South Australia: Fair Trading Act 1987 (SA)

South Australia Fair Trading Act 1987 An Act to provide for the appointment and functions of the Commissioner for Consumer Affairs; to provide for the administration of certain aspects of the Act by the Small Business Commissioner; to apply the Australian Consumer Law as a law of South Australia; to make provision for industry codes; to otherwise regulate unfair or undesirable practices affecting business and other consumers; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Crown bound 4A Extraterritorial application 4B Administration of Act Part 2—Commissioner for Consumer Affairs 5 Commissioner for Consumer Affairs 8 Functions of Commissioner for Consumer Affairs 8A Conciliation 9 Co-operation 10 Delegations 12 Annual report Part 3—Australian Consumer Law Division 1—Application of Australian Consumer Law 13 Australian Consumer Law text 14 Application of Australian Consumer Law 15 Future modifications of Australian Consumer Law text 16 Meaning of generic terms used in Australian Consumer Law 17 Interpretation of Australian Consumer Law 18 Application of Australian Consumer Law Division 2—References to Australian Consumer Law 19 References to Australian Consumer Law 20 References to Australian Consumer Laws of other jurisdictions Division 3—Application of Australian Consumer Law to Crown 21 Division does not apply to Commonwealth 22 Application law of this jurisdiction 23 Application law of other jurisdictions 24 Activities that are not business 25 Crown not liable to pecuniary penalty or prosecution Division 4—Miscellaneous 25A Application of Australian Consumer Law (SA) to bills under Legal Practitioners Act 1981 26 Conferral of functions and powers on certain bodies 27 No doubling‑up of liabilities 28 Certain proceedings prevented in certain circumstances 28A Minister may require information 28B Minister to publish certain notices in Gazette 28C Cost of testing Part 3A—Industry codes 28D Interpretation 28E Contravention of industry codes 28F Regulations relating to industry codes Part 3B—Regulation of motor vehicle insurers and repairers 28G Object of Part 28H Interpretation 28I Declaration of industry code of conduct in relation to motor vehicle insurers and repairers 28J Compliance with applicable code of conduct 28K Insurer must disclose relevant interest in relation to repairer 28L Regulations Part 4—Fair reporting 29 Interpretation 30 Application of Part 31 Procedures in respect of prescribed reports 32 Duties of traders 33 Duties of reporting agencies 34 Correction of errors 35 Qualified privilege 36 Offences 37 Powers of District Court Part 4A—Regulation of event ticket transactions Division 1—Preliminary 37A Interpretation 37B Tickets to which Part applies 37C Meaning of event organiser Division 2—Resale of tickets 37D Interpretation 37E Meaning of original supply cost 37F Meaning of prohibited advertisement 37G Restriction on ticket resale profit 37H Supply of tickets not to be made contingent on other purchases 37I Ticket resale advertising 37J Defence for certain ticket sales 37K Certain resale restrictions void Division 3—Online purchase of tickets 37L Prohibited conduct in relation to use of ticketing websites Division 4—Public disclosure of ticketing information 37M Minister may require notification of number of tickets available for general public sale Division 5—Review of Part 37N Review of Part Part 5—Additional consumer protection provisions 41 Advertisements must not state or imply approval of consumer affairs authority 42 Recreational services 43 Unlawful actions and representations 43A Prohibition on trading or carrying on business as Starr-Bowkett society Part 6—Third-party trading schemes 44 Interpretation 45 Power of Minister to approve third-party trading schemes 45A Power of Minister to prohibit third-party trading schemes 45B Offences 45C Regulations Part 6B—Fuel pricing information 45F Scheme may be established by regulation Part 7—Enforcement and remedies Division A1—Interpretation 46 Interpretation Division 1—Legal proceedings and warnings 47 Conduct of legal proceedings on behalf of consumers 48 Public warning statements 49 Immunity from liability Division 1A—Authorised officers 76 Authorised officers 77 Obtaining information 78 Entry and inspection 78A Use and inspection of books or documents produced or seized 78B Dealing with goods bought or seized 78C Embargo notices 78D Hindering an authorised officer 78E Offence relating to intimidation 78F Impersonating an authorised officer Division 2—Assurances and enforcement orders 79 Assurances 80 Registration of deeds of assurance 81 Offence 82 Enforcement orders Division 3—Civil remedies 82A Application of Division 83 Injunctions 85 Orders for compensation 86 Sequestration orders Division 3A—Civil penalties and civil expiation notices Subdivision 1—Interpretation 86A Interpretation Subdivision 2—Civil penalties 86B Civil penalties Subdivision 3—Civil expiation notices 86C Certain civil penalty contraventions may be expiated 86D Civil expiation notices 86E Late payment 86F Effect of expiation 86G Commencement of proceedings if expiation fee not paid 86H Withdrawal of civil expiation notices 86I Service of civil expiation notice or withdrawal notice Division 4—General 86J Application of Division 87 Prosecutions 88 Defences 90 Vicarious liability 91 Evidentiary provisions Part 12—Miscellaneous 92 Saving of other rights or remedies 95 Service 96 Contracting out prohibited 96A Confidentiality 96B Delegation by Minister responsible for administration of Small Business Commissioner Act 97 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Fair Trading Act 1987. 3—Interpretation (1) In this Act, 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 (SA)—see section 14(1)(b); Australian Consumer Law text means the text described in section 13; authorised officer means a person who is an authorised officer under Part 7 Division 1A; Commissioner for Consumer Affairs means the person holding or acting in the office of Commissioner for Consumer Affairs; Competition and Consumer Act means the Competition and Consumer Act 2010 of the Commonwealth; consumer affairs authority means— (a) the Commissioner for Consumer Affairs; or (b) a person or authority that has, under a law of another jurisdiction, powers and functions similar to those of the Commissioner for Consumer Affairs; contravene includes fail to comply; District Court means the Administrative and Disciplinary Division of the District Court; 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; involved—a person is involved, in a contravention of a provision of this Act or in conduct that constitutes such a contravention, if the person— (a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention; jurisdiction means a State or the Commonwealth; law, in relation to a Territory, means a law of, or in force in, that Territory; Magistrates Court means the Civil (Consumer and Business) Division of the Magistrates Court; modifications includes additions, omissions and substitutions; 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; related