Fair Trading Amendment Bill 2021 - Fair Trading Act 2010

Australia / Western Australia / Bills

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Bill No.19

23 Jun 2021

Legislative Council Third Read - 10 Aug 2022

Western Australia

Fair Trading Act 2010

Incorporating the amendments proposed

by the Fair Trading Amendment Bill 2021

(Bill No. 19-2)

page i [This compilation shows amendments proposed by Bill No. 19-2.]

Western Australia

Fair Trading Act 2010

Contents

Part 1 — Preliminary

1. Short title 2 2. Commencement 2 3. Object of Act 2

Part 2 — Interpretation and

application

Division 1 — General interpretation 4. Which interpretation Act applies to ACL (WA) 3 5. Application of s. 6-9 and 17 3 6. Terms used 3 7. Term used: consumer 4 8. Term used: services 5 9. Further provisions about interpretation 6

Division 2 — Application 10. Act binds Crown 8 11. Territorial application of Act 9 12. Concurrent operation of laws of other jurisdictions

not limited 10 13. No contracting out 10 14. Relationship with other Acts and rules of law 10 15. Inconsistencies with other enactments 11

Part 3 — The Australian Consumer

Law

Division 1 — Object and interpretation 16. Object of this Part 12 17. Terms used 12

Division 2 — Application of Australian

Consumer Law 18. Australian Consumer Law text 14 19. Application of Australian Consumer Law text 14 19A. Tabling amending laws 15 19B. Disallowance of amending laws 15 19C. Commencement of amending laws 16 19D. Amending laws enacted after 1 June 2021 but

before commencement day 17 19E. Tabling of amending law taken to be publication

for Standing Orders 17

Fair Trading Act 2010

Contents

page ii [This compilation shows amendments proposed by Bill No. 19-2.]

21. Certain instruments to be published, and may be

disallowed by Parliament 17 22. Term used in ACL (WA): regulator 18 23. ACL (WA), interpretation of 18 24. ACL (WA), application of 19

Division 3 — References to Australian

Consumer Law 25. References to Australian Consumer Law 19 26. References to Australian Consumer Law of other

jurisdictions 20

Division 4 — Application of Australian

Consumer Law to Crown 27. Division does not apply to Commonwealth 20 28. Application law of this jurisdiction binds Crown 20 29. Application law of other jurisdictions binds Crown 20 30. Crown not liable to pecuniary penalty or

prosecution 20

Division 5 — Miscellaneous 31. No doubling-up of criminal liabilities 21 32. Offences against ACL (WA) are crimes 21 33. Pecuniary penalty proceedings under ACL (WA)

s. 224, civil rules of evidence etc. apply 22 35. Sale of Goods Act 1895, inconsistency with certain

provisions of ACL (WA) 22

Division 6 — Transitional 37. Certain injunction proceedings pending at

1 Jan 2011 23 38. ACL (WA) Part 2-3 (unfair contract terms),

application of to contracts made on or after

1 Jan 2011 24 39. ACL (WA) Part 3-2 Div. 2 (unsolicited consumer

agreements), application of to contracts made

before 1 Jan 2011 etc. 24 40. ACL (WA) s. 101 (requests for itemised bills),

application of for services supplied before 1 Jan

2011 25 41. ACL (WA) s. 224(4)(c), interpretation of 25

Part 4 — Codes of practice

Division 1 — Preliminary 42. Outline of this Part 26 43. Term used: code of practice 26

Division 2 — Development and implementation

of codes of practice 44. Draft codes of practice, preparation of 26 45. Regulations prescribing code of practice 27 46. Interim code of practice, regulations may prescribe 27

Fair Trading Act 2010

Contents

page iii [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — Enforcement of codes of practice 47. SAT’s powers to deal with contraventions of

prescribed code of practice 28 48. Commissioner may take or defend, or assume the

conduct or defence of, proceedings relating to

contravention of code of practice 29 49. Provisions for proceedings Commissioner

institutes, defends or assumes conduct or defence

of 30 50. No doubling-up of liabilities 31 51. Action taken for breach of code of practice doesn’t

preclude other civil action 31 52. Transitional provisions for codes of practice

prescribed before 1 Jan 2011 31 53. Transitional provisions for undertakings under

Fair Trading Act 1987 s. 44 32 54. Transitional provisions for contraventions of code

of practice before 1 Jan 2011 33

Part 5 — Administrative provisions

Division 1 — Commissioner 55. Commissioner, designation and title of 34 56. General functions of Commissioner 34 57A. Licensing and regulatory functions of

Commissioner 35 57. Warnings and information, Commissioner may

issue 36 58. Instituting, defending or assuming conduct or

defence of legal proceedings on behalf of

consumers or businesses 36 59. Provisions for proceedings Commissioner

institutes, defends or assumes conduct or defence

of 38 60. Delegation by Commissioner 39 61. Judicial notice of Commissioner’s signature etc. 40

Division 2 — Offence 62. Advertisements not to imply approval by consumer

affairs authority 40

Division 3 — Advisory committees

Subdivision 1 — Property Industry Advisory

Committee 63A. Committee established 42 63B. Membership 42 63C. Functions 42 63D. Procedure 43

Subdivision 2 — Motor Vehicle Industry Advisory

Committee 63E. Committee established 43

Fair Trading Act 2010

Contents

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63F. Membership 43 63G. Functions 43 63H. Procedure 44

Subdivision 3 — Consumer Advisory Committee 63I. Committee established 44 63J. Membership 44 63K. Functions 44 63L. Procedure 45

Subdivision 4 — Regulations prescribing committee

procedures, etc. 63M. Regulations 45

Part 6 — Investigation and

enforcement

Division 1 — Preliminary 63. Terms used 46 64A. Authorised persons cannot be public officers under

Criminal Investigation Act 2006 46

Division 2 — Investigators 64. Designating people as investigators 46 65. Certificate of authority of investigator 47 66. Certificate of authority to be produced on demand 47 67. Persons assisting investigators 47

Division 3 — General powers 68. Investigations and inquiries, Commissioner’s

powers to make 48 69. Investigations and inquiries, powers for 48 70. Interviews under s. 69(1)(a), conduct of 50 71. Warrant to enter premises or motor vehicle 50 72. Warrants wanted urgently, may be obtained by

telephone etc. 51 73. Warrants by telephone etc., further provisions for 52 74. Warrants, issue and effect of 53 75. Warrants, powers under to obtain access

information for computers etc. 54 76. Warrants, further powers under 55 77. Damage to equipment or data, compensation for 55 78. Warrants, execution and duration of 56 79. Seizing things 57 80. Seized things, copies of to be provided 58 81. Seized things, access to by owner 58 82. Seized things, return of 58 83. Seizure, SAT may review 59 84. Seized things, forfeiture of 59 85. Forfeited things, dealing with 60 86. Privilege against self-incrimination doesn’t apply 60 87. Information obtained, use of etc. 61

Fair Trading Act 2010

Contents

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Division 4A — Specific powers for enforcement

of licensing and regulatory provisions 88A. Terms used 61 88B. Investigations and inquiries for licensing and

regulatory purposes, Commissioner’s powers to

make 61 88C. Authorised persons’ powers for this Division 62 88D. Police assistance with investigations and inquiries 62 88E. Compliance checks at regulated person’s business

premises, powers for 63

Division 4 — Offences 88. Failing to cooperate with investigation 64 89. Obstructing authorised person 65

Part 7 — Criminal and civil

proceedings

Division 1 — Preliminary 90. Term used: person involved in a contravention of a

provision of this Act 66

Division 2 — Criminal proceedings 91. Time limit for commencing proceedings 66 92. Who may institute criminal proceedings 66 93. Court of summary jurisdiction to be constituted by

magistrate 67 94. Courts’ other powers in criminal proceedings 67 95. Vicarious liability of directors, employers etc. 67 96. Defence: reasonable mistake of fact 69 97. Defences: accident, act or default of another etc. 70 98. Defence: publication of advertisements in ordinary

course of business 70

Division 3 — Civil proceedings 99. Injunctions to prevent or stop contraventions of

Act 71 100. Injunctions to prevent etc. other contraventions 71 101. Injunctions, general provisions about 72 102. Interim injunctions 73 103. Final injunction may be granted if parties consent 73 104. Injunction may be rescinded or varied 73 105. Supreme and District Courts’ other powers in

Part 7 proceedings 73 106. Supreme and District Courts’ powers to prohibit

payments, transfers of property etc. 75 107. Contravening s. 106 order, offence 77 108. Findings of fact or admissions in certain

proceedings to be evidence in others 78

Fair Trading Act 2010

Contents

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Division 4 — Further provisions relating to

proceedings 109. State of mind of person, meaning of in s. 110 and

111 78 110. State of mind and conduct of body corporate,

establishing 78 111. State of mind and conduct of principal (not a body

corporate), establishing 79

Part 8 — Miscellaneous

112. Personal information obtained officially, when

may be divulged etc. 81 113. Information obtained officially may be used for

certain other purposes and legislation 82 114. Protection from liability for wrongdoing 82 115. Protection from liability for publishing official

statements 83 116. Regulations 83

Part 9 — Transitional provisions

117. Regulations for transitional matters 85 118. Fair Trading (Product Information Standard)

Regulation 2005 Part 4 (builders plates for

recreational vessels), continuation of 86 119. Orders made before 1 Jan 2011 recalling defective

goods etc., effect of 86 120. Delegations made before 1 Jan 2011, effect of 86 121. Interpretation Act 1984, application of to expiring

Acts 86

Schedule 1 — Acts that override the

Australian Consumer Law (WA)

Part 3-3

Schedule 2 — Registration Acts

Notes

Compilation table 89 Uncommenced provisions table 90 Other notes 90

Note — Australian Consumer Law

(WA) text

Chapter 1 — Introduction

1. Application of this Schedule 91 2. Definitions 91 3. Meaning of consumer 104

Fair Trading Act 2010

Contents

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4. Misleading representations with respect to future

matters 107 5. When donations are treated as supplies or

acquisitions 108 6. Related bodies corporate 108 7. Meaning of manufacturer 108 8. Goods affixed to land or premises 109 9. Meaning of safety defect in relation to goods 109 10. Asserting a right to payment 110 11. References to acquisition, supply and re-supply 111 12. Application of Schedule in relation to leases and

licences of land and buildings 112 13. Loss or damage to include injury 112 14. Meaning of continuing credit contract 112 15. Contraventions of this Schedule 113 16. Severability 113 17. References to provisions in this Schedule 113

Chapter 2 — General protections

Part 2-1 — Misleading or deceptive

conduct

18. Misleading or deceptive conduct 114 19. Application of this Part to information providers 114

Part 2-2 — Unconscionable conduct

20. Unconscionable conduct within the meaning of the

unwritten law 115 21. Unconscionable conduct in connection with goods

or services 116 22. Matters the court may have regard to for the

purposes of section 21 117 22A. Presumptions relating to whether representations

are misleading 119

Part 2-3 — Unfair contract terms

23. Unfair terms of consumer contracts and small

business contracts 120 24. Meaning of unfair 120 25. Examples of unfair terms 121 26. Terms that define main subject matter of consumer

contracts or small business contracts etc. are

unaffected 122 27. Standard form contracts 123 28. Contracts to which this Part does not apply 123

Fair Trading Act 2010

Contents

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Chapter 3 — Specific protections

Part 3-1 — Unfair practices

Division 1 — False or misleading

representations etc. 29. False or misleading representations about goods or

services 124 30. False or misleading representations about sale etc.

of land 125 31. Misleading conduct relating to employment 126 32. Offering rebates, gifts, prizes etc. 126 33. Misleading conduct as to the nature etc. of goods 127 34. Misleading conduct as to the nature etc. of services 128 35. Bait advertising 128 36. Wrongly accepting payment 128 37. Misleading representations about certain business

activities 130 38. Application of provisions of this Division to

information providers 130

Division 2 — Unsolicited supplies 39. Unsolicited cards etc. 131 40. Assertion of right to payment for unsolicited goods

or services 133 41. Liability etc. of recipient for unsolicited goods 133 42. Liability of recipient for unsolicited services 135 43. Assertion of right to payment for unauthorised

entries or advertisements 135

Division 3 — Pyramid schemes 44. Participation in pyramid schemes 136 45. Meaning of pyramid scheme 137 46. Marketing schemes as pyramid schemes 138

Division 4 — Pricing 47. Multiple pricing 139 48. Single price to be specified in certain

circumstances 140

Division 5 — Other unfair practices 49. Referral selling 143 50. Harassment and coercion 143

Part 3-2 — Consumer transactions

Division 1 — Consumer guarantees

Subdivision A — Guarantees relating to the supply

of goods 51. Guarantee as to title 144 52. Guarantee as to undisturbed possession 144 53. Guarantee as to undisclosed securities etc. 145 54. Guarantee as to acceptable quality 145

Fair Trading Act 2010

Contents

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55. Guarantee as to fitness for any disclosed purpose

etc. 147 56. Guarantee relating to the supply of goods by

description 148 57. Guarantees relating to the supply of goods by

sample or demonstration model 148 58. Guarantee as to repairs and spare parts 148 59. Guarantee as to express warranties 149

Subdivision B — Guarantees relating to the supply

of services 60. Guarantee as to due care and skill 149 61. Guarantees as to fitness for a particular purpose

etc. 150 62. Guarantee as to reasonable time for supply 150 63. Services to which this Subdivision does not apply 151

Subdivision C — Guarantees not to be excluded etc.

by contract 64. Guarantees not to be excluded etc. by contract 151 64A. Limitation of liability for failures to comply with

guarantees 151

Subdivision D — Miscellaneous 65. Application of this Division to supplies of gas,

electricity and telecommunications 153 66. Display notices 153 67. Conflict of laws 154 68. Convention on Contracts for the International Sale

of Goods 154

Division 2 — Unsolicited consumer agreements

Subdivision A — Introduction 69. Meaning of unsolicited consumer agreement 154 70. Presumption that agreements are unsolicited

consumer agreements 156 71. Meaning of dealer 156 72. Meaning of negotiation 156

Subdivision B — Negotiating unsolicited consumer

agreements 73. Permitted hours for negotiating an unsolicited

consumer agreement 157 74. Disclosing purpose and identity 157 75. Ceasing to negotiate on request 157 76. Informing person of termination period etc. 158 77. Liability of suppliers for contraventions by dealers 159

Subdivision C — Requirements for unsolicited

consumer agreements etc. 78. Requirement to give document to the consumer 159 79. Requirements for all unsolicited consumer

agreements etc. 160

Fair Trading Act 2010

Contents

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80. Additional requirements for unsolicited consumer

agreements not negotiated by telephone 161 81. Requirements for amendments of unsolicited

consumer agreements 161

Subdivision D — Terminating unsolicited

consumer agreements 82. Terminating an unsolicited consumer agreement

during the termination period 161 83. Effect of termination 163 84. Obligations of suppliers on termination 164 85. Obligations and rights of consumers on termination 164 86. Prohibition on supplies etc. 166 87. Repayment of payments received after termination 166 88. Prohibition on recovering amounts after

termination 167

Subdivision E — Miscellaneous 89. Certain provisions of unsolicited consumer

agreements void 168 90. Waiver of rights 168 91. Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc. 168 92. Application of this Division to supplies to third

parties 169 93. Effect of contravening this Division 169 94. Regulations may limit the application of this

Division 169 95. Application of this Division to certain conduct

covered by the Corporations Act 169

Division 3 — Lay-by agreements 96. Lay-by agreements must be in writing etc. 170 97. Termination of lay-by agreements by consumers 170 98. Termination of lay-by agreements by suppliers 171 99. Effect of termination 171

Division 3A—Gift cards

Subdivision A—Introduction 99A. Meaning of gift card 172

Subdivision B—Requirements relating to gift cards 99B. Gift cards to be redeemable for at least 3 years 172 99C. When gift card ceases to be redeemable to appear

prominently on gift card 172 99D. Terms and conditions not to allow post-supply fees 173 99E. Post-supply fees not to be demanded or received 173 99F. Certain terms and conditions of gift card void 173

Subdivision C—Miscellaneous 99G. Regulations may limit application of this Division 174

Division 4 — Miscellaneous 100. Supplier must provide proof of transaction etc. 174

Fair Trading Act 2010

Contents

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101. Consumer may request an itemised bill 175 102. Prescribed requirements for warranties against

defects 176 103. Repairers must comply with prescribed

requirements 177

Part 3-3 — Safety of consumer goods

and product related services

Division 1 — Safety standards 104. Making safety standards for consumer goods and

product related services 177 105. Declaring safety standards for consumer goods and

product related services 178 106. Supplying etc. consumer goods that do not comply

with safety standards 178 107. Supplying etc. product related services that do not

comply with safety standards 180 108. Requirement to nominate a safety standard 181

Division 2 — Bans on consumer goods and

product related services

Subdivision A — Interim bans 109. Interim bans on consumer goods or product related

services that will or may cause injury to any person

etc. 181 110. Places in which interim bans apply 182 111. Ban period for interim bans 182 112. Interaction of multiple interim bans 183 113. Revocation of interim bans 184

Subdivision B — Permanent bans 114. Permanent bans on consumer goods or product

related services 184 115. Places in which permanent bans apply 185 116. When permanent bans come into force 185 117. Revocation of permanent bans 185

Subdivision C — Compliance with interim bans and

permanent bans 118. Supplying etc. consumer goods covered by a ban 185 119. Supplying etc. product related services covered by

a ban 187

Subdivision D — Temporary exemption from

mutual recognition principles 120. Temporary exemption under the Trans-Tasman

Mutual Recognition Act 1997 187 121. Temporary exemption under the Mutual

Recognition Act 1992 188

Fair Trading Act 2010

Contents

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Division 3 — Recall of consumer goods

Subdivision A — Compulsory recall of consumer

goods 122. Compulsory recall of consumer goods 188 123. Contents of a recall notice 189 124. Obligations of a supplier in relation to a recall

notice 190 125. Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall 190 126. Interaction of multiple recall notices 191 127. Compliance with recall notices 191

Subdivision B — Voluntary recall of consumer goods 128. Notification requirements for a voluntary recall of

consumer goods 192

Division 4 — Safety warning notices 129. Safety warning notices about consumer goods and

product related services 194 130. Announcement of the results of an investigation

etc. 194

Division 5 — Consumer goods, or product

related services, associated with death or

serious injury or illness 131. Suppliers to report consumer goods associated with

the death or serious injury or illness of any person 196 132. Suppliers to report product related services

associated with the death or serious injury or

illness of any person 197 132A. Confidentiality of notices given under this Division 199

