Queensland: Fair Trading Act 1989 (Qld)

Fair Trading Act 1989 An Act to make provision with respect to certain unfair or undesirable trade practices, to regulate the supply of goods and services, to provide for a commissioner for fair trading and for related purposes Part 1 Preliminary 1 Short title and citation This Act may be cited as the Fair Trading Act 1989. 2 [Repealed] 3 Objective of this Act The principal objective of this Act is to improve consumer wellbeing through consumer empowerment and protection, fostering effective competition and enabling the confident participation of consumers in markets in which both consumers and suppliers trade fairly. 4 This part does not apply for the Australian Consumer Law (Queensland) This part (other than sections 1 and 3) does not apply for the interpretation or operation of the Australian Consumer Law (Queensland). Example— The definitions in section 5 of this Act do not apply for the interpretation of the Australian Consumer Law (Queensland). That law has its own list of definitions in section 2 of that law. 4A Application of Act (1) This Act applies to and in relation to— (a) persons carrying on business within Queensland; or (b) bodies corporate incorporated or registered under the law of Queensland; or (c) persons ordinarily resident in Queensland; or (d) persons otherwise connected with Queensland. (2) Subject to subsection (1), this Act extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside Queensland (whether within or outside Australia). 4B Reference to this Act or to a particular provision of the Australian Consumer Law (Queensland) (1) To remove any doubt, a reference in this Act to this Act may be taken to include a reference to the Australian Consumer Law (Queensland). Example— Section 90 (Power to obtain information) refers to any matter relevant to the operation or enforcement of this Act, which would include any matter relevant to the operation or enforcement of the Australian Consumer Law (Queensland). (2) In this Act, a reference to a particular provision of the Australian Consumer Law (Queensland) is a reference to the provision of that number in schedule 2 of the Competition and Consumer Act, applying as a law of Queensland under part 3. 5 Definitions In this Act— ACL(Q) means the Australian Consumer Law (Queensland). acquire, in relation to services, includes accept. application law, for part 3, see section 14(1). Australian Consumer Law (Queensland) means the Australian Consumer Law (Queensland) as provided for in part 3. Australian Consumer Law text see section 14(1). code of practice means a code of practice prescribed by regulation under section 88A. commissioner means the commissioner for fair trading. Competition and Consumer Act means the Competition and Consumer Act 2010 (Cwlth). consumer has the same meaning as it has in the Australian Consumer Law (Queensland). consumer contract has the same meaning as it has in the Australian Consumer Law (Queensland). District Court means the District Court of Queensland. embargo notice see section 39(1). embargo period, for an embargo notice, means the period stated in the embargo notice under section 39(4)(c) or (d). evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer. extended application see section 56(1). FTA consumer offence provision means— (a) section 84(1); or (b) section 86. FTA offence provision means— (a) an FTA consumer offence provision; or (b) section 45; or (c) section 47; or (d) section 90(4); or (e) section 91; or (f) section 92(1)(b), (c), (d) or (e); or (g) section 92B; or (h) section 104; or (i) section 105. goods has the same meaning as it has in the Australian Consumer Law (Queensland). infringement notice means an infringement notice issued under section 31(1). infringement notice compliance period see section 36(1). infringement notice provision see section 31(2). inspector means— (a) the commissioner; or (b) an inspector appointed for the purposes of this Act. instrument, for part 3, see section 14(1). Intergovernmental Agreement, for part 3, see section 14(1). involved, in relation to a contravention, or conduct that constitutes a contravention, of a provision of this Act, has the same meaning as it has in the Australian Consumer Law (Queensland) in relation to a contravention, or conduct that constitutes a contravention, of a provision of that law. jurisdiction see section 14(1). law, for part 3, see section 14(1). listed corporation has the meaning given by the Corporations Act, section 9. Magistrates Court has the meaning given by the Acts Interpretation Act 1954, schedule 1. Note— The Competition and Consumer Act confers jurisdiction on the Federal Magistrates Court for particular matters arising under the Australian Consumer Law applying as a law of the Commonwealth, but that court does not have jurisdiction in relation to matters arising under the Australian Consumer Law (Queensland). modifications, for part 3, see section 14(1). month, for part 3, see section 14(1). participating jurisdiction, for part 3, see section 14(1). premises has the same meaning as it has in the Australian Consumer Law (Queensland). product related service has the same meaning as it has in the Australian Consumer Law (Queensland). published, in relation to a statement, includes— (a) inserted in a publication; and (b) publicly exhibited in any place; and (c) contained in a document or other thing capable of providing information that is given or sent to any person or left at the person's address; and (d) broadcast by radio or television or otherwise publicly announced by any means; and (e) reproduced electronically. records includes any record of information however compiled, recorded or stored and any books, documents or writings. send includes deliver. services has the same meaning as it has in the Australian Consumer Law (Queensland). State, for part 3, see section 14(1). supply has the same meaning as it has in the Australian Consumer Law (Queensland). Supreme Court means the Supreme Court of Queensland. Territory, for part 3, see section 14(1). the tribunal means QCAT. this jurisdiction, for part 3, see section 14(1). trade or commerce has the same meaning as it has in the Australian Consumer Law (Queensland). 