Act means an Act or a provision of an Act— (a) of which the Commissioner for Consumer Affairs or the Small Business Commissioner is stated, in that Act, to have the administration; or (b) that is prescribed by the regulations to be a related Act; Small Business Commissioner means the person holding or acting in the office of Small Business Commissioner; State includes a Territory; Territory means the Australian Capital Territory or the Northern Territory of Australia; this jurisdiction means South Australia; trader means a person who in the course of a business— (a) supplies, or offers to supply, goods or services; or (b) sells or lets, or offers to sell or let, premises; trading debt means a debt owed to a trader. (2) A reference in this Act to the supply of goods or services extends to the supply of both goods and services. (3) The regulations may exclude a person, or a class of persons, from the ambit of the definition of consumer for the purposes of this Act or a specified provision of this Act (other than the Australian Consumer Law (SA)). (4) Terms used in this Act and also in the Australian Consumer Law (SA) have, unless the contrary intention appears, the same meanings in this Act as they have in that Law. (5) For the purposes of this Act— (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. 4—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. 4A—Extraterritorial application (1) This Act is intended to have extraterritorial application insofar 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. 4B—Administration of Act (1) Subject to this section, the Commissioner for Consumer Affairs is responsible for the administration of this Act (including the Australian Consumer Law (SA)). (2) The Small Business Commissioner is responsible for the administration of— (a) the Australian Consumer Law (SA) to the extent specified by the Minister by notice in the Gazette made on the recommendation of the Minister responsible for the administration of the Small Business Commissioner Act 2011; and (b) Part 3A in relation to an industry code or provisions of an industry code if the regulations prescribing the code or provisions for the purposes of that Part declare that the Commissioner is to have that responsibility; and (c) Part 3B (other than section 28K). (3) However, the Small Business Commissioner may only be assigned responsibility for administration of the Australian Consumer Law (SA) or Part 3A in relation to an industry code or provisions of an industry code insofar as the Law, code or provisions apply to persons who acquire or propose to acquire goods or services for the purpose of trade or commerce or regulate the conduct of traders towards other traders. (4) To the extent that the Commissioner for Consumer Affairs is responsible for the administration of this Act, the Commissioner is subject to direction by the Minister. (5) To the extent that the Small Business Commissioner is responsible for the administration of this Act, the Commissioner is subject to direction by the Minister responsible for the administration of the Small Business Commissioner Act 2011 in accordance with section 6 of that Act. Part 2—Commissioner for Consumer Affairs 5—Commissioner for Consumer Affairs (1) There will be a Commissioner for Consumer Affairs. (2) The Commissioner will be a person employed in the Public Service of the State. 8—Functions of Commissioner for Consumer Affairs (1) The functions of the Commissioner for Consumer Affairs are— (a) to conduct research into matters concerning the interests of consumers generally or a particular class of consumers; and (b) to conduct consumer education programmes and to publish reports and disseminate information on matters concerning the interests of consumers; and (c) to give advice to consumers in relation to their rights and obligations under this Act or any other law, or in relation to transactions entered into by them as consumers; and (d) to attempt to resolve by conciliation disputes between consumers and traders; and (e) to monitor business activities (to which this Act and the related Acts apply) that affect consumers and investigate practices that may adversely affect the interests of consumers generally or a particular class of consumers; and (f) to encourage trade, industry and professional associations to develop, disseminate to their members and enforce codes of practice designed to promote fair trading and to safeguard the interests of consumers; and (g) to prepare and disseminate guidelines to traders in relation to their obligations under this Act and related Acts; and (h) to enforce the requirements of this Act and related Acts by the prosecution of offences and other appropriate action; and (ha) to license and register traders under other Acts; and (i) to make reports to the Minister on matters referred to the Commissioner by the Minister and on the exercise of the functions of the Commissioner; and (j) any other functions conferred on the Commissioner by or under this or any other Act. 8A—Conciliation (1) The Commissioner for Consumer Affairs must not attempt to resolve a dispute between a consumer and trader by conciliation except— (a) at the request or with the consent of the consumer; or (b) at the request of a court, board or tribunal in which proceedings have been taken in relation to the dispute. (2) The Commissioner may call voluntary or compulsory conferences of the parties to the dispute for the purpose of attempting to resolve the dispute by agreement. (3) If— (a) the Commissioner is requested to resolve a dispute between a consumer and trader by conciliation; and (b) the consumer, without reasonable excuse, fails to attend a conference called for that purpose when asked to do so by the Commissioner, the Commissioner may refuse to take any further action in relation to the dispute. (4) A trader who is asked by the Commissioner to attend a conference under this section must attend the conference if the Commissioner indicates in the request that attendance is compulsory. Maximum penalty: (a) in the case of a minor offence—$5 000; (b) in any other case—$10 000. Expiation fee: In the case of a minor offence—$315. (5) A conciliation conference may, with the approval of the Commissioner, be conducted by telephone or other electronic means (and a person who participates in a conference by such means will, for the purposes of this section, be taken to have attended the conference). (6) The following provisions govern representation in conciliation proceedings: (a) representation of a party by a lawyer will not be permitted unless— (i) another party to the dispute is a lawyer; or (ii) each of the parties to the dispute agrees; or (iii) the Commissioner is of the opinion that the party would be unfairly disadvantaged if not represented by a lawyer; (b) if a party to the dispute is a body corporate, the Commissioner must, if the party seeks to be represented by an officer or employee who is not a lawyer, permit such representation; (c) the Commissioner may permit a party to the dispute to be assisted by a person who is not a lawyer but only if