Division 6 — Miscellaneous 133. Liability under a contract of insurance 200

Part 3-4 — Information standards

134. Making information standards for goods and

services 201 135. Declaring information standards for goods and

services 201 136. Supplying etc. goods that do not comply with

information standards 202 137. Supplying etc. services that do not comply with

information standards 203 137A. Safe harbour for complying with information

standards about free range eggs 204

Fair Trading Act 2010

Contents

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Part 3-5 — Liability of

manufacturers for goods with

safety defects

Division 1 — Actions against manufacturers for

goods with safety defects 138. Liability for loss or damage suffered by an injured

individual 204 139. Liability for loss or damage suffered by a person

other than an injured individual 205 140. Liability for loss or damage suffered by a person if

other goods are destroyed or damaged 205 141. Liability for loss or damage suffered by a person if

land, buildings or fixtures are destroyed or

damaged 206 142. Defences to defective goods actions 206

Division 2 — Defective goods actions 143. Time for commencing defective goods actions 207 144. Liability joint and several 207 145. Survival of actions 207 146. No defective goods action where workers’

compensation law etc. applies 207 147. Unidentified manufacturer 208 148. Commonwealth liability for goods that are

defective only because of compliance with

Commonwealth mandatory standard 208 149. Representative actions by the regulator 209

Division 3 — Miscellaneous 150. Application of all or any provisions of this Part etc.

not to be excluded or modified 209

Chapter 4 — Offences

Part 4-1 — Offences relating to

unfair practices

Division 1 — False or misleading

representations etc. 151. False or misleading representations about goods or

services 209 152. False or misleading representations about sale etc.

of land 211 153. Misleading conduct relating to employment 213 154. Offering rebates, gifts, prizes etc. 213 155. Misleading conduct as to the nature etc. of goods 215 156. Misleading conduct as to the nature etc. of services 216 157. Bait advertising 216 158. Wrongly accepting payment 218

Fair Trading Act 2010

Contents

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159. Misleading representations about certain business

activities 220 160. Application of provisions of this Division to

information providers 221

Division 2 — Unsolicited supplies 161. Unsolicited cards etc. 222 162. Assertion of right to payment for unsolicited goods

or services 223 163. Assertion of right to payment for unauthorised

entries or advertisements 224

Division 3 — Pyramid schemes 164. Participation in pyramid schemes 226

Division 4 — Pricing 165. Multiple pricing 227 166. Single price to be specified in certain

circumstances 227

Division 5 — Other unfair practices 167. Referral selling 229 168. Harassment and coercion 230

Part 4-2 — Offences relating to

consumer transactions

Division 1 — Consumer guarantees 169. Display notices 232

Division 2 — Unsolicited consumer agreements

Subdivision A — Negotiating unsolicited consumer

agreements 170. Permitted hours for negotiating an unsolicited

consumer agreement 232 171. Disclosing purpose and identity 233 172. Ceasing to negotiate on request 233 173. Informing person of termination period etc. 234

Subdivision B — Requirements for unsolicited

consumer agreements etc. 174. Requirement to give document to the consumer 235 175. Requirements for all unsolicited consumer

agreements etc. 236 176. Additional requirements for unsolicited consumer

agreements not negotiated by telephone 237 177. Requirements for amendments of unsolicited

consumer agreements 238

Subdivision C — Terminating unsolicited consumer

agreements 178. Obligations of suppliers on termination 238 179. Prohibition on supplies etc. 238 180. Repayment of payments received after termination 239

Fair Trading Act 2010

Contents

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181. Prohibition on recovering amounts after

termination 240

Subdivision D — Miscellaneous 182. Certain provisions of unsolicited consumer

agreements void 240 183. Waiver of rights 241 184. Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc. 241 185. Application of this Division to supplies to third

parties 241 186. Regulations may limit the application of this

Division 241 187. Application of this Division to certain conduct

covered by the Corporations Act 242

Division 3 — Lay-by agreements 188. Lay-by agreements must be in writing etc. 242 189. Termination charges 242 190. Termination of lay-by agreements by suppliers 243 191. Refund of amounts 243

Division 3A—Gift cards 191A. Gift cards to be redeemable for at least 3 years 244 191B. When gift card ceases to be redeemable to appear

prominently on gift card 244 191C. Terms and conditions not to allow post-supply fees 245 191D. Post-supply fees not to be demanded or received 245 191E. Regulations may limit the application of this

Division 245

Division 4 — Miscellaneous 192. Prescribed requirements for warranties against

defects 245 193. Repairers must comply with prescribed

requirements 246

Part 4-3 — Offences relating to safety

of consumer goods and product

related services

Division 1 — Safety standards 194. Supplying etc. consumer goods that do not comply

with safety standards 246 195. Supplying etc. product related services that do not

comply with safety standards 248 196. Requirement to nominate a safety standard 249

Division 2 — Bans on consumer goods and

product related services 197. Supplying etc. consumer goods covered by a ban 249 198. Supplying etc. product related services covered by

a ban 250

Fair Trading Act 2010

Contents

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Division 3 — Recall of consumer goods 199. Compliance with recall orders 251 200. Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall 252 201. Notification requirements for a voluntary recall of

consumer goods 252

Division 4 — Consumer goods, or product

related services, associated with death or

serious injury or illness 202. Suppliers to report consumer goods etc. associated

with the death or serious injury or illness of any

person 253

Part 4-4 — Offences relating to

information standards

203. Supplying etc. goods that do not comply with

information standards 253 204. Supplying etc. services that do not comply with

information standards 255

Part 4-5 — Offences relating to

substantiation notices

205. Compliance with substantiation notices 256 206. False or misleading information etc. 256

Part 4-6 — Defences

207. Reasonable mistake of fact 257 208. Act or default of another person etc. 257 209. Publication of advertisements in the ordinary

course of business 258 210. Supplying goods acquired for the purpose of

re-supply 258 211. Supplying services acquired for the purpose of

re-supply 259

Part 4-7 — Miscellaneous

212. Prosecutions to be commenced within 3 years 260 213. Preference must be given to compensation for

victims 260 214. Penalties for contraventions of the same nature etc. 261 215. Penalties for previous contraventions of the same

nature etc. 262 216. Granting of injunctions etc. 262 217. Criminal proceedings not to be brought for

contraventions of Chapter 2 or 3 262

Fair Trading Act 2010

Contents

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Chapter 5 — Enforcement and

remedies

Part 5-1 — Enforcement

Division 1 — Undertakings 218. Regulator may accept undertakings 263

Division 2 — Substantiation notices 219. Regulator may require claims to be substantiated

etc. 264 220. Extending periods for complying with

substantiation notices 265 221. Compliance with substantiation notices 265 222. False or misleading information etc. 266

Division 3 — Public warning notices 223. Regulator may issue a public warning notice 266

Part 5-2 — Remedies

Division 1 — Pecuniary penalties 224. Pecuniary penalties 267 225. Pecuniary penalties and offences 272 226. Defence 273 227. Preference must be given to compensation for

victims 273 228. Civil action for recovery of pecuniary penalties 274 229. Indemnification of officers 274 230. Certain indemnities not authorised and certain

documents void 274

Division 2 — Injunctions 232. Injunctions 274 233. Consent injunctions 276 234. Interim injunctions 276 235. Variation and discharge of injunctions 277

Division 3 — Damages 236. Actions for damages 277

Division 4 — Compensation orders etc. for

injured persons and orders for non-party

consumers

Subdivision A — Compensation orders etc. for

injured persons 237. Compensation orders etc. on application by an

injured person or the regulator 277 238. Compensation orders etc. arising out of other

proceedings 278

Subdivision B — Orders for non-party consumers 239. Orders to redress etc. loss or damage suffered by

non-party consumers 278

Fair Trading Act 2010

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240. Determining whether to make a redress order etc.

for non-party consumers 280 241. When a non-party consumer is bound by a redress

order etc. 280

Subdivision C — Miscellaneous 242. Applications for orders 281 243. Kinds of orders that may be made 281 244. Power of a court to make orders 282 245. Interaction with other provisions 282

Division 5 — Other remedies 246. Non-punitive orders 282 247. Adverse publicity orders 284 248. Order disqualifying a person from managing

corporations 284 249. Privilege against exposure to penalty or forfeiture

— disqualification from managing corporations 285 250. Declarations relating to consumer contracts and

small business contracts 286

Division 6 — Defences 251. Publication of advertisement in the ordinary course

of business 286 252. Supplying consumer goods for the purpose of

re-supply 287 253. Supplying product related services for the purpose

of re-supply 288

Part 5-3 — Country of origin

representations

254. Overview 289 255. Country of origin representations do not

contravene certain provisions 289 258. Proceedings relating to false, misleading or

deceptive conduct or representations 291

Part 5-4 — Remedies relating to

guarantees

Division 1 — Action against suppliers

Subdivision A — Action against suppliers of goods 259. Action against suppliers of goods 291 260. When a failure to comply with a guarantee is a

major failure 292 261. How suppliers may remedy a failure to comply

with a guarantee 293 262. When consumers are not entitled to reject goods 293 263. Consequences of rejecting goods 294 264. Replaced goods 295 265. Termination of contracts for the supply of services

that are connected with rejected goods 295

Fair Trading Act 2010

Contents

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266. Rights of gift recipients 296

Subdivision B — Action against suppliers of services 267. Action against suppliers of services 296 268. When a failure to comply with a guarantee is a

major failure 297 269. Termination of contracts for the supply of services 298 270. Termination of contracts for the supply of goods

that are connected with terminated services 298

Division 2 — Action for damages against

manufacturers of goods 271. Action for damages against manufacturers of

goods 299 272. Damages that may be recovered by action against

manufacturers of goods 301 273. Time limit for actions against manufacturers of

goods 301

Division 3 — Miscellaneous 274. Indemnification of suppliers by manufacturers 301 275. Limitation of liability etc. 302 276. This Part not to be excluded etc. by contract 303 276A. Limitation in certain circumstances of liability of

manufacturer to seller 303 277. Representative actions by the regulator 304

Part 5-5 — Liability of suppliers and

credit providers

Division 1 — Linked credit contracts 278. Liability of suppliers and linked credit providers

relating to linked credit contracts 304 279. Action by consumer to recover amount of loss or

damage 305 280. Cases where a linked credit provider is not liable 306 281. Amount of liability of linked credit providers 307 282. Counter-claims and offsets 308 283. Enforcement of judgments etc. 308 284. Award of interest to consumers 310 285. Liability of suppliers to linked credit providers,

and of linked credit providers to suppliers 310 286. Joint liability proceedings and recovery under

section 135 of the National Credit Code 311

Division 2 — Non-linked credit contracts 287. Liability of suppliers and credit providers relating

to non-linked credit contracts 312

Fair Trading Act 2010

Contents

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Chapter 6—Application and

transitional provisions

Part 1—Application and transitional

provisions relating to the

Consumer Credit Legislation

Amendment (Enhancements) Act

2012

288. Application of amendments relating to lay-by

agreements 313 289. Application of amendment relating to repairs 313 290. Saving of regulations relating to repairs 313

Part 1A—Application provision

relating to the Treasury

Legislation Amendment (Small

Business and Unfair Contract

Terms) Act 2015

290A. Application 313

Part 2—Application and transitional

provisions relating to the

Competition and Consumer

Amendment (Competition Policy

Review) Act 2017

291. Application of amendments relating to

confidentiality of notices 314 292. Application of amendments relating to prohibition

on supplies 314

Part 3—Application provision

relating to the Treasury Laws

Amendment (2018 Measures

No. 3) Act 2018

295. Application of amendments 315

Part 4—Application provisions

relating to the Treasury Laws

Amendment (Australian

Consumer Law Review) Act 2018

296. Application—listed public companies 315 297. Application—unsolicited supplies 315 298. Application—unsolicited consumer agreements 315 299. Application—single price 315

Fair Trading Act 2010

Contents

page xxi [This compilation shows amendments proposed by Bill No. 19-2.]

300. Application—non-punitive orders 315 301. Application—guarantees relating to the supply of

services 316

Part 5—Application and transitional

provisions relating to the

Treasury Laws Amendment (Gift

Cards) Act 2018

302. Application of amendments relating to gift cards 316

page 1 [This compilation shows amendments proposed by Bill No. 19-2.]

Western Australia

Fair Trading Act 2010

An Act to —

• promote and encourage fair trading practices and a competitive

and fair market, and protect the interests of consumers, by

applying the Australian Consumer Law (with modifications) as a

law of Western Australia, and providing for codes of practice;

and

• provide for the powers and functions of a Commissioner,

including powers to carry out investigations into alleged

breaches of this Act; and

• provide for the repeal of the Consumer Affairs Act 1971, Fair

Trading Act 1987 and Door to Door Trading Act 1987; and

• make consequential amendments to various Acts 1,

and for related purposes.

Fair Trading Act 2010

Part 1 Preliminary

s. 1

page 2 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 1 — Preliminary

1. Short title

This is the Fair Trading Act 2010.

2. Commencement

This Act comes into operation as follows —

(a) sections 1 and 2 — on the day on which this Act

receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation,

and different days may be fixed for different provisions.

3. Object of Act

The object of this Act is to improve consumer well-being

through consumer empowerment and protection, to foster

effective competition, and to enable the confident participation

of consumers in markets in which both consumers and suppliers

trade fairly.

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 4

page 3 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2 — Interpretation and application

Division 1 — General interpretation

4. Which interpretation Act applies to ACL (WA)

Section 23 deals with the application of the Acts Interpretation

Act 1901 (Commonwealth) and the Interpretation Act 1984 of

Western Australia to the Australian Consumer Law (WA).

5. Application of s. 6-9 and 17

(1) Sections 6 to 9 apply to this Act other than Part 3 and the

Australian Consumer Law (WA).

(2) Section 17 applies to the interpretation of terms used in Part 3

and the Australian Consumer Law (WA).

6. Terms used

In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

acquire includes —

(a) in relation to goods — acquire by purchase or exchange

or by taking on lease, on hire or on hire-purchase; and

(b) in relation to services — accept; and

or exchange or by taking on lease, or in any other

manner in which an interest in land may be acquired for

valuable consideration;

Australian Consumer Law (WA) has the meaning given in

section 17;

business includes —

(a) a business not carried on for profit; and

(b) a trade or profession;

Commissioner means the person for the time being designated

as the Commissioner under section 55;

consumer has the meaning given in section 7;

Department means the department of the Public Service

principally assisting the Minister in the administration of this

Act;

disposal, in relation to an interest in land, means disposal by

sale, exchange or lease or by any other method by which an

interest in land may be disposed of for valuable consideration;

Fair Trading Act 2010

Part 2 Interpretation and application

Division 1 General interpretation

s. 7

page 4 [This compilation shows amendments proposed by Bill No. 19-2.]

document has the meaning given in the Australian Consumer

Law (WA) section 2(1);

goods has the meaning given in the Australian Consumer

Law (WA) section 2(1);

interest has the meaning given in the Australian Consumer

Law (WA) section 2(1);

provision, in relation to an understanding, means any matter

forming part of the understanding;

re-supply, in relation to goods acquired from a person,

includes —

(a) a supply of the goods to another person in an altered

form or condition; and

(b) a supply to another person of goods in which the

first-mentioned goods have been incorporated;

services has the meaning given in section 8;

supplier means a person who, in the course of business, supplies

goods or services;

supply includes —

(a) in relation to goods —

(i) supply (including re-supply) by way of sale,

exchange, lease, hire or hire-purchase; and

(ii) exhibit, expose or have in possession for the

purpose of sale, exchange, lease, hire or

hire-purchase or for any purpose of

advertisement, manufacture or trade;

and

(b) in relation to services — provide, grant or render for

valuable consideration; and

promotional purposes;

trade or commerce includes any business or professional

activity (whether or not carried on for profit).

7. Term used: consumer

(1) In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

consumer means —

(a) a person who purchases or takes on hire or lease, or is a

potential purchaser or hirer or lessee of, or borrows

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 8

page 5 [This compilation shows amendments proposed by Bill No. 19-2.]

money for the purpose of purchasing, goods otherwise

than for resale or letting on hire or leasing; or

(b) a person who uses or is a potential user of, or borrows

money for the purpose of using, any service rendered for

fee or reward; or

or borrows money for the purpose of purchasing, an

estate or interest in any land or building otherwise than

for resale, letting or leasing; or

(d) a person who becomes a tenant or lessee of, or is a

potential tenant or lessee of, any land or building or part

of a building otherwise than for assignment or

underletting.

(2) However, a person who carries on a trade or business is not a

consumer for the purposes of subsection (1) in respect of or in

relation to —

(a) goods purchased or taken on hire or lease by that person,

or of which that person is a potential purchaser, hirer or

lessee, in the course of or for the purpose of the carrying

on of that trade or business;

(b) a service used by that person, or of which the person is a

potential user, in the course of or for the purpose of the

carrying on of that trade or business;

that person, or of which the person is a potential

purchaser, in the course of or for the purpose of the

carrying on of that trade or business;

(d) any land or building or part of a building of which the

person becomes the tenant or lessee, or is a potential

tenant or lessee, in the course of or for the purpose of the

carrying on of that trade or business.

(3) A person who carries on an agricultural, apicultural, pastoral,

horticultural, orcharding, viticultural or other farming

undertaking does not carry on a trade or business for the

purposes of subsection (2).

8. Term used: services

(1) In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

services includes any rights (including rights in relation to, and

interests in, real or personal property), benefits, privileges or

Fair Trading Act 2010

Part 2 Interpretation and application

Division 1 General interpretation

s. 9

page 6 [This compilation shows amendments proposed by Bill No. 19-2.]

facilities that are, or are to be, provided, granted or conferred in

trade or commerce.

(2) Without limiting the generality of subsection (1), the definition

of services includes the rights, benefits, privileges and facilities

that are, or are to be, provided, granted or conferred under —

(a) a contract for or in relation to —

(i) the performance of work (including work of a

professional nature), whether with or without the

supply of goods; or

(ii) the provision of gas or electricity or the provision

of any other form of energy; or

(iii) the provision for reward of lodging or

accommodation; or

(iv) the provision, or making available for use, of

facilities for amusement, entertainment,

recreation or instruction; or

(v) the conferring of rights, benefits or privileges for

which remuneration is payable in the form of a

royalty, tribute, levy or similar exaction;

(b) a contract of insurance; or

banker entered into in the course of the carrying on by

the banker of the business of banking; or

(d) a contract for or in relation to the lending of money.

(3) The definition of services does not include rights or benefits

being the supply of goods or the performance of work under a

contract of service.

(4) Legal services as defined in the Legal Profession Uniform

Law (WA) section 6(1) are not services for the purposes of this

section.

[Section 8 amended: No. 9 of 2022 s. 424.]

