course of an investigation under this Act. (2) Anything to which this section applies must be returned to the person who had lawful possession of the thing before it was seized or obtained by the Secretary or an investigator if its retention as evidence in proceedings for an offence against this or any other Act is not required. (3) The Secretary may order that anything seized, or obtained in the course of an investigation under this Act, be sold, destroyed or otherwise disposed of if— (a) the thing is no longer required to be retained as evidence in proceedings for an offence against this or any other Act, and (b) the person who had lawful possession of the thing before it was seized or obtained cannot be found or does not wish to have the thing returned. (4) If the thing is disposed of by way of sale, the proceeds of sale are to be paid to the Treasurer for payment into the Consolidated Fund. (5) This section does not apply to the following consumer goods— (a) consumer goods that are the subject of an application under section 23B that has not been determined, (b) consumer goods that are the subject of an order under that section authorising their disposal, (c) consumer goods which the Secretary is satisfied are unsafe consumer goods. 23B Court orders relating to disposal of certain consumer goods (1) This section applies to consumer goods if— (a) the consumer goods do not comply with a safety standard that is in force for consumer goods of that kind and the cause of that non-compliance cannot be remedied, or (b) a permanent ban on consumer goods of that kind is in force, or (c) a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied, or (d) the consumer goods are unsafe consumer goods. (2) A court may make an order under this section only on the application of the Secretary. (3) If the court is satisfied that a person possesses or has control of consumer goods of a particular kind to which this section applies for the purposes of trade or commerce, the court may make an order authorising one or more investigators to do the following in accordance with any requirements specified in the order— (a) to enter the premises of the person that are specified in the order, (b) to search the premises for consumer goods of a kind specified in the order and seize any such consumer goods that are found at those premises, (c) to destroy or otherwise dispose of any such consumer goods that are so seized. (4) The court may make an order authorising an investigator to destroy or otherwise dispose of any consumer goods to which this section applies that have been seized by an investigator under the authority of a search warrant issued under section 19A or obtained in the course of an investigation under this Act. (5) Before making an application under this section, the Secretary must— (a) take reasonable steps to discover who has an interest in the consumer goods, and (b) if it is practicable to do so, notify each person whom the Secretary believes to have such an interest of the proposed application. (6) The Secretary must, in the application, identify each person who the Secretary believes has an interest in the consumer goods concerned and whom it was not considered practicable to notify. (7) A person who establishes to the satisfaction of the court that he or she has an interest in the consumer goods concerned is entitled to be heard in relation to the application. (8) If goods are seized and disposed of by an investigator in accordance with an order under this section, the person from whom the goods were seized or, if that person was not entitled to possession of the goods, the owner of the goods is liable to pay the costs reasonably incurred by the investigator in seizing and disposing of the goods. (9) An amount payable by a person under this section may be recovered as a debt due to the Crown in a court of competent jurisdiction. 23C (Repealed) Division 3 Embargo notices 23D Embargo notices (1) An investigator may give an embargo notice in relation to consumer goods to an occupier of premises if the investigator has reasonable grounds to believe that— (a) the consumer goods are being manufactured, prepared, stored on or supplied from the premises in trade or commerce and the consumer goods— (i) do not comply with a safety standard (within the meaning of section 2 (1) of the ACL), or (ii) are the subject of an interim or permanent ban, or (iii) are the subject of a recall notice, or (iv) are or are likely to become unsafe, and (b) it is not practicable to seize and remove the consumer goods or equipment used in the manufacturing, processing, storage or supply of the consumer goods. (1A) An investigator may give an embargo notice in relation to product related services to an occupier of premises if the investigator reasonably believes that— (a) product related services are being supplied from the premises in trade or commerce, and (b) the product related services are unsafe, and (c) it is not practicable to seize and remove equipment used in connection with the supply of those unsafe product related services. (2) An embargo notice may do any one or more of the following— (a) require that 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, (b) require that specified equipment— (i) used in the manufacturing, processing or storage of specified consumer goods, or (ii) used in connection with the supply of specified product related services, must not be transferred, moved, altered, destroyed or otherwise interfered with during the period specified in the notice, (c) require that specified product related services must not be supplied in or from the premises during the period specified