that person is not acting for fee or reward. (7) If an agreement that is reached as a result of conciliation is recorded in a written instrument and signed by the Commissioner and the parties to the agreement— (a) a copy of the instrument must be given to each party; and (b) in the event that a party to the agreement fails to carry out the party's obligations under the agreement—the Commissioner or the other party may apply to the Magistrates Court for an order enforcing the terms of the agreement. (8) Evidence of anything said or done in the course of conciliation proceedings under this section is only admissible in subsequent proceedings by consent of the Commissioner and all parties to the proceedings. (9) An application to the Magistrates Court under subsection (7)(b) is a minor statutory proceeding for the purposes of the Magistrates Court Act 1991. (10) In this section— minor offence means an offence where the value of the goods or services the subject of the dispute is not more than $1 000 or, if some other amount is prescribed by the regulations, that amount. 9—Co-operation The Commissioner for Consumer Affairs may, in the interests of consumers, co-operate with public or private bodies or persons within or outside the State. 10—Delegations (1) The Commissioner for Consumer Affairs may delegate to a person employed in the Public Service of the State or, with the Minister's consent, to a person not so employed any of the Commissioner's powers under this Act or a related Act. (2) The Minister may delegate any of the Minister's powers under this Act. (3) A delegation under this section— (a) must be in writing; and (b) may be made subject to such conditions as the delegator thinks fit; and (c) if made to the holder of a specified office or position, empowers any person for the time being holding or acting in that office or position to exercise the delegated powers; and (d) is revocable at will; and (e) does not prevent the delegator from acting personally in any matter. 12—Annual report (1) The Commissioner for Consumer Affairs must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act by the Commissioner during the year ended on the preceding 30 June. (2) The Minister must cause a copy of the report to be laid before each House of Parliament within 14 sitting days of that House after receiving the report. Part 3—Australian Consumer Law Division 1—Application of Australian Consumer Law 13—Australian Consumer Law text The Australian Consumer Law text consists of— (a) Schedule 2 of the Competition and Consumer Act 2010 of the Commonwealth; and (b) the regulations under section 139G of that Act. 14—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 (SA); and (c) as so applying is a part of this Act. (2) This section has effect subject to sections 15, 16 and 17. 15—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 14 if the modification is declared by proclamation to be excluded from the operation of that section. (2) A proclamation under subsection (1) only has effect if it is made within 2 months after the date of the modification. (3) Subsection (1) ceases to apply to the modification if a further proclamation so provides. (4) For the purposes of this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 of the Commonwealth. 16—Meaning of generic terms used in Australian Consumer Law In the Australian Consumer Law (SA)— court— (a) in respect of proceedings under section 218 of the Australian Consumer Law (SA)—means the Magistrates Court; and (b) in respect of any other proceedings—means the court of this State having appropriate jurisdiction in relation to the proceedings; regulator means— (a) the Commissioner for Consumer Affairs; or (b) the Small Business Commissioner (but only if the Small Business Commissioner is responsible for the administration of any aspect of the Australian Consumer Law (SA)). 17—Interpretation of Australian Consumer Law (1) The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the Australian Consumer Law (SA). (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 (SA) were a Commonwealth Act; and (b) the regulations in the Australian Consumer Law (SA) or instruments mentioned under that Law were regulations or instruments under a Commonwealth Act. (3) The Acts Interpretation Act 1915 does not apply to— (a) the Australian Consumer Law (SA); or (b) any instrument under that Law. 18—Application of Australian Consumer Law (1) The Australian Consumer Law (SA) 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 (SA) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia). Division 2—References to Australian Consumer Law 19—References to Australian Consumer Law (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. 20—References to Australian Consumer Laws 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 3—Application of Australian Consumer Law to Crown 21—Division does not apply to Commonwealth In this Division, participating jurisdiction or other jurisdiction does not include the Commonwealth. 22—Application law of this jurisdiction The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned. 23—Application law of other jurisdictions (1) The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction. (2) If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege. 24—Activities that are not business (1) For the purposes of sections 22 and 23, the following activities do not amount to carrying on a business: (a) imposing or collecting— (i) taxes; or (ii) levies; or (iii) fees for authorisations; (b) granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions); (c) a transaction involving— (i) only persons who are all acting for the Crown in the same right (and none of whom is an authority of a State); or (ii) only persons who are all acting for the same authority of a State; or (iii) only the Crown in right of a State and 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 22 and 23. (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 includes a licence, permit or certificate 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 1 person; and (b) it is neither a trading corporation nor a financial corporation. 25—Crown not liable to pecuniary penalty or prosecution (1) Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence. (2) Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction. Division 4—Miscellaneous 25A—Application of Australian Consumer Law (SA) to bills under Legal Practitioners Act 1981 Section 101 of the Australian Consumer Law (SA) does not apply to a contract for the provision of legal services to which the Legal Practitioners Act 1981 applies. 26—Conferral of functions and powers on certain bodies (1) The authorities and officers of the Commonwealth referred to in the Australian Consumer Law (SA) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (SA). (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. 27—No doubling‑up of liabilities (1) If— (a) an act or omission is an offence against the Australian Consumer Law (SA) 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 (SA). (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 (SA) in respect of the same conduct. 