9. Further provisions about interpretation

(1) In this Act (other than Part 3 and the Australian Consumer

Law (WA)), unless the contrary intention appears —

(a) a reference to the supply or acquisition of goods

includes a reference to agreeing to supply or acquire

goods; and

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 9

page 7 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a reference to the acquisition of goods includes a

reference to the acquisition of property in, or rights in

relation to, goods upon a supply of the goods; and

includes a reference to agreeing to supply or acquire

services; and

(d) a reference to the supply or acquisition of goods

includes a reference to the supply or acquisition of

goods together with other property or services, or both;

and

(e) a reference to the supply or acquisition of services

includes a reference to the supply or acquisition of

services together with goods or other property or other

services; and

(f) a reference to the disposal or acquisition of an interest in

land includes a reference to the disposal or acquisition of

such an interest together with goods or services; and

(g) a reference to goods or services includes a reference to

goods and services; and

(h) a reference to the disposal or acquisition of an interest in

land includes a reference to agreeing to dispose of or

acquire such an interest, whether or not the agreement is

in writing or evidenced by writing.

(2) For the purposes of this Act (other than Part 3 and the

Australian Consumer Law (WA)) —

(a) the obtaining of credit by a person in connection with

the acquisition of goods or services by the person is an

acquisition by the person of services; and

(b) any amount by which the price of the goods or services

is increased because credit was obtained is the price of

the services represented by the obtaining of credit.

(3) In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

(a) a reference to engaging in conduct is to be read as a

reference to doing or refusing to do any act, including —

(i) the making of, or the giving effect to a provision

of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision

of, an understanding;

and

Fair Trading Act 2010

Part 2 Interpretation and application

Division 2 Application

s. 10

page 8 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a reference to conduct, when that expression is used as a

noun otherwise than as mentioned in paragraph (a), is to

be read as a reference to the doing of or the refusing to

do any act, including —

(i) the making of, or the giving effect to a provision

of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision

of, an understanding;

and

(i) a reference to refraining (otherwise than

inadvertently) from doing the act; and

(ii) a reference to making it known that the act will

not be done;

and

(d) a reference to a person offering to do an act, or to do an

act on a particular condition, includes a reference to the

person making known a willingness to accept

applications, offers or proposals for the person to do the

act or to do that act on the condition.

(4) In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

(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.

(5) In this Act (other than Part 3 and the Australian Consumer

Law (WA)), a reference to the making of a representation

includes a reference to the publishing of a statement.

Division 2 — Application

10. Act binds Crown

(1) This Act binds the Crown not only in right of Western Australia

but also, so far as the legislative power of Parliament permits,

the Crown in all its other capacities.

(2) This Act applies to and in respect of the Crown in any of its

capacities to the same extent as if the Crown were, in that

capacity, a body corporate.

Fair Trading Act 2010

Interpretation and application Part 2

Application Division 2

s. 11

page 9 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) Nothing in this Act makes the Crown in any capacity liable to

be prosecuted for an offence.

(4) The protection in subsection (3) does not apply to an authority

of the Crown.

(5) This section is subject to Part 3 Division 4.

11. Territorial application of Act

(1) This Act applies to and in respect of an acquisition or supply or

the proposed acquisition or supply of goods or services, or the

disposal or proposed disposal of an interest in land —

(a) if the person by or to whom the goods or services are or

are proposed to be acquired or supplied signs in Western

Australia a document relating to the acquisition or

supply or the proposed acquisition or supply; or

(b) if the person by or to whom the interest in land is or is

proposed to be disposed of signs in Western Australia a

document relating to the disposal or the proposed

disposal of that interest; or

goods or services are or are proposed to be delivered or

supplied, or that land is situated, in Western Australia.

(2) Subsection (1) applies —

(a) despite anything to the contrary in any other Act or law;

but

(b) except as otherwise expressly provided in or under this

Act.

(3) This Act 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

(d) persons otherwise connected with this jurisdiction.

(4) Subject to subsection (3), this Act extends to conduct, and other

acts, matters and things, occurring or existing outside or partly

outside this jurisdiction (whether within or outside Australia).

Fair Trading Act 2010

Part 2 Interpretation and application

Division 2 Application

s. 12

page 10 [This compilation shows amendments proposed by Bill No. 19-2.]

(5) This Act applies to a contract in the following circumstances,

despite the terms of the contract —

(a) if the proper law of a contract for the supply of goods or

services to a consumer would, but for a term that it

should be the law of some other place or a term to the

like effect, be the law of Western Australia;

(b) if a contract for the supply of goods or services to a

consumer contains a term that purports to substitute, or

has the effect of substituting, provisions of the law of

some other country or of another State or of a Territory

for all or any of the provisions of this Act.

(6) This section is subject to section 24.

12. Concurrent operation of laws of other jurisdictions not

limited

This Act is not intended to exclude or limit the concurrent

operation of any law of the Commonwealth or of another State

or a Territory.

13. No contracting out

(1) This Act has effect despite any stipulation in any contract or

agreement to the contrary.

(2) If the making of a contract contravenes this Act because the

contract includes a particular provision, nothing in this Act

affects the validity or enforceability of the contract otherwise

than in relation to that provision, so far as that provision is

severable.

(3) Subsection (2) is subject to subsection (1) and to any order

made under section 105 or 106.

14. Relationship with other Acts and rules of law

(1) This Act is to be read and construed as being in addition to, and

not in derogation of or in substitution for, any other Act or rule

of law for the time being in force in this State that relates to the

duty or liability of persons with respect to goods or services

supplied to a consumer.

(2) Except as expressly provided by this Act, nothing in this Act is

to be taken to limit, restrict or otherwise affect any right or

remedy a person would have had if this Act had not been

enacted.

Fair Trading Act 2010

Interpretation and application Part 2

Application Division 2

s. 15

page 11 [This compilation shows amendments proposed by Bill No. 19-2.]

15. Inconsistencies with other enactments

(1) This section applies if a provision of the Australian Consumer

Law (WA) Part 3-3 or an applied regulation is inconsistent

with —

(a) a provision of an Act specified in Schedule 1; or

(b) a provision of an instrument made under an Act so

specified.

(2A) In subsection (1) —

applied regulation means a regulation that —

(a) is referred to in section 19(1)(b); and

(b) is applied by section 19(2)(a); and

Law (WA) Part 3-3.

(2) If this section applies, the provision of the Act so specified, or

of the instrument, prevails.

[Section 15 amended: No. 11 of 2013 s. 4; No. 19 of 2016

s. 136.]

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 1 Object and interpretation

s. 16

page 12 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 3 — The Australian Consumer Law

Division 1 — Object and interpretation

16. Object of this Part

The object of this Part is to apply (with modifications) the

Australian Consumer Law set out in Schedule 2 to the

Competition and Consumer Act 2010 (Commonwealth) as a law

of Western Australia.

17. Terms used

(1) In this Part, unless the contrary intention appears —

amend includes replace;

amending law means a Commonwealth Act that amends either

or both of the following —

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth);

(b) the regulations made under section 139G of that Act;

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;

(b) any regulations or other legislative instrument made

under a law described in paragraph (a); or

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 18;

Australian Consumer Law (WA) means the provisions applying

in this jurisdiction because of section 19;

instrument means any document whatever, including the

following —

(a) an Act or an instrument made under an Act;

Fair Trading Act 2010

The Australian Consumer Law Part 3

Object and interpretation Division 1

s. 17

page 13 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a law of this jurisdiction or an instrument made under

such a law;

industrial agreement;

(d) any other order (whether executive, judicial or

otherwise);

(e) a notice, certificate or licence;

(f) an agreement;

(g) an application made, prosecution notice lodged,

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;

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 Western Australia.

(2) Terms used in this Part and also in the Australian Consumer

Law (WA) 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

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 18

page 14 [This compilation shows amendments proposed by Bill No. 19-2.]

jurisdiction substantially corresponds to the provisions

of the Australian Consumer Law text, as in force from

time to time; and

(b) the corresponding law is taken to be the Australian

Consumer Law, or the Australian Consumer Law text,

applying as a law of that jurisdiction.

[Section 17 amended: Fair Trading Amendment Bill 2021 cl. 4.]

Division 2 — Application of Australian Consumer Law

18. Australian Consumer Law text

The Australian Consumer Law text consists of —

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth); and

(b) the regulations made under section 139G of that Act.

19. Application of Australian Consumer Law textAustralian

Consumer Law text, application of

(1) For the purposes of this section, the Australian Consumer Law

text consists of —

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth) as in force on 1 June 2021 and as

amended by each provision that —

(i) is in an amending law that has effect for the

purposes of this section under section 19B; and

(ii) has come into operation for the purposes of this

section under section 19C;

and

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth), as in force on 26 October 2018 (but

as modified by section 36); and

(b) the regulations made under section 139G of that Act, as

those regulations are in force from time to time.time,

subject to subsection (1A).

(1A) For the purposes of subsection (1)(b), a provision of an

amending law does not amend regulations made under the

Competition and Consumer Act 2010 (Commonwealth)

section 139G unless —

(a) the amending law has effect for the purposes of this

section under section 19B; and

Fair Trading Act 2010

The Australian Consumer Law Part 3

Application of Australian Consumer Law Division 2

s. 19A

page 15 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the provision has come into operation for the purposes

of this section under section 19C.

(2) The Australian Consumer Law text —

(a) applies as a law of this jurisdiction; and

(b) as so applying, may be referred to as the Australian

Consumer Law (WA); and

and Consumer Act 2010 (Commonwealth), is part of this

Act; and

(d) in so far as it constitutes regulations made under

section 139G of the Competition and Consumer

Act 2010 (Commonwealth), is subsidiary legislation for

the purposes of this Act.

(3) This section has effect subject to sections 21, 22, 23 and 116(3).

[Section 19 amended: No. 11 of 2013 s. 5; No. 26 of 2019 s. 4;

Fair Trading Amendment Bill 2021 cl. 5.]

19A. Tabling amending laws

An amending law must be laid before each House of Parliament

within 18 sitting days of the House after the day on which the

law receives the Royal Assent.

[Section 19A inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19B. Disallowance of amending laws

(1) In this section —

disallowance period, in relation to a disallowance resolution

notice of which is given in a House of Parliament, means the

period of 30 sitting days of the House after the day on which the

notice is given;

disallowance resolution means a resolution that an amending

law be disallowed;

notice period, in relation to an amending law laid before a

House of Parliament under section 19A, means the period of

14 sitting days of the House after the day on which the

amending law is laid before it.

(2) An amending law has effect for the purposes of section 19 if the

amending law is laid before each House of Parliament under

section 19A and either —

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 19C

page 16 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) no notice of a disallowance resolution is given in either

House within the notice period; or

(b) at least 1 notice of a disallowance resolution is given in

a House within the notice period and, for each such

notice, 1 of the following applies —

(i) the notice is withdrawn or discharged within the

disallowance period;

(ii) the disallowance resolution is lost in the House

or not agreed to within the disallowance period.

(3) For the purposes of this section and section 19A —

(a) the period specified in section 19A, a notice period or a

disallowance period continues to run even though a

House of Parliament is prorogued or dissolved or

expires; and

(b) notice of a disallowance resolution given in a House of

Parliament, or a motion that an amending law be

disallowed in the House, does not lapse even though the

House is prorogued or dissolved or expires.

[Section 19B inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19C. Commencement of amending laws

(1) In this section —

amending provision means a provision of an amending law that

amends either or both of the following —

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth);

(b) the regulations made under section 139G of that Act.

(2) If, under section 19B(2), an amending law has effect for the

purposes of section 19, the Governor must declare that fact by

proclamation as soon as practicable.

(3) If an amending provision has come into operation in the

Commonwealth before the proclamation is published in the

Gazette, the amending provision comes into operation for the

purposes of section 19 on a day fixed by the proclamation.

(4) If an amending provision has not come into operation in the

Commonwealth before the proclamation is published in the

Gazette, the amending provision comes into operation for the

purposes of section 19 when the amending provision comes into

Fair Trading Act 2010

The Australian Consumer Law Part 3

Application of Australian Consumer Law Division 2

s. 19D

page 17 [This compilation shows amendments proposed by Bill No. 19-2.]

operation in the Commonwealth in accordance with the

amending law.

[Section 19C inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19D. Amending laws enacted after 1 June 2021 but before

commencement day

If an amending law receives the Royal Assent after 1 June 2021

but before the day (commencement day) on which the Fair

Trading Amendment Act 2021 section 6 comes into operation,

sections 19A to 19C apply to the amending law as if the

amending law received the Royal Assent on commencement

day.

[Section 19D inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19E. Tabling of amending law taken to be publication for

Standing Orders

(1) In this section —

parliamentary committee means a committee established by

either or both of the Houses of Parliament.

(2) If a Standing Order of a House of Parliament provides that on

the publication of an instrument under a written law the

instrument is referred to a parliamentary committee for

consideration, the laying of an amending law before the House

under section 19A is taken to be publication of the amending

law for the purposes of the Standing Order.

(3) This section does not apply if the Standing Orders of the House

provide specifically for an amending law to be considered by a

parliamentary committee.

[Section 19E inserted: Fair Trading Amendment Bill 2021

cl. 6.]

[20. Deleted: No. 11 of 2013 s. 6.]

21. Certain instruments to be published, and may be disallowed

by Parliament

(1) This section applies to the following instruments —

(a) regulations made under the Competition and Consumer

Act 2010 (Commonwealth) section 139G;

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 22

page 18 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a determination under the Australian Consumer Law

(WA) section 66(1) (display notices);

section 104(1) or 105(1) (safety standards);

(d) a notice under the Australian Consumer Law (WA)

section 114(1) or (2) (permanent bans);

(e) a notice under the Australian Consumer Law (WA)

section 117 (revocation of permanent bans);

(f) a notice under the Australian Consumer Law (WA)

section 122(1) (recall notices) by a responsible Minister

of this jurisdiction;

(g) a notice under the Australian Consumer Law (WA)

section 134(1) or 135(1) (information standards).

(2) Where an instrument to which this section applies is made, a

copy of the instrument must be published in the Gazette not

later than 28 days after the instrument is made.

(3) If a copy of an instrument is not published in the Gazette in

accordance with subsection (2) —

(a) the instrument ceases to have effect in this jurisdiction

on the expiry of the 28th day after the instrument is

made, but without affecting the validity or curing the

invalidity of anything done or of the omission of

anything in the meantime; but

(b) if a copy of the instrument is subsequently published in

the Gazette, the instrument again has effect on and from

the day after the day of publication of a copy of the

instrument.

(4) Where a copy of an instrument to which this section applies is

published in the Gazette, the Interpretation Act 1984 section 42

applies to that instrument as if it were a regulation published in

the Gazette.

22. Term used in ACL (WA): regulator

In the Australian Consumer Law (WA) —

regulator means the Commissioner (as defined in section 6).

23. ACL (WA), interpretation of

(1) The Acts Interpretation Act 1901 (Commonwealth) applies as a

law of this jurisdiction to the Australian Consumer Law (WA).

Fair Trading Act 2010

The Australian Consumer Law Part 3

References to Australian Consumer Law Division 3

s. 24

page 19 [This compilation shows amendments proposed by Bill No. 19-2.]

(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

(WA) were a Commonwealth Act; and

(b) the regulations in the Australian Consumer Law (WA) or

instruments under that Law were regulations or

instruments under a Commonwealth Act.

(3) The Interpretation Act 1984 of Western Australia does not

apply to —

(a) the Australian Consumer Law (WA); or

(b) any instrument under that Law.

(4) Subsection (3) is subject to section 21.

24. ACL (WA), application of

(1) The Australian Consumer Law (WA) 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

(d) persons otherwise connected with this jurisdiction.

(2) Subject to subsection (1), the Australian Consumer Law (WA)

extends to conduct, and other acts, matters and things, occurring

or existing outside or partly outside this jurisdiction (whether

within or outside Australia).

Division 3 — References to Australian Consumer Law

25. 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.

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 4 Application of Australian Consumer Law to Crown

s. 26

page 20 [This compilation shows amendments proposed by Bill No. 19-2.]

26. References to Australian Consumer Law of other

jurisdictions

(1) This section has effect for the purposes of an Act, a law of this

jurisdiction or an instrument under an Act or such a law.

(2) If a law of a participating jurisdiction other than this jurisdiction

provides that the Australian Consumer Law text as in force for

the time being applies as a law of that jurisdiction, the

Australian Consumer Law of that jurisdiction is the Australian

Consumer Law text, applying as a law of that jurisdiction.

Division 4 — Application of Australian Consumer Law

to Crown

27. Division does not apply to Commonwealth

In this Division —

participating jurisdiction or other jurisdiction does not include

the Commonwealth.

28. Application law of this jurisdiction binds Crown

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.

29. Application law of other jurisdictions binds Crown

(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.

30. 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

Fair Trading Act 2010

The Australian Consumer Law Part 3

Miscellaneous Division 5

s. 31

page 21 [This compilation shows amendments proposed by Bill No. 19-2.]

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

31. No doubling-up of criminal liabilities

(1) For the purposes of this section, a person is convicted of an

offence if a court finds the person guilty of the offence, or

accepts a plea of guilty of the offence, whether or not a

conviction is recorded.

(2) If —

(a) an act or omission is an offence against the Australian

Consumer Law (WA) and is also an offence against the

application law of another participating jurisdiction; and

(b) the offender has been acquitted or convicted of the

offence with which the offender is charged, or has

already been convicted or acquitted of an offence of

which the offender might be convicted upon the

indictment or prosecution notice on which the offender

has been charged, under the application law of the other

participating jurisdiction,

the offender is not liable to be prosecuted or punished for the

offence against the Australian Consumer Law (WA).

(3) Nothing in subsection (2) prevents the Commissioner from

making or issuing a statement under section 57.

(4) 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 (WA) in respect of the same conduct.

32. Offences against ACL (WA) are crimes

(1) A reference in this section to a person involved in the

commission of an offence against the Australian Consumer Law

(WA) is to be read as a reference to a person who —

(a) has aided, abetted, counselled or procured the

commission of the offence; or

(b) has induced, whether by threats or promises or

otherwise, the commission of the offence; or

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 5 Miscellaneous

s. 33

page 22 [This compilation shows amendments proposed by Bill No. 19-2.]

concerned in, or party to, the commission of the offence;

(d) has conspired with others to effect the commission of

the offence; or

(e) has attempted to commit the offence, or to do any act of

a kind referred to in paragraph (a), (b), (c) or (d).

(2) A person who —

(a) commits an offence against the Australian Consumer

Law (WA); or

(b) is involved in the commission of an offence against the

Australian Consumer Law (WA),

is guilty of a crime.

Penalty: the penalty set out in the Australian Consumer

Law (WA).

Summary conviction penalty: the lesser of a fine of $36 000 or

the maximum penalty provided by the Australian

Consumer Law (WA) for the offence.

[Section 32 inserted: No. 11 of 2013 s. 7.]

33. Pecuniary penalty proceedings under ACL (WA) s. 224, civil

rules of evidence etc. apply

The Court must apply the rules of evidence and procedure for

civil matters when hearing proceedings for a pecuniary penalty

under the Australian Consumer Law (WA) section 224.