5A Engaging in conduct and related matters The Australian Consumer Law (Queensland), section 2(2) applies for the interpretation of this Act in relation to the matters mentioned in it. 5B [Repealed] 5C Further meaning of acquisition or supply of services In this Act— (a) a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services; and (b) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both. 5D Meaning of loss or damage and amount of loss or damage In this Act— (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury. 5E [Repealed] 5F [Repealed] 5G [Repealed] 6 [Repealed] 7 Crown bound This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities, subject to the following— (a) the Crown shall not be liable to a penalty for a contravention of this Act; (b) an agent of the Crown who contravenes this Act shall be liable for any penalty prescribed by this Act in relation to such a contravention. Part 2 Commissioner for fair trading 8 Commissioner for fair trading (1) There is to be a commissioner for fair trading. (2) Subject to subsection (3), the person who is the chief executive is, without further appointment, also the commissioner for fair trading. (3) If the chief executive appoints another person to be the commissioner, that person is the commissioner while the appointment is in force. (4) A person may hold the office of commissioner as well as holding an office under the Public Sector Act 2022. (5) Judicial notice must be taken of the commissioner's signature. 9 Other officers The inspectors and other officers necessary to assist the commissioner are to be appointed under the Public Sector Act 2022. 10 Delegation by commissioner The commissioner may delegate the commissioner's powers under this or another Act to a public service officer employed in the department. 11 Functions of commissioner (1) The functions of the commissioner are— (a) to administer the provisions of this Act and to facilitate its operation; and (b) to promote the interests of consumers and persons negotiating or considering the acquisition of goods or services as consumers and to assist them to a greater awareness in relation to their assessment and use of goods or services; and (c) to collect, examine and disseminate information in respect of matters affecting or likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers; and (d) to receive and consider complaints concerning matters affecting or likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and, if the commissioner is of the opinion that such action is warranted, to investigate the complaints and take such action in respect of the matter as seems proper to the commissioner; and (e) to investigate fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and to take such action in respect of the practices as seems proper to the commissioner; and (f) to advise and assist persons who seek from the commissioner information or guidance on matters affecting or likely to affect their interests as consumers or as persons negotiating or considering the acquisition of goods or services as consumers; and (g) to encourage and undertake the dissemination of information concerning consumer affairs to producers, manufacturers and suppliers of goods or services; and (h) to take action to promote and ensure safety in the supply of goods and services; and (i) to administer such provisions of other Acts and discharge such other functions as the Minister may direct the commissioner to administer or discharge. (2) Subsection (1) shall not be construed to require the commissioner or any officer of the department to give, or hold himself or herself out as ready or competent to give, to any person advice concerning the rights and liabilities in law of the person concerning any matter, or to aid in the enforcement of the rights of the person. 12 Acting inspectors The Minister or the commissioner may appoint in writing any person who holds for the time being any office under the Crown in right of the State to act as an inspector for the purposes of this Act. 13 Aid by government departments in supplying information Except in respect of information which under any Act is not to be divulged, the chief executive of each department shall cooperate and shall cause the officers under the chief executive's control to cooperate with the commissioner and shall render assistance in the provision of information required by the commissioner for the purposes of this Act. Part 3 The Australian Consumer Law Division 1 Definitions 14 Definitions for pt 3 (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 15. 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. notification, for a regulation, see the Statutory Instruments Act 1992, section 47. 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. State includes a Territory. Territory means the Australian Capital Territory or the Northern Territory of Australia. this jurisdiction means Queensland. (2) Terms used in this part and also in the Australian Consumer Law (Queensland) 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 15 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. 