28—Certain proceedings prevented in certain circumstances If a person expiates an alleged offence against the Australian Consumer Law (SA), proceedings cannot be started or continued against the person under section 224 of the Australian Consumer Law (SA) in relation to an alleged contravention of a provision of the Australian Consumer Law (SA) in respect of the same conduct. 28A—Minister may require information (1) The Minister may, by notice in writing given to a person, require the person to provide (within the period specified in the notice) any information that is reasonably necessary for the purpose of determining whether— (a) a provision of Part 3‑3 of the Australian Consumer Law (SA) is being or has been complied with; or (b) the Minister should impose or revoke an interim ban on consumer goods, or product related services, of a particular kind; or (c) the Minister should issue a recall notice for consumer goods of a particular kind; or (d) the Minister should publish a safety warning notice about consumer goods and product related services under section 129 of the Australian Consumer Law (SA). (2) Subject to subsection (3), a person given a notice under this section— (a) must not refuse or fail to comply with a reasonable requirement under this section; and (b) must not knowingly make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in an answer given or information provided under this section. Maximum penalty: $20 000. (3) A person is not required to provide information under this section if the provision of the information would result in or tend towards self‑incrimination. 28B—Minister to publish certain notices in Gazette (1) If, under the Australian Consumer Law (SA), the Minister publishes a written notice on the Internet, the Minister must, as soon as reasonably practicable after the publication, publish the notice in the Gazette. (2) A failure of the Minister to publish a notice in the Gazette as required under subsection (1) does not affect the validity of a notice published on the Internet. 28C—Cost of testing (1) If, as the result of an examination, analysis or test of consumer goods, or product related services, conducted under this Act, the Minister— (a) imposes an interim ban on the goods or services; or (b) issues a recall notice for the goods, the Minister may recover as a debt from a manufacturer or supplier of the goods or from a supplier of the services the reasonable cost of any such examination, analysis or test. (2) If, as the result of an examination, analysis or test of consumer goods, or product related services, conducted under this Act— (a) the goods are found not to comply with an applicable safety standard; or (b) the services are found not to comply with an applicable safety standard, the Minister may recover as a debt from a manufacturer or supplier of the goods or from a supplier of the services the reasonable cost of any such examination, analysis or test. (3) If a person provides (in contravention of this Act) materially inaccurate information in relation to consumer goods or product related services, the Minister may recover as a debt from that person the reasonable cost of any examination, analysis or test carried out for the purpose of testing the accuracy of the information. (4) The court by which a person is convicted of an offence against this Act may, on the application of the Minister, order payment of any amount that the Minister is entitled to recover from the convicted person under this section. (5) The Minister must, before proceeding to recover costs from a person under this section, supply to the person a statement setting out details of the examination, analysis or test that was carried out and the costs that were incurred. (6) In proceedings for the recovery of the cost of carrying out an examination, analysis or test to which this section applies, a certificate apparently signed by the Minister— (a) certifying that the Minister supplied a statement in accordance with subsection (5) on a date specified in the certificate; or (b) certifying the amount of the costs, will be accepted, in the absence of proof to the contrary, as proof of the matter so certified. Part 3A—Industry codes 28D—Interpretation In this Part— industry code means a code regulating the conduct of participants in an industry towards other participants in the industry or towards persons to whom goods or services are or may be supplied by participants in the industry. 28E—Contravention of industry codes A person must not, in trade or commerce, contravene a prescribed industry code or a prescribed provision of an industry code. 28F—Regulations relating to industry codes (1) The regulations may— (a) prescribe an industry code, or provisions of an industry code, for the purposes of this Part and declare (subject to section 4B(3)) whether the Commissioner for Consumer Affairs or the Small Business Commissioner is to be responsible for the administration of this Part in relation to the code or provisions; and (b) declare that a contravention of section 28E of a particular class (constituted of a contravention of the whole or any specified part of a prescribed industry code or prescribed provisions of an industry code) is to be subject to a civil penalty under Part 7 Division 3A; and (c) fix expiation fees (not exceeding $6 000 in the case of a body corporate and $1 200 in the case of a natural person) for alleged civil penalty contraventions within the meaning of Part 7 Division 3A; and (d) declare that a specified activity is to be taken to be an industry for the purposes of this Part and that persons of a specified class are to be taken to be participants in the industry. (2) A proposal for regulations prescribing an industry code or provisions of an industry code under this section may be initiated by— (a) if the Commissioner for Consumer Affairs is to be responsible for the administration of this Part in relation to the code or provisions—the Minister responsible for the administration of this Act; and (b) if the Small Business Commissioner is to be responsible for the administration of this Part in relation to the code or provisions—the Minister responsible for the administration of the Small Business Commissioner Act 2011. (3) If a Minister initiates a proposal for regulations prescribing an industry code or provisions of an industry code under this section, the Minister must, before the regulations are made, consult with each organisation that the Minister considers to be representative of an industry likely to be affected by the code or provisions. (4) For the purposes of the Legislative Instruments Act 1978, the Minister responsible for the administration of the Small Business Commissioner Act 2011 is to be taken to be the Minister responsible for the administration of this Act in respect of regulations that declare the Small Business Commissioner to be responsible for the administration of this Part in relation to an industry code or provisions of an industry code. Part 3B—Regulation of motor vehicle insurers and repairers 28G—Object of Part The object of this Part is to provide for fair, timely and transparent conduct between insurers and repairers so that consumers with damaged motor vehicles are not unduly inconvenienced or unfairly treated as a result of the business practices in, or disputes between, the motor vehicle insurance and repair industries. 