[34. Deleted: No. 19 of 2016 s. 137.]

35. Sale of Goods Act 1895, inconsistency with certain provisions

of ACL (WA)

(1) Where a provision of the Australian Consumer Law (WA)

Part 3-2 Division 1 is, in its application to any circumstance,

matter or thing, inconsistent with a provision of the Sale of

Goods Act 1895 in its application to the same circumstance,

matter or thing —

(a) the provision of the Australian Consumer Law (WA)

Part 3-2 Division 1 prevails; and

(b) the provision of the Sale of Goods Act 1895 is

inoperative to the extent of the inconsistency.

(2) This section applies despite —

Fair Trading Act 2010

The Australian Consumer Law Part 3

Transitional Division 6

s. 36

page 23 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) any rule of law or construction to the contrary; and

(b) an agreement that provides otherwise.

36. Competition and Consumer Act 2010 (Cwlth) Sch. 2 modified

(1) This section makes the modifications to the text of Schedule 2

to the Competition and Consumer Act 2010 (Commonwealth),

as in force on 1 January 2013, that, together with the regulations

referred to in section 19(1)(b), result in the text that

section 19(2) applies as the Australian Consumer Law (WA).

(2) In section 73(1) delete paragraphs (b) and (c) and insert:

(b) on a Saturday:

(i) between midnight and 9 am; or

(ii) between 5 pm and midnight; or

(i) between midnight and 9 am; or

(ii) between 8 pm and midnight.

(3) In section 170(1) delete paragraphs (b) and (c) and insert:

(b) on a Saturday:

(i) between midnight and 9 am; or

(ii) between 5 pm and midnight; or

(i) between midnight and 9 am; or

(ii) between 8 pm and midnight.

[Section 36 amended: No. 11 of 2013 s. 8.]

[The effect of section 36(2) and (3) is altered by the Fair

Trading (Permitted Calling Hours) Regulations 2014 2.]

[36. Deleted: Fair Trading Amendment Bill 2021 cl. 7(1).]

Division 6 — Transitional

37. Certain injunction proceedings pending at 1 Jan 2011

(1) To the extent that any proceedings to which the Fair Trading

Act 1987 section 3C(2)(c) applies are proceedings for an

injunction under section 74 or 75 of that Act, the proceedings

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 6 Transitional

s. 38

page 24 [This compilation shows amendments proposed by Bill No. 19-2.]

are taken, after the commencement of this section, to be

proceedings for an injunction under the Australian Consumer

Law (WA) section 232.

(2) This section overrides the Fair Trading Act 1987

section 3C(2)(c).

38. ACL (WA) Part 2-3 (unfair contract terms), application of

to contracts made on or after 1 Jan 2011

(1) The Australian Consumer Law (WA) Part 2-3 applies to a

contract entered into on or after the commencement of this

section.

(2) That Part does not apply to a contract entered into before that

commencement. However —

(a) if the contract is renewed on or after that

commencement — that Part applies to the contract as

renewed, on and from the day (the renewal day) on

which the renewal takes effect, in relation to conduct

that occurs on or after the renewal day; or

(b) if a term of the contract is varied on or after that

commencement, and paragraph (a) has not already

applied in relation to the contract — that Part applies to

the term as varied, on and from the day (the variation

day) on which the variation takes effect, in relation to

conduct that occurs on or after the variation day.

(3) If subsection (2)(b) applies to a term of a contract,

sections 23(2) and 27 of the Australian Consumer Law (WA)

apply to the contract.

39. ACL (WA) Part 3-2 Div. 2 (unsolicited consumer

agreements), application of to contracts made before

1 Jan 2011 etc.

(1) The Australian Consumer Law (WA) Part 3-2 Division 2 does

not apply to any contract made before the commencement of

this section.

(2) The Australian Consumer Law (WA) Part 3-2 Division 2

applies to a contract made on or after the commencement of this

section even though negotiations leading to the formation of the

contract may have taken place before the commencement of this

section.

Fair Trading Act 2010

The Australian Consumer Law Part 3

Transitional Division 6

s. 40

page 25 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) The Door to Door Trading Act 1987 section 3C relates to the

application of that Act to contracts made before the

commencement of this section.

40. ACL (WA) s. 101 (requests for itemised bills), application of

for services supplied before 1 Jan 2011

The Australian Consumer Law (WA) section 101 does not apply

in relation to a supply of services to the extent that the services

were supplied before the commencement of this section.

41. ACL (WA) s. 224(4)(c), interpretation of

The reference in the Australian Consumer Law (WA)

section 224(2)(c) to proceedings under Chapter 4 or Part 5-2 of

that Law includes a reference to proceedings, commenced

before the commencement of this section, under or in relation

to —

(a) Part VC or VI of the Trade Practices Act 1974

(Commonwealth); or

(b) Part II, V, VI or VII of the Fair Trading Act 1987.

Fair Trading Act 2010

Part 4 Codes of practice

Division 1 Preliminary

s. 42

page 26 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 4 — Codes of practice

Division 1 — Preliminary

42. Outline of this Part

(1) This Part provides for the making of regulations prescribing a

code of practice for fair dealing between a particular class of

suppliers and consumers, or by a particular class of persons in

relation to consumers.

(2) If a person carries on business in contravention of a prescribed

code of practice applying to them, the Commissioner can apply

to the State Administrative Tribunal for an order requiring the

person to comply with the code and rectify the consequence of

the contravention of the code.

(3) This section is intended only as a guide to the general scheme

and effect of this Part, and does not limit the other provisions of

this Part.

43. Term used: code of practice

In this Part —

code of practice means a code of practice for fair dealing —

(a) between a particular class of suppliers and consumers; or

(b) by a particular class of persons in relation to consumers;

services.

Division 2 — Development and implementation of codes

of practice

44. Draft codes of practice, preparation of

(1) The Commissioner may, with the approval of the Minister,

prepare a draft code of practice for submission to the Minister

for consideration.

(2) The Commissioner must, if the Minister directs, prepare a draft

code of practice for submission to the Minister for

consideration.

(3) For the purpose of preparing a draft code of practice, the

Commissioner must arrange for consultation with, and invite

submissions from, persons and organisations that the

Fair Trading Act 2010

Codes of practice Part 4

Development and implementation of codes of practice Division 2

s. 45

page 27 [This compilation shows amendments proposed by Bill No. 19-2.]

Commissioner considers would have an interest in the terms of

the proposed draft code.

(4) Without limiting subsection (3), the Commissioner must consult

with, and invite submissions from, the following —

(a) principal organisations that represent those suppliers that

are likely to be affected by the terms of the draft code of

practice;

(b) principal organisations representing consumers.

45. Regulations prescribing code of practice

(1) The regulations may prescribe a code of practice that —

(a) has been submitted to the Minister in accordance with

section 44; and

(b) has been approved by the Minister with or without

amendments.

(2) Regulations prescribing a code of practice must provide that the

regulations expire on a date specified in the regulations, which

must be a date that is not later than the last day of the period of

3 years after the date on which the code of practice first takes

effect.

(3) Regulations prescribing a code of practice may be amended to

remove the expiry date of the regulations if —

(a) the Commissioner undertakes a review of the code of

practice before the regulations expire; and

(b) in undertaking the review, the Commissioner follows the

consultation procedures set out in section 44.

46. Interim code of practice, regulations may prescribe

(1) The regulations may prescribe a code of practice even though

the procedures set out in section 44 have not been followed or

completed.

(2) A code of practice prescribed under this section is an interim

code of practice, and may have effect for a period (not

exceeding 6 months) specified in the regulations.

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 47

page 28 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — Enforcement of codes of practice

47. SAT’s powers to deal with contraventions of prescribed code

of practice

(1) Where it appears to the Commissioner that a person has carried

on business in contravention of a prescribed code of practice

applicable to that person, the Commissioner may apply to the

State Administrative Tribunal for an order under this section.

(2) Where, on the application of the Commissioner, the State

Administrative Tribunal is satisfied that a person has carried on

business in contravention of a prescribed code of practice

applicable to that person, the Tribunal may make either or both

of the following orders —

(a) an order that the person cease contravening the code;

(b) an order that the person rectify any consequence of that

contravention.

(3) The State Administrative Tribunal may make an order under

subsection (2) in relation to a person with that person’s consent,

without being satisfied that there are grounds for making the

order.

(4) Where the contravention is by a body corporate, and the

Tribunal is satisfied that it occurred with the consent or

connivance of a person who, at the time of the contravention,

was a director of the body corporate or a person concerned in its

management, the Tribunal may make the following additional

orders —

(a) an order prohibiting the person from continuing to

consent to, or connive at, the contravention;

(b) an order prohibiting the person from consenting to, or

conniving at, a similar contravention by any other body

corporate of which the person is a director or in whose

management the person is concerned.

(5) An order under this section may be made subject to any

conditions (whether as to the duration of the order or otherwise)

the State Administrative Tribunal thinks fit, including —

(a) conditions relating to the future conduct of the person

affected; and

(b) conditions specifying the action to be taken by the

person to rectify the consequences of the contravention

that is the subject of the order.

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 48

page 29 [This compilation shows amendments proposed by Bill No. 19-2.]

(6) A person who fails to comply with an order of the State

Administrative Tribunal under this section commits an offence.

Penalty: a fine of $50 000.

48. Commissioner may take or defend, or assume the conduct or

defence of, proceedings relating to contravention of code of

practice

(1) This section applies where —

(a) a person (other than a body corporate) has made a

complaint to the Commissioner in respect of a matter

arising under a code of practice or in relation to a

contravention or suspected contravention of a code of

practice; and

(b) the Commissioner, after investigating the complaint, is

satisfied —

(i) that the complainant may, with respect to the

matter, have a right to take proceedings before a

court or the State Administrative Tribunal, or a

defence to proceedings taken before a court or

the State Administrative Tribunal by another

person against the complainant in respect of the

matter; and

(ii) that it is in the public interest that —

(I) the Commissioner take or, as the case

requires, defend those proceedings on

behalf of the complainant; or

(II) if proceedings are already being taken

or defended by the complainant with

respect to the matter — the

Commissioner assume the conduct or

defence of those proceedings on behalf

of the complainant.

(2) If this section applies, the Commissioner may take, defend or

assume the conduct or defence of those proceedings on behalf

of, and in the name of, the complainant.

(3) The Commissioner must not take, defend or assume the conduct

or defence of any proceedings under this section without first

obtaining —

(a) the written consent of the complainant, which once

given cannot be revoked unless the Commissioner

consents to the revocation; and

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 49

page 30 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the written consent of the Minister, which may be given

subject to any conditions the Minister thinks fit.

[Section 48 amended: No. 11 of 2013 s. 9.]

49. Provisions for proceedings Commissioner institutes, defends

or assumes conduct or defence of

(1) The following provisions apply in relation to any proceedings

the Commissioner institutes, defends or assumes the conduct or

defence of under section 48 on behalf of a complainant —

(a) the Commissioner has, on behalf of the complainant, in

all respects the same rights in and control over the

proceedings, including the right to settle any action or

part of any action, as the complainant would have had in

the conduct of those proceedings;

(b) the Commissioner may, without consulting or seeking

the consent of the complainant, conduct the proceedings

in whatever manner the Commissioner thinks

appropriate and proper;

Commissioner belong and must be paid to the

complainant without deduction, and any amount

awarded against the complainant must be paid by and is

recoverable from the complainant;

(d) in all cases the costs of the proceedings must be borne

by or paid to and retained by the Commissioner as the

case may require;

(e) if any party to the proceedings files a counterclaim, or if

the complainant on whose behalf the proceedings are

being defended is entitled to file a counterclaim, and that

counterclaim is not related to the cause of action, the

court or, as the case requires, the State Administrative

Tribunal hearing the proceedings —

(i) must, on the application of the Commissioner,

order that the counterclaim be heard separately

and that the consumer be a party to the

counterclaim in the complainant’s own right; and

(ii) may make any other orders or give any directions

in that behalf the court or Tribunal thinks fit.

(2) Any money that the Commissioner becomes liable to pay by

virtue of this section is to be charged to the Consolidated

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 50

page 31 [This compilation shows amendments proposed by Bill No. 19-2.]

Account, and this Act, without any further appropriation, is

sufficient authority for the payment of the money.

[Section 49 amended: No. 11 of 2013 s. 10.]

50. No doubling-up of liabilities

(1) For the purposes of this section, a person is convicted of an

offence if a court finds the person guilty of the offence, or

accepts a plea of guilty of the offence, whether or not a

conviction is recorded.

(2) If an act or omission is a contravention of a prescribed code of

practice and is also an offence against the Australian Consumer

Law (WA), and an order is made under section 47 in respect of

that contravention, the offender is not liable to be punished for

the offence against the Australian Consumer Law (WA).

(3) If an act or omission is a contravention of a prescribed code of

practice and is also an offence against the Australian Consumer

Law (WA), and the offender has been convicted of the offence

under the Australian Consumer Law (WA), the offender is not

liable to have an order made against them under section 47.

51. Action taken for breach of code of practice doesn’t preclude

other civil action

(1) The fact that the Commissioner has made an application under

section 47 in respect of a matter that is alleged to be a

contravention of a prescribed code of practice, or that the State

Administrative Tribunal has made an order under that section in

respect of that matter, does not prevent any other person from

taking proceedings before a court or the State Administrative

Tribunal in respect of the matter.

(2) Nothing in this section permits a person other than the

Commissioner to make an application under section 47.

52. Transitional provisions for codes of practice prescribed

before 1 Jan 2011

(1) Regulations made under the Fair Trading Act 1987 section 84

prescribing a code of practice in accordance with section 43(1)

of that Act and that were in force immediately before the

commencement of this section continue in force after that

commencement as if they were made under section 45, but

nothing in section 45(2) and (3) applies in relation to those

regulations.

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 53

page 32 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) However, in the case of regulations prescribing a code of

practice that first took effect at least 3 years before the

commencement of this section, those regulations do not

continue in force under subsection (1) unless, within the period

of 3 years beginning on the date on which that code of practice

first took effect, a review, in accordance with the Fair Trading

Act 1987 section 42, has been undertaken.

(3) Where regulations (other than regulations to which

subsection (2) applies) continue in force under subsection (1),

the regulations expire at the close of the last day of the period of

3 years beginning on the date on which the code of practice

prescribed by the regulations first took effect unless, within that

period —

(a) the Commissioner undertakes a review of the code of

practice; and

(b) in undertaking the review, the Commissioner follows the

consultation procedures set out in section 44.

(4) Regulations made under the Fair Trading Act 1987 section 84

prescribing an interim code of practice in accordance with

section 43(2) of that Act and that were in force immediately

before the commencement of this section continue in force after

that commencement as if they were made under section 46.

53. Transitional provisions for undertakings under Fair Trading

Act 1987 s. 44

(1) The following provisions apply to a deed executed under the

Fair Trading Act 1987 section 44 and that was in force

immediately before the commencement of this section —

(a) the deed continues in force after that commencement;

(b) a person must observe undertakings given by the person

in the deed;

Administrative Tribunal is satisfied that a person has

failed to observe an undertaking given by the person in

the deed, the State Administrative Tribunal may order

the person —

(i) to observe the undertaking; and

(ii) in the case of an undertaking to rectify the

consequence of a contravention of a code of

practice — to observe the undertaking within a

time specified by the State Administrative

Tribunal in the order.

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 54

page 33 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) A person who contravenes subsection (1)(b) commits an

offence.

Penalty: a fine of $10 000.

(3) A prosecution for an offence under subsection (2) can be

instituted only by the Commissioner, and only with leave of the

State Administrative Tribunal given when making an order

under subsection (1)(c).

(4) Section 47(3) to (6) apply in relation to proceedings under

subsection (1)(c) as if they were proceedings for an order under

that section.

54. Transitional provisions for contraventions of code of

practice before 1 Jan 2011

(1) This section applies if —

(a) before the commencement of section 52, a person has

carried on business in contravention of a prescribed code

of practice applicable to the person; and

(b) the code of practice continues in force under section 52;

and

Act 1987 section 44 in relation to the contravention of

the code of practice before the commencement of this

section.

(2) If this section applies —

(a) the Commissioner can make an application under

section 47 in respect of the contravention of the code of

practice, as long as the application is made not later than

6 months after the commencement of this section; and

(b) the State Administrative Tribunal can deal with the

application under that section accordingly.

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 55

page 34 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 5 — Administrative provisions

Division 1 — Commissioner

55. Commissioner, designation and title of

(1) In this section —

executive officer has the meaning given by the Public Sector

Management Act 1994 section 3(1).

(2) The Minister must, by notice published in the Gazette, designate

an executive officer of the Department as the Commissioner for

the purposes of this Act.

(3) The Commissioner may be referred to by a title specified by the

Minister by notice published in the Gazette.

56. General functions of Commissioner

(1) The functions of the Commissioner include the following —

(a) to promote the interests of consumers and assist them to

a greater awareness in relation to their assessment and

use of goods and services;

(b) to collect, collate and disseminate information in respect

of matters affecting the interests of consumers;

matters affecting their interests as consumers, to

consider and, if the Commissioner considers it

warranted, to investigate those complaints and to take

whatever action in respect of those complaints as seems

proper to the Commissioner;

(d) to receive complaints of fraudulent or deceptive

practices in relation to matters that affect or are likely to

affect the interests of consumers, and to make whatever

investigations and inquiries and to take whatever other

action in respect of those complaints as seems proper to

the Commissioner;

(e) to advise and assist consumers who seek from the

Commissioner information or guidance on matters

affecting their interests as consumers;

(f) to encourage and undertake the dissemination of

information concerning consumer affairs to producers,

manufacturers and suppliers of goods or services;

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 57A

page 35 [This compilation shows amendments proposed by Bill No. 19-2.]

(g) to perform any other functions that are conferred or

imposed on the Commissioner by this Act or any

other Act.

(2) Without limiting the generality of subsection (1), the

Commissioner is to —

(a) make whatever recommendations to the Minister the

Commissioner considers necessary or desirable in the

interests of consumers and, in particular, investigate and

make recommendations to the Minister in relation to any

matters that concern the need for, or desirability of,

legislative or administrative action in the interests of

consumers;

(b) advise the Minister on any matters affecting the interests

of consumers that the Minister may refer to the

Commissioner;

establishment and maintenance of means by which —

(i) matters that affect the interests of consumers and

of persons engaged in the production,

manufacture, preparation or supply of goods or in

commerce or in the provision of services may

receive adequate consideration; and

(ii) information concerning those matters and

considerations may be widely disseminated.

(3) The Commissioner may cooperate, associate or consult with

organisations that have the power to make investigations of the

nature referred to in subsection (2)(a).