in the notice. (3) An embargo notice must— (a) be in writing, and (b) explain the effect of section 23G. (4) The investigator may give an embargo notice to the occupier of the premises— (a) by causing a copy of the notice to be served on the occupier, or (b) if the occupier cannot be located after reasonable steps have been taken to do so, by causing a copy of the notice— (i) to be served on a person on the premises who is reasonably believed to be in regular contact with the occupier, or (ii) to be affixed to the premises, or to a thing on the premises, in a prominent position. (5) Despite anything in any other law, a contract for a supply of consumer goods or product related services that is prohibited by an embargo notice is void. (6) If consumer goods are supplied in contravention of an embargo notice— (a) the supplier must immediately return or refund to the person who acquired the goods any consideration (or the value of any consideration) that that person gave— (i) under an agreement for the supply, or (ii) under a related contract or instrument, and (b) if the goods have been removed from the premises in which they were subject to the embargo notice, the person who acquired the goods must— (i) return the goods to the premises, or (ii) notify the supplier of the place where the supplier may collect the goods, and (c) if paragraph (b) (ii) applies, the supplier must collect the goods from the place notified to the supplier and return them to the premises. 23E Embargo period for embargo notices (1) The embargo period specified in an embargo notice must not be longer than— (a) in a case where the investigator giving the notice secures consumer goods or equipment under this Division—24 hours, or (b) in any other case—28 days. (2) However, an investigator may, before the embargo period ends, apply to a Magistrate for an extension of the period. (3) If an investigator intends to make an application to extend the embargo period, the investigator must, before making the application, notify the occupier of the premises to which the embargo notice relates of that intention. (4) The occupier of the premises is entitled to be heard in relation to the application. (5) The Magistrate may extend the embargo period for a specified period if satisfied that the extension is necessary in all the circumstances. 23F Multiple embargo notices for the same consumer goods or product related services An investigator must not give an embargo notice in relation to consumer goods, equipment or product related services of a particular kind if— (a) an embargo notice has already been given in relation to consumer goods, equipment or product related services of that kind, and (b) the embargo period for the embargo notice that has been given ended less than 5 days earlier. 23G Powers of investigators to secure consumer goods (1) This section applies if— (a) an embargo notice has been issued in relation to consumer goods or equipment, and (b) the investigator who gave the notice believes on reasonable grounds that it is necessary to secure the consumer goods or equipment in order to ensure that the notice is complied with. (2) The investigator may, during the embargo period for the embargo notice, do anything that the investigator thinks is necessary to secure those consumer goods or that equipment (whether by locking them up, placing a guard or otherwise). 23H Consent to deal with embargoed consumer goods or equipment or supply product related services (1) If an embargo notice relating to consumer goods or equipment has been given, the owner of the goods or equipment or another person who has an interest in the goods or equipment may, in writing, request consent to do any of the following— (a) to supply the goods, (b) to transfer, move, alter, destroy or otherwise interfere with the goods or equipment. (2) If an embargo notice relating to product related services has been given, the following persons may, in writing, request consent to supply the services— (a) the person who would, but for the embargo notice, supply the services, (b) another person whose interests would be affected if the services were not supplied. (3) Consent under this section may only be given by the Minister, the Secretary or an investigator and must be in writing. 23I Compliance with embargo notices (1) A person must not knowingly cause or permit anything to be done in contravention of an embargo notice. Maximum penalty— (a) in the case of a person other than a body corporate—40 penalty units, or (b) in the case of a body corporate—200 penalty units. (2) Subsection (1) does not apply in relation to— (a) an act done in accordance with a consent given under section 23H, or (b) if the embargo notice relates to consumer goods or equipment, an act done for the purpose of protecting or preserving the consumer goods or equipment. Part 2B 24–25L (Repealed) Part 3 The Australian Consumer Law Division 1 Definitions 26 Definitions (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 27. 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 NSW legislation website. State includes a Territory. Territory means the Australian Capital Territory or the Northern Territory of Australia. this jurisdiction means New South Wales. (2) Terms used in this Part and also in the Australian Consumer Law (NSW) 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 27 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. 28 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 (NSW), and (c) as so applying is a part of this Act. (2) This section has effect subject to sections 29, 30 and 31. 29 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 28 if