16 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 (Queensland); and (c) as so applying is a part of this Act. (2) This section has effect subject to sections 17, 18 and 19. 17 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 16 if the modification is declared by a regulation under this Act to be excluded from the operation of that section. (2) A regulation under subsection (1) has effect only if its making is notified no later than 2 months after the date of the modification. (3) Subsection (1) ceases to apply to the modification if a further regulation under this Act 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. 18 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction In the Australian Consumer Law (Queensland)— regulator means the commissioner for fair trading under this Act. 19 Interpretation of Australian Consumer Law (1) The Acts Interpretation Act 1901 (Cwlth) applies as a law of this jurisdiction to the Australian Consumer Law (Queensland). (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 (Queensland) were a Commonwealth Act; and (b) the regulations in the Australian Consumer Law (Queensland) or instruments under that law were regulations or instruments under a Commonwealth Act. (3) The Acts Interpretation Act 1954 of Queensland does not apply to— (a) the Australian Consumer Law (Queensland); or (b) any instrument under that law. 20 Application of Australian Consumer Law (1) The Australian Consumer Law (Queensland) 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 (Queensland) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia). Division 2A [Repealed] Division 2B [Repealed] Division 3 References to Australian Consumer Law 21 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. 22 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 jurisdictions 23 Division does not apply to Commonwealth In this division, participating jurisdiction or other jurisdiction does not include the Commonwealth. 24 Application law of this jurisdiction The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) this jurisdiction and each other jurisdiction, so far as the jurisdiction carries on a business, either directly or by an authority of the jurisdiction concerned. 25 Application law of other jurisdictions (1) The application law of each participating jurisdiction other than this jurisdiction binds this jurisdiction, so far as this jurisdiction 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 this jurisdiction, this jurisdiction is subject to that provision despite any prerogative right or privilege. 26 Activities that are not business (1) For the purposes of sections 24 and 25, 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 same jurisdiction (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 a State and 1 or more non-commercial authorities of that State; or (iv) only non-commercial authorities of the same State; (d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because— (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 24 and 25. (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. 27 Jurisdictions not liable to penalty or prosecution (1) Nothing in the application law of this jurisdiction makes any jurisdiction 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 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 28 Conferral of functions and powers on certain bodies (1) The authorities and officers of the Commonwealth referred to in the Australian Consumer Law (Queensland) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (Queensland). (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. 29 No doubling-up of liabilities (1) If— (a) an act or omission is an offence against the Australian Consumer Law (Queensland) 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 (Queensland). (2) If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (Queensland) in respect of the same conduct. Division 6 [Repealed] Part 3A Provisions supporting application of Australian Consumer Law as a law of Queensland Division 1 Infringement notices 30 Purpose and effect of this division (1) The purpose of this division is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under the Australian Consumer Law (Queensland), section 224. (2) This division does not— (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or (b) affect the liability of a person to proceedings under the Australian Consumer Law (Queensland), chapter 4 or chapter 5, part 5-2 in relation to an alleged contravention of an infringement notice provision if— (i) an infringement notice is not issued to the person for the alleged contravention; or (ii) an infringement notice issued to a person for the alleged contravention is withdrawn under section 37; or (c) prevent a court from imposing a higher penalty than the penalty stated in the infringement notice if the person does not comply with the notice. 31 Issuing infringement notice (1) If the commissioner has reasonable grounds to believe that a person has contravened an infringement notice provision, the commissioner may issue an infringement notice to the person. (2) Each of the following is an infringement notice provision— (a) any of the following provisions of the Australian Consumer Law (Queensland)— (i) a provision of chapter 2, part 2-2; (ii) a provision of chapter 3, part 3-1 (other than section 32(1), 35(1), 36(1), (2) or (3), 40 or 43); (iii) section 66(2); (iv) a provision of chapter 3, part 3-2, division 2 (other than section 85); (v) a provision of chapter 3, part 3-2, division 3 (other than section 96(2)); (vi) section 99B(1), 99C, 99D(1), 99E or 99F(2); (vii) section 100(1) or (3), 101(3) or (4), 102(2) or 103(2); (viii) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2); (ix) section 221(1) or 222(1); (b) an FTA consumer offence provision. (3) The commissioner must not issue more than 1 infringement notice to the person for the same alleged contravention of the infringement notice provision. (4) The infringement notice does not have any effect if the notice— (a) is issued more than 1 year after the day on which the contravention of the infringement notice provision is alleged to have occurred; or (b) relates to more than 1 alleged contravention of an infringement notice provision by the person. 