57A. Licensing and regulatory functions of Commissioner

The Commissioner has the following functions with respect to

the licensing, registration and certification schemes provided for

in the Acts specified in Schedule 2 —

(a) to administer the scheme of licensing, registration and

certification established under those Acts;

(b) to conduct and promote education and provide advisory

services for persons who are licensed, registered or

certificated under those Acts, or involved in the

administration of those Acts, and for members of the

public on —

(i) matters relating to the operation of those Acts;

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 57

page 36 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) matters relating to the operations of persons who

are licensed, registered or certificated under

those Acts;

(d) to make recommendations and submit proposals to the

Minister from time to time with respect to regulations to

be made under those Acts;

(e) to carry out any other functions conferred on the

Commissioner under those Acts.

[Section 57A inserted: No. 58 of 2010 s. 4.]

57. Warnings and information, Commissioner may issue

(1) The Commissioner may publish (in any form) a statement

identifying and giving warnings or information about any of the

following —

(a) goods that are unsatisfactory or dangerous and persons

who supply or are likely to supply those goods;

(b) services supplied in an unsatisfactory or dangerous

manner and persons who supply or are likely to supply

those services;

likely to engage in those practices;

(d) any other matter that adversely affects or may adversely

affect the interests of consumers in connection with the

acquisition by them of goods or services.

(2) A statement under subsection (1) may identify particular goods,

services, business practices, persons, corporate names, business

names and trading names.

(3) The Commissioner must not make or issue a statement under

this section unless satisfied that it is in the public interest to

do so.

58. Instituting, defending or assuming conduct or defence of

legal proceedings on behalf of consumers or businesses

(1) This section applies where —

(a) after a complaint or matter has been made or referred to

the Department, the Commissioner is satisfied —

(i) that a consumer has a cause of action or a good

defence to an action; and

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 58

page 37 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) that it is in the public interest or proper to

institute, defend or assume the conduct or

defence of legal proceedings on behalf of the

consumer;

(b) the Commissioner is satisfied that it is proper to

institute, defend or assume the conduct or defence of

legal proceedings on behalf of a business in relation to

the supply or possible supply of goods or services in

trade or commerce because a matter of public interest is

involved.

(2) If this section applies, the Commissioner may —

(a) where subsection (1)(a) applies, on behalf of the

consumer, institute legal proceedings against any other

person, or defend any proceedings brought against the

consumer, or assume the conduct or defence of

proceedings already commenced by or against the

consumer, with a view to enforcing or protecting the

rights of the consumer in relation to any infringement or

suspected infringement by that other person of those

rights or of any of the provisions of any Act or any other

law relating to the interests of consumers; or

(b) where subsection (1)(b) applies, on behalf of the

business, institute legal proceedings against any other

person, or defend any proceedings brought against the

business, or assume the conduct or defence of

proceedings already commenced by or against the

business.

(3) The Commissioner must not institute, defend or assume the

conduct or defence of any proceedings under this section —

(a) unless either —

(i) the amount claimed or involved in either case

does not exceed $100 000 or such greater amount

as is prescribed for the purposes of this

paragraph; or

(ii) an order for specific performance of a contract,

or an order in the nature of an order for specific

performance of a contract, is the only remedy

sought in the proceedings;

and

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 59

page 38 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) without first obtaining —

(i) the written consent of the consumer or, as the

case requires, the business, which once given

cannot be revoked unless the Commissioner

consents to the revocation; and

(ii) the written consent of the Minister, which may

be given subject to any conditions the Minister

thinks fit.

(4) The Commissioner may make any investigation or inquiry under

Part 6 that the Commissioner considers necessary or desirable

for the purposes of —

(a) satisfying himself or herself that it is proper to institute,

defend or assume the conduct or defence of legal

proceedings on behalf of a business under

subsection (1)(b); and

(b) instituting, defending or assuming the conduct or

defence of those proceedings; and

(5) Nothing in subsection (4) limits Part 6.

[Section 58 amended: No. 11 of 2013 s. 11.]

59. Provisions for proceedings Commissioner institutes, defends

or assumes conduct or defence of

(1) The following provisions apply in relation to any proceedings

the Commissioner institutes, defends or assumes the conduct or

defence of under section 58 on behalf of a consumer or

business —

(a) the Commissioner has, on behalf of the consumer or

business, in all respects the same rights in and control

over the proceedings, including the right to settle any

action or part of any action, as the consumer or business

would have had in the conduct of those proceedings;

(b) the Commissioner may, without consulting or seeking

the consent of the consumer or business, conduct the

proceedings in whatever manner the Commissioner

thinks appropriate and proper;

Commissioner belong and must be paid to the consumer

or business without deduction, and any amount awarded

against the consumer or business must be paid by and is

recoverable from the consumer or business;

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 60

page 39 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) in all cases the costs of the proceedings must be borne

by or paid to and retained by the Commissioner as the

case may require;

(e) if any party to the proceedings files a counterclaim, or if

the consumer or business on whose behalf the

proceedings are being defended is entitled to file a

counterclaim, and that counterclaim is not related to the

cause of action and in no way relates to the interests of

the consumer as a consumer or, as the case requires, the

interests of the business as a business, the court hearing

the proceedings —

(i) must, on the application of the Commissioner,

order that the counterclaim be heard separately

and that the consumer or business be a party to

the counterclaim in the consumer’s or business’s

own right; and

(ii) may make any other orders or give any directions

in that behalf the court thinks fit.

(2) Any money that the Commissioner becomes liable to pay by

virtue of this section is to be charged to the Consolidated

Account, and this Act, without any further appropriation, is

sufficient authority for the payment of the money.

[Section 59 amended: No. 11 of 2013 s. 12.]

60. Delegation by Commissioner

(1) The Commissioner may delegate to any other person employed

in the Department any power or duty of the Commissioner

under a provision of this or any other Act.

(2) The delegation must be in writing signed by the Commissioner.

(3) A person to whom a power or duty is delegated under this

section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been

delegated to the person under this section is to be taken to do so

in accordance with the terms of the delegation unless the

contrary is shown.

(5) Nothing in this section limits the ability of the Commissioner to

perform a function through an officer or agent.

Fair Trading Act 2010

Part 5 Administrative provisions

Division 2 Offence

s. 61

page 40 [This compilation shows amendments proposed by Bill No. 19-2.]

61. Judicial notice of Commissioner’s signature etc.

All courts, judges and persons acting judicially must take

judicial notice of —

(a) the official signature of every person who is for the time

being, and every person who has at any time been, the

Commissioner; and

(b) the fact that the person holds or has held that office.

Division 2 — Offence

62. Advertisements not to imply approval by consumer affairs

authority

(1) In this section —

consumer affairs authority —

(a) means —

(i) the Department or the chief executive officer or

the Commissioner; or

(iia) an advisory committee appointed under

Division 3; or

(ii) any person, or statutory body or authority,

appointed or constituted under any law of the

Commonwealth or of any State or Territory of

the Commonwealth and having powers,

functions and duties under the laws of the

Commonwealth or that State or Territory similar

to those of the Department or the chief executive

officer or the Commissioner under the laws of

this State;

and

(b) includes —

(i) any officer of the Department; and

(ii) any officer or employee of a statutory body, an

advisory committee or an authority referred to in

paragraph (a)(iia) or (a)(ii) of this definition;

publish includes —

(a) include in a newspaper or other publication published in

this State;

Fair Trading Act 2010

Administrative provisions Part 5

Offence Division 2

s. 62

page 41 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) disseminate by the exhibition or broadcast of a

photograph, slide, film, video recording, audio recording

or other recording of images or sound;

(d) include on an internet website or otherwise publicly

disseminate by means of the internet;

(e) publicly exhibit in, on, over or under any building,

vehicle or place, or in the air, in view of persons in or on

any street or public place;

(f) include in a document gratuitously sent or delivered to

any person or thrown or left on premises occupied by

any person or left on a vehicle;

(g) make verbally to any person.

(2) A person must not publish or cause to be published any

statement —

(a) that is intended or is apparently intended to promote the

sale, hiring or leasing of goods, or the sale of an estate or

interest in any land or building, or the letting or leasing

of any land or building or part of a building, or the use

of a service rendered for fee or reward; and

(b) that states, either expressly or by implication, that any

consumer affairs authority has approved, or has

refrained from disapproving, the statement or any

material particular in the statement or any claim made in

the statement or any goods or services depicted or

described, whether by a trade name or otherwise, in the

statement.

Penalty: a fine of $10 000.

(3) It is a defence in any proceedings for an offence under

subsection (2) if the accused satisfies the court that, before the

publication of the statement, the Minister consented in writing

to its publication.

[Section 62 amended: No. 58 of 2010 s. 5.]

Fair Trading Act 2010

Part 5 Administrative provisions

Division 3 Advisory committees

s. 63A

page 42 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — Advisory committees

[Heading inserted: No. 58 of 2010 s. 6.]

Subdivision 1 — Property Industry Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63A. Committee established

A committee called the Property Industry Advisory Committee

is established.

[Section 63A inserted: No. 58 of 2010 s. 6.]

63B. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

(2) The Minister must appoint a Committee member to be the

Chairperson.

[Section 63B inserted: No. 58 of 2010 s. 6; amended: No. 26

of 2019 s. 5.]

63C. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the regulation of the real estate, settlement and land

valuation industries in Western Australia, including the

licensing, regulation and training of persons or

businesses who or which undertake the functions of a

real estate agent, real estate sales representative,

business agent, business sales representative, settlement

agent or land valuer; and

(b) the provision by the Commissioner of education,

information and advice to consumers and to the real

estate, settlement and land valuation industries in

Western Australia; and

Estate and Business Agents Act 1978 section 131O; and

Fair Trading Act 2010

Administrative provisions Part 5

Advisory committees Division 3

s. 63D

page 43 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) any matter referred to the Committee by the Minister or

the Commissioner.

[Section 63C inserted: No. 58 of 2010 s. 6.]

63D. Procedure

(1) The Committee may regulate its own procedure.

(2) Subsection (1) is subject to the regulations.

[Section 63D inserted: No. 58 of 2010 s. 6.]

Subdivision 2 — Motor Vehicle Industry Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63E. Committee established

A committee called the Motor Vehicle Industry Advisory

Committee is established.

[Section 63E inserted: No. 58 of 2010 s. 6.]

63F. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

(2) The Minister must appoint a Committee member to be the

Chairperson.

[Section 63F inserted: No. 58 of 2010 s. 6; amended: No. 26

of 2019 s. 6.]

63G. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the regulation of the motor vehicle dealing and repair

industry in Western Australia, including the licensing,

certification and training of persons or businesses who

or which engage in motor vehicle dealing and repair;

and

Fair Trading Act 2010

Part 5 Administrative provisions

Division 3 Advisory committees

s. 63H

page 44 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the provision by the Commissioner of education,

information and advice to consumers and to the motor

vehicle dealing and repair industry in Western Australia;

and

the Commissioner.

[Section 63G inserted: No. 58 of 2010 s. 6.]

63H. Procedure

(1) The Committee may regulate its own procedure.

(2) Subsection (1) is subject to the regulations.

[Section 63H inserted: No. 58 of 2010 s. 6.]

Subdivision 3 — Consumer Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63I. Committee established

A committee called the Consumer Advisory Committee is

established.

[Section 63I inserted: No. 58 of 2010 s. 6.]

63J. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

(2) The Minister must appoint a Committee member to be the

Chairperson.

[Section 63J inserted: No. 58 of 2010 s. 6; amended: No. 26

of 2019 s. 7.]

63K. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the activities and policies of the Department as they

affect consumers; and

(b) current and emerging consumer issues; and

Fair Trading Act 2010

Administrative provisions Part 5

Advisory committees Division 3

s. 63L

page 45 [This compilation shows amendments proposed by Bill No. 19-2.]

and

(d) any matter referred to the Committee by the Minister or

the Commissioner.

[Section 63K inserted: No. 58 of 2010 s. 6.]

63L. Procedure

(1) The Committee may regulate its own procedure.

(2) Subsection (1) is subject to the regulations.

[Section 63L inserted: No. 58 of 2010 s. 6.]

Subdivision 4 — Regulations prescribing committee procedures, etc.

[Heading inserted: No. 58 of 2010 s. 6.]

63M. Regulations

(1) The regulations may provide for the constitution and operation

of the advisory committees established under this Division.

(2) Without limiting the generality of subsection (1), the regulations

may —

(a) require that persons appointed as members of a

committee —

(i) possess particular expertise or qualifications; or

(ii) represent particular interest groups, industries or

occupations;

(b) provide for the number of members, the manner, and

terms and conditions of appointment, and the resignation

and removal of members of the committees;

(d) provide for the manner in which members of the

committees are to disclose interests;

(e) regulate the procedure for meetings of the committees,

including the quorum for meetings;

(f) provide for the remuneration of members of the

committees (other than a member ex officio).

[Section 63M inserted: No. 58 of 2010 s. 6.]

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 1 Preliminary

s. 63

page 46 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 6 — Investigation and enforcement

Division 1 — Preliminary

[Heading inserted: No. 23 of 2014 s. 10.]

63. Terms used

In this Part —

authorised person means —

(a) the Commissioner; and

(b) in relation to a power of the Commissioner under a

provision of this Act or any other Act, a person to whom

that power is delegated under section 60; and

investigation under section 88D;

investigator means a person designated under section 64 as an

investigator;

motor vehicle has the meaning given in the Road Traffic

(Administration) Act 2008 section 4.

[Section 63 amended: No. 58 of 2010 s. 7; No. 8 of 2012

s. 102.]

64A. Authorised persons cannot be public officers under Criminal

Investigation Act 2006

The office held by an authorised person cannot be prescribed by

an Act or regulations under the Criminal Investigation Act 2006

section 9(1)(a).

[Section 64A inserted: No. 23 of 2014 s. 11.]

Division 2 — Investigators

64. Designating people as investigators

The Commissioner may designate any of the following persons

as an investigator for the purposes of this Part —

(a) any person employed in the Department;

(b) any person who —

(i) is an officer of a Public Sector agency that

provides services to the Department; and

(ii) assists in the exercise of the Commissioner’s

functions under this Act;

Fair Trading Act 2010

Investigation and enforcement Part 6

Investigators Division 2

s. 65

page 47 [This compilation shows amendments proposed by Bill No. 19-2.]

assist in the exercise of the Commissioner’s functions

under this Act.

65. Certificate of authority of investigator

(1) The Commissioner is to provide each investigator with a

document, signed by the Commissioner, certifying that the

person is entitled to exercise the powers of an investigator.

(2) A person to whom a document is provided under this section

and who ceases to be an investigator must return the document

to the Commissioner as soon as practicable.

(3) A person who contravenes subsection (2) without reasonable

excuse, the onus of proving which is on the person, commits an

offence.

Penalty: a fine of $1 000.

66. Certificate of authority to be produced on demand

An investigator must produce the document provided under

section 65 when demanded by a person in respect of whom the

investigator performs, has performed, or is proposing to perform

any function under this Act or another Act.

67. Persons assisting investigators

(1) Where an investigator is exercising any of the investigator’s

powers under this Part, a person (the assistant), including an

interpreter, may accompany the investigator to assist the

investigator if the investigator considers the assistance is

necessary.

(2) The assistant —

(a) may do such things and in such manner as the

investigator reasonably requires to assist the investigator

to exercise the investigator’s powers; but

(b) must not do anything that the investigator does not have

power to do, except as permitted under a warrant under

Division 3.

(3) Anything done lawfully by the assistant is taken for all purposes

to have been done by the investigator.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 68

page 48 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — General powers

68. Investigations and inquiries, Commissioner’s powers to

make

(1) The Commissioner may, of the Commissioner’s own motion,

make any investigation or inquiry that the Commissioner

considers necessary or expedient for the purposes of carrying

out the Commissioner’s functions under this Act or any other

Act.

(2) An authorised person may make an investigation or inquiry

under this section on behalf of the Commissioner.

69. Investigations and inquiries, powers for

(1) For the purposes of carrying out any investigation or inquiry in

the course of carrying out the Commissioner’s functions under

this Act or any other Act, an authorised person may —

(a) require any person —

(i) to give whatever information the authorised

person requires in relation to any matter the

subject of an investigation or inquiry; and

(ii) to answer any question put to the person in

relation to any matter the subject of an

investigation or inquiry;

and

(b) require any person to produce any document or thing

relating to an investigation or inquiry; and

motor vehicle named in a warrant obtained in

accordance with this Division and exercise the powers

set out in the warrant; and

(d) make a copy or abstract of any document produced or

inspected under this section, or of any entry made in the

document.

(2) A requirement made under subsection (1)(a) —

(a) may be made orally or by notice in writing served on the

person required to give information or answer a

question, as the case requires; and

(b) must specify the time at or within which the information

is to be given or the question is to be answered, as the

case requires; and

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 69

page 49 [This compilation shows amendments proposed by Bill No. 19-2.]

required —

(i) be given orally or in writing; and

(ii) be given at or sent or delivered to any place

specified in the requirement; and

(iii) in the case of written information or answers, be

sent or delivered by any means specified in the

requirement; and

(iv) be given on oath or affirmation or by statutory

declaration.

(3) An authorised person may administer an oath or affirmation or

witness a statutory declaration for the purposes of

subsection (2)(c)(iv).

(4) A requirement made under subsection (1)(b) —

(a) must be made by notice in writing served on the person

required to produce a document or thing, unless the

circumstances require the authorised person to have

immediate access to the document or thing, in which

case the requirement may be given orally; and

(b) must specify the time at or within which the document

or thing is to be produced; and

required be produced —

(i) at any place specified in the requirement; and

(ii) by any means specified in the requirement.

(5) Where, under subsection (1)(a) or (b), an authorised person

orally requires a person to give any information, answer any

question or produce any document or thing, the authorised

person must inform the other person that the other person is

required, under this Act or another Act, to give the information,

answer the question or produce the document or thing, as the

case requires.

(6) Where, under subsection (1)(a) or (b), a person is required by

notice in writing to give any information, answer any question

or produce any document or thing, the notice must state that the

person is required, under this Act or another Act, to give the

information, answer the question or produce the document or

thing, as the case requires.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 70

page 50 [This compilation shows amendments proposed by Bill No. 19-2.]

70. Interviews under s. 69(1)(a), conduct of

(1) An interview conducted by an authorised person under

section 69(1)(a) must be conducted in private if —

(a) the authorised person considers it appropriate; or

(b) the person being interviewed so requests.

(2) Subsection (1) does not limit the operation of section 67 or

prevent a representative of the person being interviewed from

being present at the interview.

(3) Subsection (1) may be invoked during an interview by —

(a) the authorised person; or

(b) the person being interviewed.

(4) If subsection (1) is invoked during an interview, the subsection

applies to the remainder of the interview.