28H—Interpretation In this Part, unless the contrary intention appears— applicable industry code of conduct means a code of conduct declared under section 28I; insurer means an insurer who is in the business of insuring motor vehicles in respect of property damage and who, in the course of that business, engages or authorises repairers to repair motor vehicles; repairer means a person who is in the business of repairing motor vehicles that have been damaged. 28I—Declaration of industry code of conduct in relation to motor vehicle insurers and repairers (1) The regulations may declare that a code of conduct specified or referred to in the regulations is an applicable industry code of conduct for the purposes of this Part in relation to the conduct of the business of insurers and repairers. (2) A regulation declaring a code of conduct under subsection (1) may— (a) exclude any class of motor vehicles from the application of the code; and (b) exclude any provision of the code that relates to the voluntary application of that code. (3) The regulations may— (a) prescribe fees in respect of the administration of an applicable industry code of conduct; and (b) make provisions of a saving or transitional nature consequent on the declaration of an applicable industry code of conduct. 28J—Compliance with applicable code of conduct (1) An insurer or repairer must not, in trade or commerce, contravene or fail to comply with a provision of an applicable industry code of conduct. (2) The Small Business Commissioner must, on or before 30 September in each year, prepare and submit a report to the Minister responsible for the administration of the Small Business Commissioner Act 2011 containing the following information in respect of the immediately preceding financial year: (a) the number of proceedings commenced by the Commissioner under section 86B for an alleged civil penalty contravention against section 28J(1); (b) the outcome of those proceedings. (3) A report required under subsection (2) may be combined with a report of the Small Business Commissioner required under any other Act (provided that such reports relate to the same period). 28K—Insurer must disclose relevant interest in relation to repairer (1) An insurer must, before engaging or authorising a repairer to undertake repairs under a policy of insurance issued by the insurer, disclose to the holder of the insurance policy in the prescribed manner any relevant interest held by the insurer in relation to the repairer. (2) An insurer must, at the prescribed times and in the prescribed manner, disclose to the holder of an insurance policy issued by the insurer whether or not the insurance policy contains a provision allowing the holder of the insurance policy to make a choice as to which repairer may be engaged to undertake repairs under the insurance policy. (3) In this section, an insurer holds a relevant interest in relation to a repairer if— (a) the insurer owns, or has any financial interest in, the business of the repairer; or (b) the insurer has entered into a contract or other arrangement with the repairer in relation to engaging the services of the repairer under a policy of insurance issued by the insurer. 28L—Regulations (1) A proposal for regulations for the purposes of this Part (other than section 28K) may be initiated by the Minister responsible for the administration of the Small Business Commissioner Act 2011. (2) If the Minister responsible for the administration of the Small Business Commissioner Act 2011 initiates a proposal for regulations for the purposes of this Part, the Minister must, before the regulations are made, consult with each organisation that the Minister considers to be representative of an industry likely to be affected by the regulations. (3) For the purposes of the Legislative Instruments Act 1978, the Minister responsible for the administration of the Small Business Commissioner Act 2011 is to be taken to be the Minister responsible for the administration of this Act in respect of regulations made for the purposes of this Part (other than section 28K). Part 4—Fair reporting 29—Interpretation (1) In this Part, unless the contrary intention appears— file means any repository or record in which information relating to any person is recorded or retained, in any manner or form, by a reporting agency; prescribed benefit means— (a) a benefit of a commercial nature; or (b) a benefit in or affecting employment; or (c) a lease of premises or a licence conferring a right to occupy premises; prescribed report means a communication made to a trader by a reporting agency or another trader of information relating to a person, not being a communication made with the knowledge of, and of information known to, that person; reporting agency means a person who carries on the business of providing prescribed reports. (2) For the purposes of this Part, where a prescribed report consists of a communication by electronic or mechanical means (except by telephone or other means of voice transmission) the report will be regarded as being written. 30—Application of Part (1) Subject to subsection (2), this Part applies to and in relation to a reporting agency or trader where— (a) the reporting agency or trader provides a prescribed report to a person carrying on a business or letting premises in the State; and (b) the person to whom the report relates is domiciled or resident in the State. (2) This Part does not apply to or in relation to a prescribed report that is provided through the use of a residential tenancy database to which Part 5A of the Residential Tenancies Act 1995 applies. 31—Procedures in respect of prescribed reports (1) A reporting agency or trader must adopt all procedures reasonably practicable for ensuring accuracy and fairness in the contents of prescribed reports provided by the agency or trader. (2) A reporting agency or trader must not include in any prescribed report— (a) any information based on evidence that is not the best evidence reasonably available; or (b) any unfavourable personal information based upon hearsay evidence unless the agency or trader has made reasonable efforts to substantiate the evidence on which the personal information is based and, where the information is unsubstantiated, the lack of substantiation is stated in any report in which the information is given. (3) A reporting agency or trader must not include in any prescribed report information as to the race, colour or religious or political belief or affiliation of any person. 