32 Matters to be included in infringement notice An infringement notice must— (a) be identified by a unique number; and (b) state the day on which it is issued; and (c) state the name and address of the person to whom it is issued; and (d) identify the commissioner; and (e) state how the commissioner may be contacted; and (f) give details of the alleged contravention by the person, including— (i) the date of the alleged contravention; and (ii) the particular infringement notice provision that was allegedly contravened; and (g) state the maximum pecuniary penalty that the court could order the person to pay under the Australian Consumer Law (Queensland), section 224 for the alleged contravention; and (h) state the penalty that is payable in relation to the alleged contravention; and (i) state that the penalty is payable within the infringement notice compliance period for the notice; and (j) state that the penalty is payable to the commissioner on behalf of the State; and (k) explain how payment of the penalty is to be made; and (l) explain the effect of sections 34, 35, 36 and 37. 33 Amount of penalty (1) The penalty to be stated in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law (Queensland), must be a penalty equal to the amount worked out using the following table— Amount of penalty Item If the infringement notice is for an alleged contravention of one of the following provisions of the Australian Consumer Law (Queensland) ... the amount is ... 1 a provision of chapter 2, part 2-2 (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. 2 a provision of chapter 3, part 3-1 (other than section 32(1), 35(1), 36(1), (2) or (3), 40, 43 or 47(1)) (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. 3 section 47(1) (a) if the person is a body corporate—10 penalty units; or (b) if the person is not a body corporate—2 penalty units. 4 section 66(2) (a) if the person is a body corporate—55 penalty units; or (b) if the person is not a body corporate—11 penalty units. 5 a provision of chapter 3, part 3-2, division 2 (other than section 85) (a) if the person is a body corporate—60 penalty units; or (b) if the person is not a body corporate—12 penalty units. 6 a provision of chapter 3, part 3-2, division 3 (other than section 96(2)) (a) if the person is a body corporate—55 penalty units; or (b) if the person is not a body corporate—11 penalty units. 6A section 99B(1), 99C, 99D(1), 99E or 99F(2) (a) if the person is a body corporate—55 penalty units; or (b) if the person is not a body corporate—11 penalty units. 7 section 100(1) or (3) or 101(3) or (4) (a) if the person is a body corporate—20 penalty units; or (b) if the person is not a body corporate—4 penalty units. 8 section 102(2) or 103(2) (a) if the person is a body corporate—60 penalty units; or (b) if the person is not a body corporate—12 penalty units. 9 section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5) or 119(1) or (2) (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. 10 section 125(4) (a) if the person is a body corporate—30 penalty units; or (b) if the person is not a body corporate—6 penalty units. 11 section 127(1) or (2) (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. 12 section 128(2) or (6), 131(1) or 132(1) (a) if the person is a body corporate—30 penalty units; or (b) if the person is not a body corporate—6 penalty units. 13 section 136(1), (2) or (3) or 137(1) or (2) (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. 14 section 221(1) (a) if the person is a body corporate—30 penalty units; or (b) if the person is not a body corporate—6 penalty units. 15 section 222(1) (a) if the person is a body corporate—50 penalty units; or (b) if the person is not a body corporate—10 penalty units. (2) The penalty to be stated in an infringement notice that is to be issued to a person, in relation to an alleged contravention of an FTA consumer offence provision, must be— (a) if the person is a listed corporation—600 penalty units; or (b) if the person is a body corporate other than a listed corporation—60 penalty units; or (c) if the person is not a body corporate—12 penalty units. (3) For this section, the value of a penalty unit is the same value it has for the time being under the Crimes Act 1914 (Cwlth) for a law of the Commonwealth. 34 Effect of compliance with infringement notice (1) This section applies if— (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and (b) the person pays the penalty stated in the infringement notice within the infringement notice compliance period and as required by the notice; and (c) the infringement notice is not withdrawn under section 37. (2) The person is not, merely because of the payment, regarded as— (a) having contravened the infringement notice provision; or (b) having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision. (3) No proceedings (whether criminal or civil) may be started or continued against the person, by or for the State, in relation to— (a) the alleged contravention of the infringement notice provision; or (b) an offence constituted by the same conduct that constituted the alleged contravention. 