71. Warrant to enter premises or motor vehicle

(1) If an authorised person considers in a particular case that there

are reasonable grounds for believing that entry to premises or a

motor vehicle is necessary for the purposes of carrying out any

investigation or inquiry in the course of carrying out the

Commissioner’s functions under this Act or any other Act, the

authorised person may apply to a magistrate or justice of the

peace for a warrant to be issued in respect of those premises or

that motor vehicle.

(2) An application for a warrant must —

(a) be in writing; and

(b) be accompanied by a notice in writing from the

authorised person stating that the person considers in the

particular case that there are reasonable grounds for

believing that entry to premises or a motor vehicle is

necessary for the purposes of carrying out an

investigation or inquiry in the course of carrying out the

Commissioner’s functions under this Act or another Act;

and

(d) describe the premises or motor vehicle that are to be

entered.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 72

page 51 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) A magistrate or justice of the peace to whom an application is

made under this section must refuse it if —

(a) the application does not comply with the requirements of

this Act; or

(b) when required to do so by the magistrate or justice of the

peace, the applicant does not give to the magistrate or

justice of the peace more information about the

application.

(4) The information in an application or given to a magistrate or

justice of the peace under this section must be verified before

the magistrate or justice of the peace on oath or affirmation or

by affidavit, and the magistrate or justice of the peace may for

that purpose administer an oath or affirmation or take an

affidavit.

72. Warrants wanted urgently, may be obtained by telephone

etc.

(1) If an authorised person requires a warrant urgently, or a

magistrate or justice of the peace is not available within a

reasonable distance of the authorised person, the authorised

person may apply to a magistrate or justice of the peace by

telephone, fax or other electronic means for a warrant under

section 71.

(2) The magistrate or justice of the peace may —

(a) require communication by voice to the extent that it is

practicable in the circumstances; and

(b) make a recording of the whole or any part of any such

communication by voice.

(3) Before applying for the warrant, the authorised person must

prepare an affidavit that sets out the grounds on which the

warrant is sought.

(4) If it is necessary to do so, the authorised person may apply for

the warrant before the affidavit is sworn or affirmed.

(5) The magistrate or justice of the peace may complete and sign

the same warrant that the magistrate or justice of the peace

would issue under section 74 if the application had been made

under section 71 if the magistrate or justice of the peace is

satisfied that there are reasonable grounds for issuing the

warrant, after having —

(a) considered the terms of the affidavit; and

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 73

page 52 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) received such further information (if any) as the

magistrate or justice of the peace requires concerning the

grounds on which the issue of the warrant is sought.

73. Warrants by telephone etc., further provisions for

(1) If a magistrate or justice of the peace completes and signs a

warrant under section 72(5) —

(a) the magistrate or justice of the peace must —

(i) tell the authorised person what the terms of the

warrant are; and

(ii) tell the authorised person the day on which and

the time at which the warrant was signed; and

(iii) tell the authorised person the day (not more than

one week after the magistrate or justice of the

peace completes and signs the warrant) on which

the warrant ceases to have effect; and

(iv) record on the warrant the reasons for issuing the

warrant;

and

(b) the authorised person must —

(i) complete a form of warrant in the same terms as

the warrant completed and signed by the

magistrate or justice of the peace; and

(ii) write on the form the name of the magistrate or

justice of the peace and the day on which and the

time at which the warrant was signed.

(2) The authorised person must also, not later than the day after the

day of expiry or execution of the warrant, whichever is the

earlier, send to the magistrate or justice of the peace —

(a) the form of warrant completed by the authorised person;

and

(b) the affidavit referred to in section 72(3), which must

have been duly sworn or affirmed.

(3) When the magistrate or justice of the peace receives those

documents, the magistrate or justice of the peace must —

(a) attach them to the warrant that the magistrate or justice

of the peace completed and signed; and

(b) deal with them in the way in which the magistrate or

justice of the peace would have dealt with them if the

application had been made under section 71.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 74

page 53 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) A form of warrant duly completed under subsection (1)(b) is

authority for the same powers as are authorised by the warrant

signed by the magistrate or justice of the peace.

(5) If a magistrate or justice of the peace completes and signs a

warrant under section 72(5), in any proceedings a court must

assume, unless the contrary is proved, that the exercise of a

power was not authorised by the warrant if —

(a) it is material, in those proceedings, for the court to be

satisfied that the exercise of the power was authorised

by this section; and

(b) the warrant is not produced in evidence.

74. Warrants, issue and effect of

(1) A magistrate or justice of the peace to whom an application is

made under section 71 may issue a warrant if satisfied that the

authorised person has reasonable grounds for believing that

entry and inspection of the premises or motor vehicle are

necessary for the purposes of carrying out an investigation or

inquiry under this Act or another Act.

(2) A warrant under subsection (1) authorises the person to whom

the warrant is issued —

(a) to enter the premises or motor vehicle named in the

warrant and search the premises or motor vehicle and

any thing that is found on the premises or in or on the

motor vehicle; and

(b) to inspect documents and other things, and take copies

or extracts from documents found on the premises or in

or on the motor vehicle; and

tests on, any thing found on the premises, or in or on the

motor vehicle, that is relevant to the investigation or

inquiry; and

(d) to take and remove for examination, analysis or testing a

sample of any thing found on the premises, or in or on

the motor vehicle, that is relevant to the investigation or

inquiry, without paying for the sample; and

(e) to inspect any service carried on in the premises or from

the motor vehicle; and

(f) to take measurements or recordings of any sort; and

(g) to take photographs, sound and video recordings and

drawings of the premises or motor vehicle searched, and

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 75

page 54 [This compilation shows amendments proposed by Bill No. 19-2.]

of any thing found in those premises or in or on that

motor vehicle, if the person exercising the power has

reasonable grounds for believing that the photographs or

sound or video recordings or drawings may be relevant

to the purposes of the entry and search; and

(h) to seize things that may be seized under section 79.

(3) The warrant must state —

(a) the purpose for which the warrant is issued; and

(b) the name of the person to whom the warrant is issued;

and

be entered.

(4) The magistrate or justice of the peace who issues a warrant must

cause a record to be made of particulars of the grounds that the

magistrate or justice of the peace has relied on to justify the

issue of the warrant.

75. Warrants, powers under to obtain access information for

computers etc.

(1) In this section —

access information includes access codes, passwords, and

encryption keys, and any related information that enables access

to a computer or other data storage device;

specified person means a person who —

(a) is the owner or lessee of the computer or other data

storage device, or is in possession or control of the

computer or other data storage device, an employee of

any of the above, or any service provider who provides

service to the above and holds access information; and

(b) has relevant knowledge of —

(i) the computer or a computer network of which the

computer or other data storage device forms a

part; or

(ii) measures applied to protect data held in, or

accessible from, the computer or other data

storage device.

(2) A person executing a warrant under section 74 may require a

specified person to provide access information and other

information or assistance that is reasonable and necessary to

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 76

page 55 [This compilation shows amendments proposed by Bill No. 19-2.]

allow the person executing the warrant to access data held in, or

accessible from —

(a) a computer that is on the premises or in or on the motor

vehicle named in the warrant; or

(b) any other data storage device that is on the premises or

in or on the motor vehicle named in the warrant.

76. Warrants, further powers under

(1) A warrant under section 74 also authorises the person to whom

the warrant is issued —

(a) to bring and use in the premises or in or on the motor

vehicle named in the warrant any equipment, to use any

equipment found in the premises or in or on the motor

vehicle, and to extract any electricity or other form of

energy from the premises or vehicle to operate the

equipment that it is reasonable to use in the

circumstances, for the purposes of executing the

warrant; and

(b) to access and copy intangible material from computers

and other data storage devices located at or accessible

from the premises or vehicle named in the warrant

(including copying by means of previewing, cloning, or

other forensic methods either before or after removal for

examination); and

(i) gain access to any computer or other data storage

device that is at the premises or in or on the

vehicle named in the warrant, or that can be

accessed from a computer or other data storage

device that is at those premises or in or on that

vehicle; and

(ii) create a forensic copy of any material in such a

computer or other data storage device.

(2) This section does not limit section 74, 75 or 78.

77. Damage to equipment or data, compensation for

(1) This section applies where —

(a) either —

(i) damage is caused to equipment as a result of it

being operated as mentioned in section 76; or

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 78

page 56 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) the data recorded on or accessible from the

equipment is damaged;

and

(b) the damage was caused as a result of —

(i) insufficient care being exercised in selecting the

person who was to operate the equipment; or

(ii) insufficient care being exercised by the person

operating the equipment.

(2) Where this section applies, the owner of the equipment or the

user of data recorded on or accessible from the equipment is

entitled to compensation for the damage.

(3) For the purposes of subsection (1), damage to data includes

damage by erasure of data or addition of other data.

(4) An application for compensation is to be made to the

Commissioner.

(5) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises (or the person in

charge of the motor vehicle, as the case requires) and his or her

employees and agents, if they were available at the time, had

provided any warning or guidance as to the operation of the

equipment that was appropriate in the circumstances.

(6) Any compensation that is payable under this section is to be

charged to the Consolidated Account, and this Act, without

further appropriation, is sufficient authority for the payment of

the compensation.

78. Warrants, execution and duration of

(1) Entry authorised by a warrant under section 74 may be made

with whatever assistance and equipment is reasonably necessary

for the purpose for which entry is required.

(2) A person executing a warrant under section 74, and a person

assisting that person, may use any force that is reasonably

necessary for the execution of the warrant.

(3) A warrant authorising the entry and search of a motor vehicle

authorises the person executing the warrant to enter any place

where the person has reasonable grounds to believe that the

vehicle is, for the purpose of locating it and searching it.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 79

page 57 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) Before entering any premises or motor vehicle under a warrant,

the person executing the warrant must show the person, if any,

who gives the person entry to the premises or motor vehicle —

(a) in the case of the Commissioner, a document signed by

the Minister and certifying that the person is the

Commissioner; and

(b) in the case of an authorised person other than the

Commissioner, a document signed by the Commissioner

and certifying that that person is an authorised person.

(5) The person executing the warrant must produce it for inspection

if asked by —

(a) the occupier or a person in charge of the premises; or

(b) a person in charge of the motor vehicle.

(6) When executing a warrant, an authorised person may require

any person who has the control of any premises, motor vehicle

or thing that the authorised person is authorised to enter or

inspect to furnish reasonable access to it and to give other

reasonable assistance.

(7) A warrant ceases to have effect on the earliest of the

following —

(a) at the end of the period of one month after its issue;

(b) if it is withdrawn by the magistrate or justice of the

peace who issued it;

79. Seizing things

(1) An authorised person may seize a document or other thing that

is produced or given in response to a requirement under this

Division, or that is found as the result of executing a warrant

under this Division.

(2) However, a document or other thing cannot be seized unless the

authorised person reasonably suspects that the document or

thing —

(a) is being, or has been, used to commit a breach of this

Act or another Act that confers functions on the

Commissioner; or

(b) may provide evidence of the commission of a breach of

this Act or another Act that confers functions on the

Commissioner.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 80

page 58 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) As soon as practicable after the document or other thing is

seized, the authorised person must give a receipt for it to the

person from whom it was seized.

(4) The receipt must clearly describe the document or thing seized

and its condition.

(5) If, for any reason, it is not practicable to comply with

subsection (3), the authorised person must —

(a) leave the receipt at the place of seizure; and

(b) ensure the receipt is left in a reasonably secure way and

in a conspicuous position.

80. Seized things, copies of to be provided

(1) This section applies if the person executing a warrant relating to

premises seizes, under section 79 —

(a) a document, film, computer file or other thing that can

be readily copied; or

(b) a storage device, the information in which can be readily

copied.

(2) Where this section applies, the person executing the warrant

must, if requested to do so by the occupier of the premises or

another person who apparently represents the occupier and who

is present when the warrant is executed, give a copy of the

document, film, computer file, thing or information to that

person as soon as practicable after the seizure.

(3) Subsection (2) does not apply if possession by the occupier of

the document, film, computer file, thing or information could

constitute an offence.

81. Seized things, access to by owner

(1) Until a thing seized under section 79 is forfeited or returned, the

person in whose custody the seized thing is must allow its

owner to inspect it and, if it is a document, to copy it.

(2) Subsection (1) does not apply if it is impracticable or would be

unreasonable to allow the inspection or copying.

82. Seized things, return of

(1) Where a document or other thing is seized under section 79, an

authorised person may retain the document or other thing for as

long as is reasonably necessary for the purposes of —

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 83

page 59 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) the investigation to which the document or other thing is

relevant; and

(b) any proceedings to which the document or other thing is

relevant.

(2) When the retention of the document or other thing ceases to be

reasonably necessary for those purposes, the authorised person

must ensure that the document or other thing is delivered to the

person who appears to the authorised person to be entitled to

possession of it.

83. Seizure, SAT may review

(1) A person aggrieved by the seizure of any thing under section 79

may apply to the State Administrative Tribunal for a review of

the decision to seize the thing.

(2) In dealing with an application under subsection (1), the State

Administrative Tribunal may determine whether the thing

seized must be destroyed, disposed of, forfeited to the State,

restored to the person from whom it was seized or otherwise

dealt with.

(3) Subsection (2) does not limit the powers that the State

Administrative Tribunal Act 2004 gives the State Administrative

Tribunal.

(4) If an application under subsection (1) consists of or includes a

claim that legal professional privilege applies to the thing

seized, the State Administrative Tribunal hearing the application

is to be constituted by —

(a) a judicial member; and

(b) such other members, if any, as the President considers

appropriate.

(5) In subsection (4), each of these terms has the meaning given in

the State Administrative Tribunal Act 2004 section 3(1) —

judicial member

President

[Section 83 amended: No. 23 of 2014 s. 12.]

84. Seized things, forfeiture of

(1) The Commissioner may determine that a thing seized under

section 79 is forfeited to the State if the authorised person who

seized the thing —

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 85

page 60 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) cannot find its owner, after making reasonable inquiries;

(b) cannot return the thing to the owner or other person

entitled to possession of the thing, after making

reasonable efforts.

(2) In applying subsection (1) —

(a) subsection (1)(a) does not require the authorised person

to make inquiries if it would be unreasonable to make

inquiries to find the owner; and

(b) subsection (1)(b) does not require the authorised person

to make efforts if it would be unreasonable to make

efforts to return the thing to the owner or other person

entitled to possession of the thing.

(3) Regard must be had to a thing’s nature, condition and value in

deciding —

(a) whether it is reasonable to make inquiries or efforts; and

(b) if making inquiries or efforts, what inquiries or efforts,

including the period over which they are made, are

reasonable.

85. Forfeited things, dealing with

(1) On the forfeiture of a thing to the State under section 84, the

thing becomes the property of the State, and may be dealt with

as the chief executive officer considers appropriate.

(2) Without limiting subsection (1), the chief executive officer may

cause the thing to be destroyed, sold or disposed of.

86. Privilege against self-incrimination doesn’t apply

(1) Where under section 69 a person is required to give any

information, or answer any question or produce any document

or thing —

(a) that person cannot refuse to comply with that

requirement on the ground that the information, answer,

document or thing may tend to incriminate the person or

render the person liable to any penalty; but

(b) the information or answer given, or document or thing

produced, by the person is not admissible in evidence in

any proceedings against the person other than

proceedings in respect of an offence against

section 88(1)(b).

Fair Trading Act 2010

Investigation and enforcement Part 6

Specific powers for enforcement of licensing and regulatory provisions

Division 4A

s. 87

page 61 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) This section is without prejudice to the provisions of the

Evidence Act 1906 section 11.

87. Information obtained, use of etc.

(1) Information concerning the affairs of a person that is obtained

under this Division by an authorised person may (for the

purposes of section 112 (which relates to the confidentiality of

information officially obtained)) be recorded, used or disclosed

on the basis that it has been acquired by the authorised person

for the purposes of this Act.

(2) Where an authorised person copies a document under

section 69(1)(d) or when executing a warrant —

(a) the authorised person may certify the copy as being a

true and accurate copy of the document; and

(b) in the absence of proof to the contrary, the certified copy

is to be accepted by any court or tribunal as evidence of,

and as having equal validity as, the original.

Division 4A — Specific powers for enforcement of licensing and

regulatory provisions

[Heading inserted: No. 58 of 2010 s. 8.]

88A. Terms used

In this Division —

authorisation means a licence, registration, approval, permit,

exemption, certificate or other form of authority;

registration Act means an Act listed in Schedule 2;

regulated activity means an occupation or activity that can be

lawfully carried on only under an authorisation granted or

obtained under a registration Act;

regulated person means a person who carries on a regulated

activity.

[Section 88A inserted: No. 58 of 2010 s. 8.]

88B. Investigations and inquiries for licensing and regulatory

purposes, Commissioner’s powers to make

(1) For the purposes of performing the Commissioner’s functions

under section 57A, the Commissioner may, of the

Commissioner’s own motion, make any investigation or inquiry

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 4A Specific powers for enforcement of licensing and regulatory provisions

s. 88C

page 62 [This compilation shows amendments proposed by Bill No. 19-2.]

that the Commissioner considers necessary or expedient for any

of the following purposes —

(a) determining any application or other matter before the

Commissioner;

(b) determining whether or not a regulated person is or has

been complying with —

(i) the conditions, if any, of their authorisation; or

(ii) the requirements of the registration Act under

which he or she holds an authorisation; or

(iii) a code of conduct applying to the regulated

person under a registration Act;

might be considered by the Commissioner to be grounds

for disciplinary action against a regulated person under a

registration Act;

(d) detecting offences against a registration Act.

(2) An authorised person may make an investigation or inquiry

under this section on behalf of the Commissioner.

[Section 88B inserted: No. 58 of 2010 s. 8.]

88C. Authorised persons’ powers for this Division

Authorised persons may exercise the powers set out in

Division 3 for the purposes of the performance of any function

under this Division.

[Section 88C inserted: No. 58 of 2010 s. 8.]

88D. Police assistance with investigations and inquiries

(1) The Commissioner of Police must, at the request of the

Commissioner, arrange for one or more police officers —

(a) to make an investigation or inquiry relating to any

matter that is the subject of investigation or inquiry

under section 88B; and

(b) to report on the results of their investigation or inquiry.

(2) The report must be forwarded to the Commissioner.

(3) Where a police officer makes an investigation or inquiry or

report relating to any matter that is the subject of investigation

or inquiry under section 88B —

(a) in addition to any power, authority, and immunity of the

police officer apart from this Act, the police officer has

Fair Trading Act 2010

Investigation and enforcement Part 6

Specific powers for enforcement of licensing and regulatory provisions

Division 4A

s. 88E

page 63 [This compilation shows amendments proposed by Bill No. 19-2.]

the same powers, authorities, and immunities as an

investigator appointed under this Act has in respect of

the same matter; and

(b) for the purposes of section 66, it is sufficient if the

police officer identifies himself or herself as a police

officer to the person, if any, affording entry to the police

officer.

[Section 88D inserted: No. 58 of 2010 s. 8.]