32—Duties of traders Where a trader— (a) denies a prescribed benefit sought by a person; or (b) grants a prescribed benefit sought by a person but upon terms less favourable than those upon which the trader grants similar benefits to other persons in the course of the trader's business, and the trader has during the last preceding 6 months received a prescribed report in relation to that person, the trader must at the written request of that person— (c) inform the person that the trader has received that report; and (d) give the person the name and address of the reporting agency or other trader who provided that report. 33—Duties of reporting agencies (1) A reporting agency must, on the written application of a person in relation to whom the agency has recorded information, disclose without charge— (a) all information in its files relating to that person at the time the request; and (b) the name and address of every person to whom a prescribed report relating to that person has been provided within the year preceding the date of the request; and (c) a copy of every such prescribed report that was in writing. (2) A reporting agency may require any person seeking disclosure of information under this section to produce reasonable evidence of the person's identity. (3) A reporting agency must take reasonable steps to ensure that information to which a person is entitled under this section is disclosed in a form that is readily intelligible to that person and will permit that person to make a copy of, or to take an extract from, the information so disclosed. (4) A reporting agency must not require a person to give any undertaking, or to waive any right that the person may have, as a condition of disclosing information under this section. 34—Correction of errors (1) A person who disputes the accuracy or completeness of any information compiled by a reporting agency in relation to the person or included in a prescribed report relating to the person provided by a reporting agency or trader may, by notice in writing served upon the agency or trader, object to the inaccuracy or incompleteness of the information. (2) Where, pursuant to subsection (1), a person disputes the accuracy or completeness of any information, the reporting agency or trader must, within a reasonable time, use its best endeavours to verify or supplement the information in accordance with good practice. (3) A reporting agency or trader upon whom a notice of objection is served under this section must, within 30 days after the date of service of the notice, inform the person by whom the objection was made— (a) whether the agency or trader has made any amendment or supplementation to or deletion from the information; and (b) if so, the nature of the amendment, supplementation or deletion. (4) Where information is altered under this section by amendment, supplementation or deletion, the following provisions apply: (a) where a reporting agency makes such an alteration, the agency must give notice in writing of the alteration to— (i) every person provided by the agency with a prescribed report based on the information within the period of 60 days before the making of the alteration; and (ii) every person provided by the agency with such a prescribed report before the commencement of that period and nominated by the person to whom the information relates; (b) where a trader makes such an alteration, the trader must give notice in writing of the alteration to every person provided by the trader with a prescribed report based on the information and nominated by the person to whom the information relates. (5) A person by whom an objection has been made under this section may appeal to the Magistrates Court against any failure on the part of a reporting agency or trader to make any deletion from or amendment or supplementation to information. (6) Upon the hearing of an appeal under this section, the Magistrates Court may make such orders as it considers just. (7) Where an objection or appeal has been made or instituted under this section and a prescribed report is made by the reporting agency or trader before the determination by the agency or trader or by the Magistrates Court of the matters raised in the objection or appeal, the agency or trader must include in the report a statement to the effect that those matters are subject to an objection or appeal under this Part. 35—Qualified privilege (1) Subject to subsection (2), any communication to a reporting agency or trader or to a trader by a reporting agency or another trader of information relating to the credit-worthiness of any person is protected by qualified privilege. (2) Subsection (1) does not apply where information is communicated in contravention of an order made under this Part. 36—Offences Subject to this Part, a person who— (a) contravenes a provision of this Part; or (b) contravenes an order made under this Part (other than an order under section 37); or (c) knowingly provides false or misleading information to another person, being a person who is engaged in compiling information for a prescribed report; or (d) divulges information relating to another person from the files of a reporting agency without proper authority to do so or except for the purposes of legal proceedings; or (e) obtains information relating to another person from a reporting agency or trader by false pretences, is guilty of an offence. Maximum penalty: $10 000. 37—Powers of District Court (1) The District Court may, on the application of the Commissioner for Consumer Affairs, make such orders against a reporting agency or trader as may be necessary or expedient in the opinion of the Court to ensure that the reporting agency or trader complies with this Part or any provision of this Part. (2) Where a reporting agency or trader— (a) commits an offence against this Part; or (b) does any act that, in the opinion of the District Court, shows the agency or trader to be unfit to provide prescribed reports, the Court may, on the application of the Commissioner for Consumer Affairs, make an order— (c) prohibiting the agency or trader from providing prescribed reports; or (d) requiring the agency or trader to comply with conditions specified in the order in relation to the provision of prescribed reports. (3) An order under subsection (1) or (2) is effective for such period as may be specified in the order or until further order of the Court. (4) A reporting agency or trader that contravenes an order under subsection (1) or (2) is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. Part 4A—Regulation of event ticket transactions Division 1—Preliminary 37A—Interpretation In this Part— authorised seller, in relation to an event or a ticket for an event, means— (a) if the event organiser has authorised a person to supply the ticket on behalf of the event organiser or to resupply the ticket after acquiring it from the authorised seller—that person; or (b) in any other case—any event organiser for the event; event organiser—see section 37C; resale restriction—see section 37B. 37B—Tickets to which Part applies (1) This Part applies to tickets to sporting or entertainment events in this State that are subject to a resale restriction. (2) A resale restriction is a term or condition of a ticket that limits the circumstances in which the ticket may be resold or prohibits the resale of the ticket. (3) A term or condition that limits the circumstances in which a ticket may be resold or prohibits the resale of the ticket includes a term or condition that provides for the ticket to be cancelled or rendered invalid if the ticket is resold, or if the ticket is resold in certain circumstances. 