35 Effect of failure to comply with infringement notice (1) This section applies if— (a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and (b) the person fails to pay the penalty stated in the infringement notice within the infringement notice compliance period and as required by the notice; and (c) the infringement notice is not withdrawn under section 37. (2) The person is liable— (a) to be proceeded against under the Australian Consumer Law (Queensland), chapter 5, part 5-2 in relation to the alleged contravention of the infringement notice provision; or (b) if the contravention also constitutes the commission of an offence provided for in the Australian Consumer Law (Queensland), chapter 4—to be proceeded against for the commission of the offence; or (c) if the contravention also constitutes the commission of an offence against an FTA consumer offence provision—to be proceeded against for the commission of the offence. 36 Infringement notice compliance period for infringement notice (1) Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the commissioner. (2) The commissioner may extend, by notice in writing, the infringement notice compliance period for the notice if the commissioner is satisfied that it is appropriate to do so. (3) Only 1 extension may be given and the extension must not be for more than 28 days. (4) Notice of the extension must be given to the person who was issued the infringement notice. (5) A failure to comply with subsection (4) does not affect the validity of the extension. (6) If the commissioner extends the infringement notice compliance period for an infringement notice, a reference in this division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended. 37 Withdrawal of infringement notice (1) The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the commissioner seeking the withdrawal of the infringement notice. (2) Evidence or information that the person, or a representative of the person, gives to the commissioner in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading). (3) The commissioner may, by written notice (the withdrawal notice) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the commissioner is satisfied that it is appropriate to do so. (4) Subsection (3) applies whether or not the person has made representations seeking the withdrawal. (5) The withdrawal notice must state— (a) the name and address of the person; and (b) the day on which the infringement notice was issued to the person; and (c) that the infringement notice is withdrawn; and (d) that proceedings under the Australian Consumer Law (Queensland), chapter 4 or chapter 5, part 5-2 may be started or continued against the person in relation to— (i) the alleged contravention of the infringement notice provision; or (ii) an offence constituted by the same conduct that constituted the alleged contravention. (6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice. (7) If the infringement notice is withdrawn after the person has paid the penalty stated in the infringement notice, the commissioner must refund to the person an amount equal to the amount paid. Division 2 Embargo notices 38 Definition for div 2 In this division— services includes product related services. 39 Embargo notices (1) An inspector who enters premises under section 89 may give an embargo notice to the occupier of the premises in relation to the supply of goods or services from the premises. (2) The inspector may give the embargo notice to the occupier only if the inspector is satisfied on reasonable grounds— (a) to the extent the embargo notice relates to goods—that the goods have been supplied, or offered to be supplied, from the premises in contravention of this Act; and (b) to the extent the embargo notice relates to services—that the services have been supplied, or offered to be supplied, from the premises in contravention of this Act. (3) The inspector may give the 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 all reasonable steps have been taken to do so—by causing a copy of the notice to be— (i) served on a person on the premises who is reasonably believed to be in regular contact with the occupier; or (ii) affixed to the premises, or to a thing on the premises, in a prominent position. (4) The embargo notice must— (a) be in writing; and (b) state the goods and services to which the notice relates; and (c) if the notice relates to goods—state that the stated goods must not be— (i) supplied in or from the premises; or (ii) transferred, moved, altered, destroyed or otherwise interfered with; during the period stated in the notice; and (d) if the notice relates to services—state that the stated services must not be supplied in or from the premises during the period stated in the notice; and (e) explain the effect of— (i) for goods—section 42; or (ii) for services—section 43. (5) Despite anything in any other law, a contract for the supply of goods or services that is prohibited by an embargo notice is void. (6) If 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 the 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. 40 Embargo period for embargo notice (1) Subject to this section, the embargo period for an embargo notice must not be longer than— (a) if the inspector giving the notice secures goods under section 42 or secures equipment under section 43—24 hours; or (b) otherwise—28 days. (2) An inspector may, before the embargo period ends, apply to a Magistrates Court for an extension of the period. (3) If an inspector intends to make an application under subsection (2), the inspector 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 court may extend the embargo period for a stated period if the judge is satisfied that the extension is necessary in all the circumstances. 