88E. Compliance checks at regulated person’s business premises,

powers for

(1A) This section does not apply to the extent that the purpose of

exercising a power under subsection (1) is in relation to a

regulated activity carried on by a regulated person under the

Charitable Collections Act 1946.

(1) An authorised person may, for all or any of the purposes listed

in subsection (2) —

(a) during normal business hours, enter premises where the

business of a regulated person is being carried on,

without obtaining a warrant under section 74; and

(b) exercise the powers in sections 69, 79 and 87 once entry

is made.

(2) The purposes referred to in subsection (1) are as follows —

(a) to determine whether or not a regulated person is or has

been complying with the conditions, if any, of their

authorisation;

(b) to determine whether or not a regulated person is or has

been complying with the requirements of the registration

Act under which he or she holds an authorisation;

been complying with a code of conduct applying to the

registered person under a registration Act.

(3) An authorised person may invoke the powers in subsection (1)

even though an investigation is not under way in relation to any

particular regulated person.

[Section 88E inserted: No. 58 of 2010 s. 8; amended: No. 25

of 2019 s. 28.]

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 4 Offences

s. 88

page 64 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 4 — Offences

88. Failing to cooperate with investigation

(1) A person commits an offence who, without reasonable excuse

(proof of which lies on the person), when required under

Division 3 or 4A to give any information, answer any question

or produce any document or thing —

(a) fails to give that information or answer that question at

or within the time specified in the requirement; or

(b) gives any information or answer that is false or

misleading in any material particular; or

time specified in the requirement.

Penalty: a fine of $10 000.

(2) It is a defence in any proceeding for an offence under

subsection (1)(a) or (c) for the accused to show —

(a) that, in the case of an alleged offence arising out of a

requirement made orally under section 69, the authorised

person did not, when making the requirement, inform

the accused that he or she was required under this Act or

the other Act that is relevant to give the information,

answer the question or produce the document or thing,

as the case requires; or

(b) that, in the case of an alleged offence arising out of a

requirement made by notice in writing under section 69,

the notice did not state that the accused was required

under this Act or the other Act that is relevant to give the

information, answer the question or produce the

document or thing, as the case requires; or

the accused sufficient notice to enable him or her to

comply with the requirement; or

(d) that, in any case, the authorised person did not, before

making the requirement, have reasonable grounds to

believe that compliance with the requirement would

materially assist in the investigation or inquiry being

carried out.

[Section 88 amended: No. 58 of 2010 s. 9.]

Fair Trading Act 2010

Investigation and enforcement Part 6

Offences Division 4

s. 89

page 65 [This compilation shows amendments proposed by Bill No. 19-2.]

89. Obstructing authorised person

(1) A person must not prevent or attempt to prevent an authorised

person from entering premises or a motor vehicle in the exercise

of the authorised person’s powers under section 69.

Penalty: a fine of $2 000.

(2A) A person must not prevent or attempt to prevent an authorised

person from entering business premises in the exercise of the

authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(2) A person must not obstruct or impede an authorised person in

the exercise of the authorised person’s powers under section 69

or 88E.

Penalty: a fine of $2 000.

(3) A person must comply with a requirement to assist an

authorised person executing a warrant under section 74 when

requested to do so under section 75(2).

Penalty: a fine of $2 000.

(4) A person must comply with a requirement to furnish reasonable

access to a place or motor vehicle, or to give other reasonable

assistance to an authorised person under section 78(6).

Penalty: a fine of $2 000.

(5A) A person must comply with a requirement to furnish reasonable

access to business premises, or to give other reasonable

assistance to an authorised person, when the authorised person

is exercising the authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(5) For the purposes of this section, a reference to an authorised

person includes an assistant accompanying an investigator in

accordance with section 67.

[Section 89 amended: No. 58 of 2010 s. 10.]

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 1 Preliminary

s. 90

page 66 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 7 — Criminal and civil proceedings

Division 1 — Preliminary

90. Term used: person involved in a contravention of a

provision of this Act

A reference in this Part to a person involved in a contravention

of a provision of this Act is to be read as a reference to a person

who —

(a) has aided, abetted, counselled or procured the

contravention; or

(b) has induced, whether by threats or promises or

otherwise, the contravention; or

concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention; or

(e) has attempted to contravene the provision, or to do any

act of a kind referred to in paragraph (a), (b), (c) or (d).

[Section 90 amended: No. 11 of 2013 s. 13.]

Division 2 — Criminal proceedings

91. Time limit for commencing proceedings

Proceedings for an offence against this Act may be commenced

within 3 years after the alleged commission of the offence.

92. Who may institute criminal proceedings

(1) Prosecutions for offences against this Act may be instituted by

the Commissioner or by a person authorised in writing by the

Commissioner.

(2) No other person may institute a prosecution for an offence

against this Act unless written consent to the institution of the

prosecution is given by —

(a) the Commissioner; or

(b) a person authorised in writing by the Commissioner to

give consents under this section.

(3) In proceedings for an offence against this Act, a document

giving consent to the institution of a prosecution and purporting

to have been signed by the Commissioner, or by an authorised

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Criminal proceedings Division 2

s. 93

page 67 [This compilation shows amendments proposed by Bill No. 19-2.]

person, is evidence of that consent without proof of the

signature.

93. Court of summary jurisdiction to be constituted by

magistrate

A court of summary jurisdiction dealing with an offence under

this Act is to be constituted by a magistrate.

94. Courts’ other powers in criminal proceedings

(1) Where proceedings in the Supreme Court or the District Court

are taken against a person for contravening, or being involved in

a contravention of, a provision of this Act, the Court, in addition

to dealing with the offence charged, may —

(a) grant an injunction under section 99 or 100 against the

person in relation to —

(i) the conduct that constitutes, or is alleged to

constitute, the contravention; or

(ii) other conduct of that kind;

and

(b) make an order under section 105 in relation to the

contravention.

(2) If a person is convicted of an offence against this Act, the court

by which the conviction was effected may order the offender to

reimburse the Department for the cost of purchasing or testing

any goods to which the conviction relates.

(3) Where a person is, by any conviction or order of a court,

adjudged to pay a fine, or costs or other sum of money in

respect of an offence against this Act, the court by which the

conviction or order was effected or made may —

(a) exercise any power that the court has apart from this

section; or

(b) on the application of the Minister or the Commissioner,

order that the amount unpaid be recoverable as if it were

a judgment debt payable by the defaulter to the Crown

under a judgment entered up in the court.

95. Vicarious liability of directors, employers etc.

(1) Where a corporation within the meaning of the Corporations

Act 2001 (Commonwealth) or any other body of persons,

corporate or unincorporate, is convicted of an offence against

this Act, each person who, at the time of the commission of that

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 2 Criminal proceedings

s. 95

page 68 [This compilation shows amendments proposed by Bill No. 19-2.]

offence, was a director of the corporation or was the manager,

secretary or other similar officer of that body, or who purported

to act in any of those capacities, is also guilty of an offence

unless the person proves —

(a) that the offence was committed without the person’s

knowledge, or that the person did not authorise or permit

the commission of the offence; and

(b) that the person was not in a position to influence the

conduct of that corporation or body or, being in such a

position, could not by the exercise of reasonable

diligence have prevented the commission of the offence.

(2) A person who is guilty of an offence by virtue of subsection (1)

is liable to a penalty not exceeding the penalty prescribed for the

offence of which the corporation or body was convicted.

(3) Where the affairs of a body of persons are managed by its

members, subsection (1) applies in relation to the acts and

defaults of a member in connection with the member’s function

of management as if the person were the manager of that body.

(4) Where the employee or agent of a person (person A) is

convicted of an offence against this Act, each person (person B)

who, at the time of the commission of the offence, was

person A’s employer or principal —

(a) is also guilty of an offence, unless person B proves that

person B could not by the exercise of reasonable

diligence have prevented the commission of the offence

of which person A was convicted; and

(b) is liable to a penalty not exceeding the penalty

prescribed for the offence of which person A was

convicted.

(5) Where a person has committed an offence against the Australian

Consumer Law (WA) Part 2-1 or Part 2-2 or Part 3-1 (other than

Divisions 2 and 3), or would have committed an offence but for

the fact that the person could establish a defence under

section 96 or 97, and the contravention, or what would have

constituted the contravention, was due to the act or default of

another person —

(a) that other person —

(i) is also guilty of an offence and liable to the same

penalty as is provided for the offence against the

Australian Consumer Law (WA) Part 2-1 or

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Criminal proceedings Division 2

s. 96

page 69 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2-2 or Part 3-1 (other than Divisions 2

and 3); and

(ii) may be charged and convicted of the offence,

whether or not proceedings are taken against the

first-mentioned person for the offence against the

Australian Consumer Law (WA) Part 2-1 or

Part 2-2 or Part 3-1 (other than Divisions 2

and 3);

and

(b) the first-mentioned person is a competent and

compellable witness in any proceedings taken against

that other person in respect of the offence.

96. Defence: reasonable mistake of fact

(1) In a prosecution under this Part for an offence against this Act,

it is a defence if the accused establishes that the contravention in

respect of which the proceeding was instituted was due to

reasonable mistake of fact, including a mistake of fact caused by

reasonable reliance on information supplied by another person.

(2) However, subsection (1) does not apply in relation to

information relied upon by the accused that was supplied to the

accused by another person who was, at the time when the

contravention occurred —

(a) an employee or agent of the accused; or

(b) if the accused is a body corporate, a director, employee

or agent of the accused.

(3) If a defence provided by subsection (1) involves an allegation

that a contravention was due to reliance on information supplied

by another person, the accused is not entitled to rely on that

defence unless —

(a) the court gives leave; or

(b) the accused has, not later than 7 days before the day on

which the hearing of the proceeding commences, served

on the person who instituted the proceeding a notice in

writing giving whatever information the accused then

had that would identify or assist in identifying the other

person.

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 2 Criminal proceedings

s. 97

page 70 [This compilation shows amendments proposed by Bill No. 19-2.]

97. Defences: accident, act or default of another etc.

(1) In a prosecution under this Part for an offence against this Act,

it is a defence if the accused establishes that —

(a) the contravention in respect of which the proceeding was

instituted was due to —

(i) the act or default of another person; or

(ii) an accident; or

(iii) some other cause beyond the accused’s control;

and

(b) the accused took reasonable precautions and could not

by the exercise of due diligence have prevented the

commission of the offence.

(2) However, subsection (1) does not apply in relation to the act or

default of another person who was, at the time when the

contravention occurred —

(a) an employee or agent of the accused; or

(b) if the accused is a body corporate, a director, employee

or agent of the accused.

(3) If a defence provided by subsection (1) involves an allegation

that a contravention was due to the act or default of another

person, the accused is not entitled to rely on that defence

unless —

(a) the court gives leave; or

(b) the accused has, not later than 7 days before the day on

which the hearing of the proceeding commences, served

on the person who instituted the proceeding a notice in

writing giving whatever information the accused then

had that would identify or assist in identifying the other

person.

98. Defence: publication of advertisements in ordinary course of

business

In a proceeding under this Part in relation to a contravention of

this Act committed by the publication of an advertisement, it is

a defence if it is established —

(a) that the accused is a person whose business it is to

publish or arrange for the publication of advertisements;

and

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 99

page 71 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) that the accused received the advertisement for

publication in the ordinary course of business; and

suspect that its publication would amount to a

contravention of this Act.

Division 3 — Civil proceedings

99. Injunctions to prevent or stop contraventions of Act

(1) The Supreme Court or the District Court, on the application of

the Minister, the Commissioner or any other person, may grant

an injunction in whatever terms the Court determines to be

appropriate where the Court is satisfied that a person —

(a) has engaged, or is proposing to engage, in conduct that

constitutes or would constitute a contravention of a

provision of this Act; or

(b) is involved in a contravention of a provision of this Act.

(2) The power of the Court to grant an injunction restraining a

person (person A) from engaging in conduct may be

exercised —

(a) whether or not it appears to the Court that person A

intends to engage again, or to continue to engage, in

conduct of that kind; and

(b) whether or not person A has previously engaged in

conduct of that kind; and

substantial damage to any person if person A engages in

conduct of that kind.

100. Injunctions to prevent etc. other contraventions

(1) The Supreme Court or the District Court, on the application of

the Commissioner, may grant an injunction in whatever terms

the Court determines to be appropriate where the Court is

satisfied that a person has engaged, or is proposing to engage, in

conduct that constitutes, or would constitute, or is involved in, a

contravention of —

(a) an interim ban or a permanent ban under the Australian

Consumer Law (WA) Part 3-3 Division 2; or

(b) a provision of any other legislation administered by the

Minister or of an order made under any such legislation,

being a provision relevant to the alleged contravention;

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 101

page 72 [This compilation shows amendments proposed by Bill No. 19-2.]

under Part 4 in respect of which the Commissioner has

applied to the State Administrative Tribunal under

section 47; or

(d) a provision of an order of the State Administrative

Tribunal under section 47.

(2) If the Court is satisfied, on the application of the Commissioner,

that a person has engaged in conduct constituting, or is involved

in, a contravention of a provision of this Act, the Court may

grant an injunction requiring that person to take specified action

to remedy any adverse consequence of that conduct,

including —

(a) an order requiring that person or a person involved in the

contravention to disclose, in the way and to the persons

specified in the order, such information as is so

specified, being information that the person has

possession of or access to; or

(b) an order requiring the person or a person involved in the

contravention to publish, at the person’s own expense

and in the way specified in the order, an advertisement

in the terms specified in, or determined in accordance

with, the order.

101. Injunctions, general provisions about

(1) An injunction granted under this Division may be, or include, an

injunction restraining a person from carrying on a business of

supplying goods or services (whether or not as part of, or

incidental to, the carrying on of another business) —

(a) for a specified period; or

(b) except on specified terms and conditions.

(2) The power of the Court to grant an injunction under this

Division requiring a person to do an act or thing may be

exercised —

(a) whether or not it appears to the Court that the person

intends to refuse or fail again, or to continue to refuse or

fail, to do that act or thing; and

(b) whether or not the person has previously refused or

failed to do that act or thing; and

substantial damage to any person if the first-mentioned

person refuses or fails to do that act or thing.

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 102

page 73 [This compilation shows amendments proposed by Bill No. 19-2.]

102. Interim injunctions

(1) An interim injunction may be granted under this Division

pending final determination of the application.

(2) Where the Minister or the Commissioner makes an application

to the Court for the grant of an injunction under this Division,

the Court must not require the applicant or any other person, as

a condition of granting an interim injunction, to give any

undertakings as to damages or costs.

(3) If, in a case to which subsection (2) does not apply, the Court

would, but for this subsection, require a person to give an

undertaking as to damages or costs, then —

(a) if the Minister gives the undertaking, the Court must

accept the undertaking by the Minister; and

(b) the Court must not require a further undertaking from

any other person.

103. Final injunction may be granted if parties consent

A final injunction may, by consent of the parties, be granted

under this Division without proof that proper grounds for the

injunction exist.

104. Injunction may be rescinded or varied

An injunction under this Division may be rescinded or varied at

any time.

105. Supreme and District Courts’ other powers in Part 7

proceedings

(1) Without limiting the generality of section 99 or 100, if, in a

proceeding instituted under this Part, or for an offence against

this Act, the Supreme Court or the District Court is satisfied that

a person has suffered, or is likely to suffer, loss or damage by

reason of conduct of another person that contravened a

provision of this Act, the Court may make such order or orders

as the Court thinks appropriate against the person who engaged

in the conduct or a person who was involved in the

contravention for the purpose of compensating the

first-mentioned person wholly or in part for the loss or damage

or of preventing or reducing the extent of the loss or damage.

(2) The Court may make an order under this section whether or not

an injunction under this Division or any other relief is granted or

any other order is made in the proceedings.

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 105

page 74 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) Whether or not other proceedings have been instituted under

this Act in relation to a contravention, the Court may make

orders under this section —

(a) on the application of a person who has suffered, or is

likely to suffer, loss or damage by reason of the

contravention; or

(b) on the application of the Commissioner on behalf of one

or more such persons made with the written consent of

each such person.

(4) The orders that may be made under this section include the

following —

(a) an order declaring the whole or any part of a contract

made between the person who suffered, or is likely to

suffer, the loss or damage and the person who engaged

in the conduct or a person who was involved in the

contravention constituted by the conduct, or of a

collateral arrangement relating to such a contract, to be

void and, if the Court thinks fit, to have been void from

its beginning or at all times on and after such date,

before the date on which the order is made, as is

specified in the order;

(b) an order varying such a contract or arrangement in such

manner as is specified in the order and, if the Court

thinks fit, declaring the contract or arrangement to have

had effect as so varied on and after such date, before the

date on which the order is made, as is so specified;

of such a contract or arrangement;

(d) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct to refund

money or return property to the person who suffered the

loss or damage;

(e) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct to pay to the

person who suffered the loss or damage the amount of

the loss or damage;

(f) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct, at the person’s

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 106

page 75 [This compilation shows amendments proposed by Bill No. 19-2.]

own expense, to supply specified services to the person

who suffered, or is likely to suffer, the loss or damage;

(g) an order, in relation to an instrument creating or

transferring an interest in land, directing the person who

engaged in the conduct or a person who was involved in

the contravention constituted by the conduct to execute

an instrument that —

(i) varies, or has the effect of varying, the

first-mentioned instrument; or

(ii) terminates or otherwise affects, or has the effect

of terminating or otherwise affecting, the

operation or effect of the first-mentioned

instrument.

(5) The powers conferred on the Supreme Court and the District

Court under this section in relation to a contract or arrangement

do not affect any powers that any other court may have in

relation to the contract or arrangement in proceedings instituted

in that other court in respect of the contract or arrangement.

106. Supreme and District Courts’ powers to prohibit payments,

transfers of property etc.

(1) In this section, a person (the first person) is an associate of

another person if —

(a) the first person holds money or other property on behalf

of the other person; or

(b) if the other person is a body corporate, the first person is

a wholly-owned subsidiary (within the meaning of the

Corporations Act 2001 (Commonwealth)) of the other

person.

(2) A Court may, on the application of the Minister or the

Commissioner, make an order or orders of the kind specified in

subsection (4) if —

(a) proceedings of a kind referred to in subsection (3) have

been taken against a person, or proceedings of a kind

referred to in subsection (3)(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 for the purpose of preserving

money or other property held by, or on behalf of, the

person if the person is liable or may become liable under

this Act —

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 106

page 76 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) to pay moneys by way of a fine, damages,

compensation, refund or otherwise; or

(ii) to transfer, sell or return other property;

and

orders will not unduly prejudice the rights and interests

of any other person.