37C—Meaning of event organiser (1) The event organiser, in relation to an event, is the person who authorises the first supply of tickets for the event, whether or not that person is also the performer, the promoter of the event or the operator of the event venue. (2) The regulations may declare any other person (or class of persons) to be the event organiser in relation to the event or in relation to any class of events to which the event belongs. Division 2—Resale of tickets 37D—Interpretation In this Division— first purchaser, in relation to a ticket, means the person to whom the ticket is first supplied by an authorised seller; original supply cost—see section 37E; prohibited advertisement—see section 37F; sell includes offer or advertise to sell; supply includes offer to supply and advertise for supply; ticket resale advertisement means an advertisement for the sale of a ticket by any person other than the authorised seller; transaction cost—see section 37E. 37E—Meaning of original supply cost (1) The original supply cost of a ticket is the amount for which the ticket was sold to the first purchaser by an authorised seller, excluding any transaction cost. (2) The transaction cost is the cost of any commission, booking fee, payment surcharge or ticket delivery fee incurred by the first purchaser of the ticket in connection with the purchase of the ticket. (3) If no amount was paid by the first purchaser of the ticket in consideration for the ticket, the original supply cost is taken to be an amount determined by the authorised seller of the ticket as the recommended retail price of the ticket. (4) In any proceedings, an apparently genuine certificate purporting to be signed by the Commissioner and certifying as to the recommended retail price of a ticket determined by an authorised seller for the purposes of subsection (3) is, in the absence of proof to the contrary, proof of the matter so certified. 37F—Meaning of prohibited advertisement (1) A prohibited advertisement is a ticket resale advertisement that does not comply with this section. (2) A ticket resale advertisement must not specify an amount for the sale of the ticket that exceeds 110% of the original supply cost of the ticket. (3) A ticket resale advertisement must specify the following particulars: (a) the original supply cost of the ticket; (b) details of the location from which the ticket holder is authorised to view the event (including, for example, any bay number, row number and seat number for the ticket). 37G—Restriction on ticket resale profit A person must not sell a ticket to any other person for an amount that exceeds 110% of the original supply cost of the ticket. Maximum penalty: (a) in the case of a body corporate—$100 000; (b) in the case of a natural person—$20 000. Expiation fee: $550. 37H—Supply of tickets not to be made contingent on other purchases (1) A person (the supplier) must not supply a ticket to any other person (the recipient) under an agreement that makes the liability of the supplier to supply the ticket to the recipient contingent on payment by the recipient to the supplier of any amount in consideration for the provision to the recipient of any other goods or services. Maximum penalty: (a) in the case of a body corporate—$100 000; (b) in the case of a natural person—$20 000. Expiation fee: $550. (2) This section does not apply to the supply of a ticket under an agreement authorised by the event organiser or under any other agreement of a kind prescribed by the regulations. 37I—Ticket resale advertising (1) The owner of an advertising publication must ensure that no prohibited advertisement is published in the publication. Maximum penalty: (a) in the case of a body corporate—$100 000; (b) in the case of a natural person—$20 000. Expiation fee: $550. (2) It is a defence to a prosecution for an offence against subsection (1) if the defendant establishes that— (a) the agreement between the defendant and the person placing the ticket resale advertisement was subject to terms or conditions prohibiting the publication of prohibited advertisements; and (b) the defendant, as soon as practicable after becoming aware that the prohibited advertisement had been published in the publication, took reasonable steps to ensure that the advertisement was removed from the publication; and (c) the defendant took such other steps as were reasonable in the circumstances to ensure that no prohibited advertisement was published in the publication. (3) The regulations may exclude an advertisement or publication of a kind described by the regulations from the application of this section. (4) In this section— advertisement means any advertisement, whether paid or not; advertising publication means any website, newspaper, magazine or other publication containing advertisements to which members of the public have access (whether or not a member of the public is first required to pay a fee or subscription, register or become a member); owner, of an advertising publication, includes any person who conducts the business or undertaking of the advertising publication, but does not include a person of a class prescribed by the regulations. 37J—Defence for certain ticket sales (1) It is a defence to a charge of an offence against this Division involving the sale or supply, or an advertisement for the sale or supply, of a ticket if the defendant proves— (a) that the ticket was or was advertised to be (as the case may require) sold or supplied as a fundraiser for approved purposes; and (b) the whole of the net proceeds of the sale or supply of the ticket were, or were to be, applied for the approved purposes. (2) For the purposes of subsection (1)— (a) the following are approved purposes: (i) a religious, educational, charitable or benevolent purpose; (ii) the purpose of promoting or encouraging literature, science or the arts; (iii) the purpose of providing medical treatment or attention, or promoting the interests of persons who have a particular physical, mental or intellectual disability; (iv) the purpose of establishing, carrying on or improving a community centre, or promoting the interests of a local community or a particular section of a local community; (v) the purpose of sport, recreation or amusement; (vi) the purpose of promoting animal welfare; (vii) the purpose of conserving resources or preserving any part of the environmental, historical or cultural heritage of the State; (viii) the purpose of promoting the interests of students or staff of an educational institution; (ix) a political purpose; (x) the purpose of promoting the common interests of persons who are engaged in, or interested in, a particular business, trade or industry; and (b) the net proceeds of the sale or supply of a ticket are the gross proceeds of the sale or supply less the expenses incurred in conducting the sale or supply. 