40A [Repealed] 41 Multiple embargo notice for supply of the same kind of goods or services from the same premises If an inspector has given an embargo notice (the earlier embargo notice), an inspector must not give another embargo notice (the later embargo notice) if— (a) the later embargo notice would relate to goods or services of the same kind, and to the same premises, as the earlier embargo notice related to; and (b) the embargo period for the earlier embargo notice did not end at least 5 days ago. 42 Power of inspector to secure goods If— (a) an embargo notice relates to goods; and (b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure the goods in order to ensure that the notice is complied with; the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure the goods (whether by locking them up, placing a guard or otherwise). 43 Power of inspector to secure equipment used to supply services If— (a) an embargo notice relates to services; and (b) the inspector who gives the notice believes on reasonable grounds that it is necessary to secure equipment used to supply the services in order to ensure that the notice is complied with; the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure the equipment (whether by locking it up, placing a guard or otherwise). 44 Approval relating to embargoed goods or services (1) If an embargo notice relating to goods has been given, the owner of the goods or another person who has an interest in the goods may, in writing, ask the commissioner for approval to do any of the following— (a) supply the goods; (b) transfer, move, alter, destroy or otherwise interfere with the goods. (2) If an embargo notice relating to services has been given, the following persons may, in writing, ask the commissioner for approval 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) If a request for an approval is made under subsection (1) or (2), the requested approval may be given, in writing, by the commissioner. 45 Compliance with embargo notice (1) A person commits an offence if— (a) the person knows that an embargo notice has been given; and (b) the person, contrary to the embargo notice, does an act or omits to do an act. Maximum penalty— (a) if the person is a body corporate—200 penalty units; or (b) if the person is not a body corporate—40 penalty units. (2) A person commits an offence if— (a) the person knows that an embargo notice has been given; and (b) the person causes another person to do an act or to omit to do an act; and (c) doing the act, or omitting to do the act, is contrary to the embargo notice. Maximum penalty— (a) if the person is a body corporate—200 penalty units; or (b) if the person is not a body corporate—40 penalty units. (3) Subsections (1) and (2) do not apply in relation to— (a) an act done under an approval given under section 44; or (b) if the embargo notice relates to goods—an act done to protect or preserve the goods; or (c) if the embargo notice relates to services—an act done to protect or preserve equipment used to supply the services. (4) Subsection (5) applies if— (a) a proceeding is brought against a person for a contravention of subsection (1) or (2); and (b) the person seeks to rely on a matter (the relevant matter) stated in subsection (3)(a), (b) or (c). (5) The person has an evidential burden in relation to the matter. (6) For this section, the value of a penalty unit is the same value it has for the time being under the Crimes Act 1914 (Cwlth) for a law of the Commonwealth. Division 3 Orders for the preservation of property 46 Court may make order for preserving money or other property held by a person (1) The District Court may, on the application of the Minister or the commissioner, make an order or orders mentioned in subsection (3) if— (a) proceedings of a kind mentioned in subsection (2) have been taken against a person, or proceedings of a kind mentioned in subsection (2)(d) may be taken against a person; and (b) the court is satisfied that it is necessary or desirable to make the order or orders to preserve money or other property held by or for the person if the person is liable, or may become liable, under the Australian Consumer Law (Queensland)— (i) to pay money by way of a fine, damages, compensation, refund or otherwise; or (ii) to transfer, sell or refund other property; and (c) the court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person. (2) For subsection (1)(a), the kinds of proceedings are— (a) proceedings against the person for an offence against a provision of the Australian Consumer Law (Queensland), chapter 4 or against an FTA offence provision; or (b) an application under the Australian Consumer Law (Queensland), section 232 for an injunction against the person in relation to— (i) a contravention of a provision of the Australian Consumer Law (Queensland), chapter 2, 3 or 4, or of a relevant provision under section 65; or (ii) a term of a consumer contract in relation to which a declaration under the Australian Consumer Law (Queensland), section 250 has been made; or (c) an action under the Australian Consumer Law (Queensland), section 236(1) against the person in relation to a contravention of a provision of the Australian Consumer Law (Queensland), chapter 2, part 2-1 or chapter 3, or of a relevant provision under section 66; or (d) an application for an order under the Australian Consumer Law (Queensland), section 237(1) or 239(1) against a person in relation to— (i) a contravention of a provision of the Australian Consumer Law (Queensland), chapter 2, 3 or 4, or of a relevant provision under section 67; or (ii) a term of a consumer contract in relation to which a declaration under the Australian Consumer Law (Queensland), section 250 has been made. (3) The court may make the following orders under subsection (1) in relation to money or other property held by or for a person (the respondent)— (a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt— (i) to the respondent; or (ii) to another person at the direction or request of the respondent; (b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property for the respondent, or for an associate of the respondent— (i) from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or (ii) from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property; (c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State in which the money is held; (d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State in which that property is located; (e) if the respondent is an individual—an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are stated in the order. (4) If the court makes such an order, the order operates— (a) for the period stated in the order (of not more than 30 days if the application for the order was an ex parte application); or (b) if proceedings in relation to which the order is made are concluded before the stated period ends—until the conclusion of the proceedings. (5) This section— (a) has effect subject to the Bankruptcy Act 1966 (Cwlth); and (b) does not affect any other powers of the court. (6) In this section— associate, of the respondent, means a person who— (a) holds money or other property for the respondent; or (b) if the respondent is a body corporate—is a wholly-owned subsidiary (within the meaning of the Corporations Act) of the respondent. 47 Compliance with orders made under this division (1) A person commits an offence if— (a) an order made under section 46 applies to the person; and (b) the person contravenes, or refuses or fails to comply with, the order. Maximum penalty— (a) if the person is a body corporate—900 penalty units; or (b) if the person is not a body corporate—180 penalty units. (2) For this section, the value of a penalty unit is the same value it has for the time being under the Crimes Act 1914 (Cwlth) for a law of the Commonwealth. Division 4 Court jurisdiction 48 Purpose and scope of division (1) The purpose of this division is to confer jurisdiction to deal with particular matters arising under the Australian Consumer Law (Queensland). (2) This division does not apply in relation to— (a) provisions of the Australian Consumer Law (Queensland) that provide for offences; or (b) any FTA consumer offence provision to the extent a contravention or alleged contravention of the provision is being dealt with as for a criminal offence. 49 Jurisdiction extends to provisions having wider application (1) This section applies if— (a) this division confers jurisdiction on an entity to deal with matters arising under a particular provision of the Australian Consumer Law (Queensland); and (b) under part 3B, the particular provision has an extended application. (2) The conferral of jurisdiction also applies in relation to the provision's extended application. Example for subsection (2)— Under part 3B of this Act, the application of the Australian Consumer Law (Queensland), chapter 5, part 5-2, division 2 (Injunctions) is extended to particular provisions of this Act, including, for example, the FTA consumer offence provisions. Under this division, depending on circumstances, either the District Court or the Supreme Court has jurisdiction for injunctions under the Australian Consumer Law (Queensland). That jurisdiction arrangement will therefore also apply for injunctions relating to contraventions of the FTA consumer offence provisions even though those provisions do not form part of the Australian Consumer Law (Queensland). 50 Proceedings referred to court of competent jurisdiction (1) A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to— (a) for the tribunal, whether the subject of the proceeding— (i) would be a minor civil dispute within the meaning of the QCAT Act; or (ii) would be a matter to which section 50A applies; or (b) for a court—any civil jurisdictional limit, including any monetary limit, applying to the court. (2) Subsection (1) applies whether or not the listed provision already includes reference to a court of competent jurisdiction. Table Provision of Australian Consumer Law (Queensland) Name of provision Nature of proceeding section 43(4) Assertion of right to payment for unauthorised entries or advertisements Action to recover payment made by a person to another person section 85(4) Obligations and rights of consumers on termination Recovery of compensation section 99(2) Effect of termination Recovery of unpaid termination charge section 138(2) Liability for loss or damage suffered by an injured individual Action to recover amount of loss or damage section 139(2) Liability for loss or damage suffered by a person other than an injured individual Action to recover amount of loss or damage section 140(2) Liability for loss or damage suffered by a person if other goods are destroyed or damaged Action to recover amount of loss or damage section 141(2) Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged Action to recover amount of loss or damage section 236(1) Actions for damages Action to recover amount of loss or damage section 259(2), (3) and (4) Action against suppliers of goods s 259(2) - Action to recover reasonable costs incurred by consumer s 259(3) - Action to recover compensation for reduction in value of goods