37K—Certain resale restrictions void A resale restriction is void to the extent that it provides for the ticket to be cancelled or rendered invalid if the ticket is resold for an amount not exceeding 110% of the original supply cost of the ticket. Division 3—Online purchase of tickets 37L—Prohibited conduct in relation to use of ticketing websites (1) A person must not engage in prohibited conduct in relation to the use of a ticketing website. Maximum penalty: (a) in the case of a body corporate—$100 000; (b) in the case of a natural person—$20 000. (2) A person will be taken to have contravened subsection (1) if the person uses any software (including, but not limited to, software prescribed by regulations) to enable or assist the person to circumvent the security measures of the website and to purchase tickets in contravention of the terms of use of the website that are published on the website. (3) The security measures of a website include any measures of a kind prescribed by the regulations. Division 4—Public disclosure of ticketing information 37M—Minister may require notification of number of tickets available for general public sale (1) The Minister may, by notice in the Gazette, declare that a specified event organiser (or a specified class of event organisers) is required to give public notice of the total number of tickets for the event that are to be made available by authorised sellers for general public sale. (2) The public notice must be given within the time and in the manner specified in the declaration. (3) The total number of tickets specified in a public notice required under this section must be a number that the event organiser believes, on reasonable grounds, is not more than 10% greater or less than the total number of tickets that are to be made available for general public sale before the day on which the event is held (including any number of tickets made available before the public notice is given). (4) A ticket is not made available by an authorised seller for general public sale if the authorised seller requires a person to do either of the following in order to acquire the ticket: (a) pay a fee (in addition to the price of the ticket and any transaction cost such as a commission, booking fee, payment surcharge or ticket delivery fee); (b) register for access to any pre-sale, publication, competition or other special offer. (5) The regulations may make further provision for the circumstances in which a ticket is, or is not, made available for general public sale for the purposes of this section. (6) The Minister may not make a declaration under this section unless— (a) the Minister is satisfied that each event organiser for an event to which the proposed declaration applies has been notified (whether by public notice or otherwise) of the Minister's intention to make the declaration; and (b) the event organiser has been given a reasonable opportunity to make submissions in relation to the proposed declaration; and (c) the Minister has considered any such submission; and (d) the Minister is satisfied that it is in the public interest to make the declaration. (7) An event organiser must not fail to comply with a requirement made in a declaration under this section. Maximum penalty: (a) in the case of a body corporate—$100 000; (b) in the case of a natural person—$20 000. (8) The Minister may, by further notice in the Gazette, vary or revoke a declaration made under this section. Division 5—Review of Part 37N—Review of Part (1) The Minister must cause a review of the operation of this Part to be conducted not before 18 months, and not later than 2 years, following the commencement of this Division. (2) The review must be completed, and a report on the results of the review provided to the Minister, within 3 years following the commencement of this Division. (3) The Minister must, within 12 sitting days after receipt of the report, cause copies of the report to be laid before each House of Parliament. Part 5—Additional consumer protection provisions 41—Advertisements must not state or imply approval of consumer affairs authority A person must not, without the approval of the Commissioner for Consumer Affairs, publish, or cause to be published, a statement promoting, or apparently intended to promote, the supply of goods or services or the sale or letting of premises that states, either expressly or by implication, that a consumer affairs authority has approved or refrained from disapproving— (a) the statement; or (b) any particular contained, or claim made, in the statement; or (c) any goods or services referred to in the statement. Maximum penalty: $10 000. 42—Recreational services (1) Subject to this section, a term of a contract for the supply of recreational services by a person (the supplier) to a consumer may exclude, restrict or modify a guarantee that would otherwise have been implied in the contract under section 60 or 61 of the Australian Consumer Law. (2) Subsection (1) applies only if— (a) the exclusion, restriction or modification contained in the term is limited to excluding, restricting or modifying the liability of the supplier for any personal injury suffered by the consumer or another person for whom or on whose behalf the consumer is acquiring the services (a third party consumer); and (b) the term contains the prescribed particulars and is in the prescribed form; and (c) the term is brought to the attention of the consumer and any third party consumer prior to the supply of the services; and (d) the consumer agrees to the term in the prescribed manner; and (e) a statement containing any other information prescribed by regulation is made available to the consumer and any third party consumer in accordance with the requirements prescribed by regulation. (3) Subsection (1) does not operate to exclude, restrict or modify the liability of the supplier for damages for any significant personal injury suffered by the consumer or any third party consumer if it is established (by applying the general principles set out in section 34 of the Civil Liability Act 1936) that the reckless conduct of the supplier caused the injury. (4) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void if it purports to indemnify, or has the effect of indemnifying, a person who supplies recreational services in relation to any liability that may not be excluded, restricted or modified under this Act or any other Act or law. (5) Subsection (4) does not apply in respect of a contract of insurance. (6) The Commissioner for Consumer Affairs must publish information setting out the rights of consumers in relation to contracts for the supply of recreational services on a website determined by the Commissioner. (7) In this section— conduct includes any act or omission; personal injury means bodily injury and includes— (a) mental and nervous shock; and (b) death; reckless—a person's conduct is reckless if the person— (a) is aware, or should reasonably have been aware, of a significant risk that his or her conduct could result in personal injur