(3) For the purposes of subsection (2)(a), the kinds of proceedings

taken against the person are as follows —

(a) proceedings in the Supreme Court or the District Court

against the person for an offence against this Act;

(b) an application under section 99 or 100 for an injunction

against the person in relation to a contravention of a

provision of this Act;

section 236(1) against the person in relation to a

contravention of a provision of this Act;

(d) an application for an order under section 105 against a

person in relation to a contravention of a provision of

this Act.

(4) The Court may make the following orders under subsection (2)

in relation to money or other property held by, or on behalf of, 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 on behalf of the respondent, or on behalf of 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

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 107

page 77 [This compilation shows amendments proposed by Bill No. 19-2.]

or request of the respondent, or otherwise parting

with possession of that property;

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;

(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;

(e) if the respondent is a natural person, an order appointing

a receiver or trustee of the property, or of part of the

property, of the respondent with such powers as are

specified in the order.

(5) If the Court makes an order under this section, the order

operates —

(a) for a period specified in the order (which must not be

longer than 30 days if the application for the order was

made in the absence of the person against whom the

order is sought); or

(b) if proceedings in relation to which the order is made are

concluded before the end of that period, until the

conclusion of those proceedings.

(6) This section —

(a) has effect subject to the Bankruptcy Act 1966

(Commonwealth); and

(b) does not affect any other powers of the Supreme Court

or the District Court.

107. Contravening s. 106 order, offence

A person who contravenes or fails to comply with an order by

the Supreme Court or the District Court under section 106 that

is applicable to the person is guilty of a crime.

Penalty:

(a) in the case of a body corporate, a fine of $1 100 000;

(b) in the case of a person other than a body corporate, a

fine of $220 000.

Summary conviction penalty: a fine of $36 000.

[Section 107 amended: No. 11 of 2013 s. 14.]

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 4 Further provisions relating to proceedings

s. 108

page 78 [This compilation shows amendments proposed by Bill No. 19-2.]

108. Findings of fact or admissions in certain proceedings to be

evidence in others

(1) In an action against a person under the Australian Consumer

Law (WA) section 236(1) —

(a) a finding of a fact by a court, or an admission of a fact

by the person, in proceedings to which subsection (3)

applies is prima facie evidence of that fact; and

(b) the finding or admission may be proved by production

of a document under the seal of the court from which the

finding or admission appears.

(2) In proceedings for an order against a person under

section 105(3) or the Australian Consumer Law (WA)

section 237(1), 238(1) or 239(1) —

(a) a finding of a fact by a court, or an admission of a fact

by the person, in proceedings to which subsection (3)

applies is prima facie evidence of that fact; and

(b) the finding or admission may be proved by production

of a document under the seal of the court from which the

finding or admission appears.

(3) This subsection applies to proceedings under section 99 or 100,

or the Australian Consumer Law (WA) section 228, 232, 246,

247 or 248, or for an offence against this Act, in which the

person has been found to have contravened, or to have been

involved in a contravention of, a provision of the Australian

Consumer Law (WA) Chapter 2, 3 or 4.

[Section 108 amended: No. 26 of 2019 s. 8.]

Division 4 — Further provisions relating to proceedings

109. State of mind of person, meaning of in s. 110 and 111

A reference in sections 110 and 111 to the state of mind of a

person includes a reference to —

(a) the knowledge, intention, opinion, belief or purpose of

the person; and

(b) the person’s reasons for that intention, opinion, belief or

purpose.

110. State of mind and conduct of body corporate, establishing

(1) Where, in a proceeding under this Part or the Australian

Consumer Law (WA) in respect of conduct that is engaged in by

a body corporate and to which this Part or the Australian

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Further provisions relating to proceedings Division 4

s. 111

page 79 [This compilation shows amendments proposed by Bill No. 19-2.]

Consumer Law (WA) applies, it is necessary to establish the

state of mind of the body corporate, it is sufficient to show —

(a) that a director, employee or agent of the body corporate

engaged in that conduct within the scope of the person’s

actual or apparent authority; and

(b) that the director, employee or agent had that state of

mind.

(2) Conduct of the kind set out in paragraph (a) or (b) that is

engaged in on behalf of a body corporate is to be treated, for the

purposes of this Act, as having been engaged in by the body

corporate as well —

(a) conduct by a director, employee or agent of the body

corporate within the scope of the person’s actual or

apparent authority; or

(b) conduct by any other person at the direction or with the

consent or agreement (whether express or implied) of a

director, employee or agent of the body corporate, if the

giving of the direction, consent or agreement is within

the scope of the actual or apparent authority of the

director, employee or agent.

111. State of mind and conduct of principal (not a body

corporate), establishing

(1) Where, in a proceeding under this Part or the Australian

Consumer Law (WA) in respect of conduct that is engaged in by

a person (the principal) other than a body corporate and to

which this Part or the Australian Consumer Law (WA) applies, it

is necessary to establish the state of mind of the principal, it is

sufficient to show —

(a) that an employee or agent of the principal engaged in

that conduct within the scope of the person’s actual or

apparent authority; and

(b) that the employee or agent had that state of mind.

(2) Conduct of the kind set out in paragraph (a) or (b) that is

engaged in on behalf of a person (the principal) other than a

body corporate is to be treated, for the purposes of this Act, as

having been engaged in by the principal as well —

(a) conduct by an employee or agent of the principal within

the scope of the person’s actual or apparent authority; or

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 4 Further provisions relating to proceedings

s. 111

page 80 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) conduct by any other person, at the direction or with the

consent or agreement (whether express or implied) of an

employee or agent of the principal, if the giving of the

direction, consent or agreement is within the scope of

the actual or apparent authority of the employee or

agent.

Fair Trading Act 2010

Miscellaneous Part 8

s. 112

page 81 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 8 — Miscellaneous

112. Personal information obtained officially, when may be

divulged etc.

(1) In this section —

personal information means information concerning the affairs

of a person;

regulated person has the meaning given in section 88A.

(2) A person must not, either directly or indirectly, make a record

of, or divulge or communicate to any other person, any personal

information obtained by him or her by reason of his or her

office, position, employment or engagement under or for the

purposes of this Act.

Penalty: a fine of $20 000.

(3) Subsection (2) does not prohibit the recording, divulging or

communicating of any personal information —

(a) with the consent of the person to whom the information

relates, or each of them if there is more than one; or

(b) in a manner that could not reasonably be expected to

lead to the identification of any person to whom the

information relates; or

connection with —

(i) this Act; or

(ii) an Act listed in Schedule 2;

(da) for the purposes of giving information to a body

established under a written law if —

(i) the information concerns the affairs of a

regulated person or former regulated person; and

(ii) the information is given in relation to the

performance by that body of a function under or

in connection with that written law;

(d) for the purposes of legal proceedings arising out of the

administration of this Act or another written law; or

(e) for the purpose of the investigation of any suspected

offence or the conduct of proceedings against any person

for any offence; or

Fair Trading Act 2010

Part 8 Miscellaneous

s. 113

page 82 [This compilation shows amendments proposed by Bill No. 19-2.]

(f) by the Commissioner for the purpose of making the

public aware of —

(i) investigations or inquiries being conducted into

the conduct of a regulated person, former

regulated person or purported regulated person,

and the results of those inquiries; and

(ii) disciplinary action being contemplated or

undertaken in relation to a regulated person,

former regulated person or purported regulated

person, and the outcome of that action.

(4) Nothing in this section affects the operation of the

Parliamentary Privileges Act 1891.

[Section 112 amended: No. 58 of 2010 s. 11; No. 23 of 2014

s. 13.]

113. Information obtained officially may be used for certain

other purposes and legislation

(1) This section applies to information that is obtained by a person

by reason of his or her office, position, employment or

engagement under or for the purposes of this Act.

(2) Without limiting section 112(3), the fact that information to

which this section applies is obtained in connection with the

performance of a particular function under this Act does not

prevent that information from being used or disclosed in

connection with the performance of —

(a) any other function under this Act; or

(b) any function under any other written law that is

administered through the Department.

114. Protection from liability for wrongdoing

(1) In this section —

(a) a reference to the doing of anything includes a reference

to an omission to do anything; and

(b) liability includes liability for defamation.

(2) A person is not liable for anything that the person has done, in

good faith, in the course of the operations of the Department or

the administration of this Act.

(3) The Crown is also relieved of any liability that it might

otherwise have had for another person having done anything as

described in subsection (2).

Fair Trading Act 2010

Miscellaneous Part 8

s. 115

page 83 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) The protection given by this section applies even though the

thing done as described in subsection (2) may have been capable

of being done whether or not this Act had been enacted.

(5) This section is subject to the Chattel Securities Act 1987

sections 24 and 25.

115. Protection from liability for publishing official statements

(1) In this section —

liability includes liability for defamation.

(2) This section applies to statements made or issued by a person in

the course of the operations of the Department or the

administration of this Act.

(3) A person is not liable for publishing, in good faith —

(a) a statement to which this section applies; or

(b) a fair report or summary of a statement to which this

section applies.

(4) Nothing in this section limits section 114.

116. Regulations

(1) The Governor may make regulations prescribing all matters that

are required or permitted by this Act to be prescribed, or are

necessary or convenient to be prescribed for giving effect to the

purposes of this Act.

(2) A regulation may create an offence punishable by a penalty of a

fine not exceeding $2 000.

(3) Without limiting subsection (1), regulations made under that

subsection may —

(a) prescribe calling hours with respect to unsolicited

consumer agreements under the Australian Consumer

Law (WA) section 73;

(b) provide that the Australian Consumer Law (WA)

Part 3-2 Division 2 (unsolicited consumer agreements)

does not apply, or provisions of that Division that are

specified in the regulations do not apply, to or in relation

to agreements of a kind specified in the regulations.

(4) Regulations made under subsection (3)(a) may alter the

operation of the Australian Consumer Law (WA) sections 73(1)

and 170(1).

Fair Trading Act 2010

Part 8 Miscellaneous

s. 116

page 84 [This compilation shows amendments proposed by Bill No. 19-2.]

(5) Regulations made under subsection (3)(b) may alter the

operation of the Australian Consumer Law (WA) Part 3-2

Division 2.

Fair Trading Act 2010

Transitional provisions Part 9

s. 117

page 85 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 9 — Transitional provisions

117. Regulations for transitional matters

(1) If there is not sufficient provision in this Act for dealing with a

transitional matter, regulations under this Act may prescribe all

matters that are required or necessary or convenient to be

prescribed for dealing with the matter.

(2) In subsection (1) —

transitional matter —

(a) means a matter that needs to be dealt with for the

purpose of effecting the transition from the provisions of

the Consumer Affairs Act 1971, Door to Door Trading

Act 1987 and Fair Trading Act 1987 to the provisions of

this Act; and

(b) includes a saving or application matter.

(3) Regulations made under subsection (1) may provide that

specified provisions of a written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specified modifications to or in relation to

any matter.

(4) If regulations under subsection (1) provide that a specified state

of affairs is taken to have existed, or not to have existed, on and

from a day that is earlier than the day on which the regulations

are published in the Gazette but not earlier than the day this

section comes into operation, the regulations have effect

according to their terms.

(5) In subsections (3) and (4) —

specified means specified or described in the regulations.

(6) If regulations contain a provision referred to in subsection (4),

the provision does not operate so as —

(a) to affect, in a manner prejudicial to any person (other

than the State), the rights of that person existing before

the day of publication of those regulations; or

(b) to impose liabilities on any person (other than the State

or an authority of the State) in respect of anything done

or omitted to be done before the day of publication of

those regulations.

(7) Regulations made under subsection (1) in relation to a matter

referred to in subsection (3) must be made within such period as

Fair Trading Act 2010

Part 9 Transitional provisions

s. 118

page 86 [This compilation shows amendments proposed by Bill No. 19-2.]

is reasonably and practicably necessary to deal with a

transitional matter that arises as a result of the enactment of this

Act.

118. Fair Trading (Product Information Standard)

Regulation 2005 Part 4 (builders plates for recreational

vessels), continuation of

(1) The Fair Trading (Product Information Standard)

Regulations 2005 (other than Parts 2 and 3) continue in force

after the commencement of this section as if those regulations

were an information standard under the Australian Consumer

Law (WA) Part 3-4, and may be enforced accordingly.

(2) The regulations continued in force by subsection (1) may be

repealed as if they were regulations made under section 116.

119. Orders made before 1 Jan 2011 recalling defective goods

etc., effect of

If an order under the Fair Trading Act 1987 section 54(2) has

effect immediately before the commencement of Part 10, that

order continues to have effect on and after that commencement

as if it were a recall notice issued under the Australian

Consumer Law (WA) section 122(1).

120. Delegations made before 1 Jan 2011, effect of

(1) If a delegation under the Consumer Affairs Act 1971 section 23

has effect immediately before the commencement of Part 10,

that delegation continues to have effect on and after that

commencement as if it had taken place under section 60.

(2) This section does not limit the Interpretation Act 1984 Part V.

121. Interpretation Act 1984, application of to expiring Acts

To avoid doubt, the provisions of the Interpretation Act 1984

(for example, sections 16(1), 36 and 38) about the repeal of

written laws and the substitution of other written laws for those

so repealed apply to the Consumer Affairs Act 1971, Door to

Door Trading Act 1987 and Fair Trading Act 1987 as if, on the

commencement of Part 10, those Acts were repealed and

re-enacted by this Act.

[Part 10 omitted under the Reprints Act 1984 s. 7(4)(e).]

Fair Trading Act 2010

Acts that override the Australian Consumer Law (WA) Part 3-3 Schedule 1

page 87 [This compilation shows amendments proposed by Bill No. 19-2.]

Schedule 1 — Acts that override the Australian Consumer

Law (WA) Part 3-3

[s. 15]

[Heading inserted: No. 11 of 2013 s. 15.]

The following enactments are specified for the purpose of section 15(1)(a) —

Biosecurity and Agriculture Management Act 2007

Dangerous Goods Safety Act 2004

Firearms Act 1973

Food Act 2008

Health (Miscellaneous Provisions) Act 1911

Medicines and Poisons Act 2014

Mines Safety and Inspection Act 1994

Motor Vehicle Dealers Act 1973

Radiation Safety Act 1975

Road Traffic Act 1974

Road Traffic (Administration) Act 2008.

Road Traffic (Authorisation to Drive) Act 2008.

Road Traffic (Vehicles) Act 2012.

Trade Measurement Act 2006

Veterinary Chemical Control and Animal Feeding Stuffs Act 1976

Work Health and Safety Act 2020

[Schedule 1 amended: No. 24 of 2007 s. 23, 29, 61, 64, 75 and 86 (as

amended: No. 58 of 2010 s. 192(1)-(6) and (8)); No. 8 of 2012 s. 103;

No. 13 of 2014 s. 185; No. 19 of 2016 s. 138; No. 50 of 2016 s. 22;

No. 36 of 2020 s. 354.]

Fair Trading Act 2010

Schedule 2 Registration Acts

page 88 [This compilation shows amendments proposed by Bill No. 19-2.]

Schedule 2 — Registration Acts

[s. 88A]

[Heading inserted: No. 58 of 2010 s. 12.]

The following Acts are specified for the purposes of section 88A —

Charitable Collections Act 1946

Debt Collectors Licensing Act 1964

Employment Agents Act 1976

Land Valuers Licensing Act 1978

Motor Vehicle Dealers Act 1973

Motor Vehicle Repairers Act 2003

Real Estate and Business Agents Act 1978

Settlement Agents Act 1981

[Schedule 2 inserted: No. 58 of 2010 s. 12; amended: No. 11 of 2013

s. 16; No. 21 of 2014 s. 8; No. 25 of 2019 s. 29.]

Fair Trading Act 2010

Compilation table Notes

page 89 [This compilation shows amendments proposed by Bill No. 19-2.]

Notes This is a compilation of the Fair Trading Act 2010 and includes amendments made by

other written laws. For provisions that have come into operation, and for information

about any reprints, see the compilation table. For provisions that have not yet come into

operation see the uncommenced provisions table.

Compilation table

Short title Number

and year

Assent Commencement

Fair Trading Act 2010 57 of 2010 8 Dec 2010 s. 1 and 2: 8 Dec 2010

(see s. 2(a));

Act other than s. 1 and 2:

1 Jan 2011 (see s. 2(b) and

Gazette 24 Dec 2010 p. 6805)

Biosecurity and Agriculture

Management (Repeal and

Consequential Provisions)

Act 2007 s. 23, 29, 61, 64

75 and 86

24 of 2007

(as amended

by No. 58 of

2010

s. 192(2)-(6)

and (8))

12 Oct 2007 1 May 2013 (see s. 2(2) and

Gazette 5 Feb 2013 p. 823)

Acts Amendment (Fair

Trading) Act 2010 Pt. 2

58 of 2010 8 Dec 2010 1 Jul 2011 (see s. 2(c) and

Gazette 7 Jun 2011 p. 2057)

Reprint 1: The Fair Trading Act 2010 as at 3 Feb 2012 (includes amendments listed above

except those in the Biosecurity and Agriculture Management (Repeal and Consequential

Provisions) Act 2007)

Road Traffic Legislation

Amendment Act 2012 Pt. 4

Div. 21

8 of 2012 21 May 2012 27 Apr 2015 (see s. 2(d) and

Gazette 17 Apr 2015 p. 1371)

Fair Trading Amendment

Act 2013

11 of 2013 4 Oct 2013 s. 1 and 2: 4 Oct 2013

(see s. 2(a));

Act other than s. 1 and 2:

30 Nov 2013 (see s. 2(b) and

Gazette 29 Nov 2013 p. 5455)

Medicines and Poisons

Act 2014 s. 185

13 of 2014 2 Jul 2014 30 Jan 2017 (see s. 2(b) and

Gazette 17 Jan 2017 p. 403)

Travel Agents Amendment

and Expiry Act 2014 s. 8

21 of 2014 29 Aug 2014 25 Jan 2017 (see s. 2(c) and

Gazette 24 Jan 2017 p. 741)

Consumer Protection

Legislation Amendment

Act 2014 Pt. 4

23 of 2014 9 Oct 2014 19 Nov 2014 (see s. 2(b) and

Gazette 18 Nov 2014 p. 4315)

Public Health

(Consequential Provisions)

Act 2016 Pt. 3 Div. 12

19 of 2016 25 Jul 2016 24 Jan 2017 (see s. 2(1)(c) and

Gazette 10 Jan 2017 p. 165)

Statutes (Repeals) Act 2016

Pt. 4 Div. 2

50 of 2016 28 Nov 2016 29 Nov 2016 (see s. 2(b))

Reprint 2: The Fair Trading Act 2010 as at 22 Jun 2018 (includes amendments listed

above)

Consumer Protection

Legislation Amendment

Act 2019 Pt. 5

25 of 2019 24 Oct 2019 1 Jan 2020 (see s. 2(b) and

Gazette 24 Dec 2019 p. 4415)

Fair Trading Act 2010

Notes Uncommenced provisions table

page 90 [This compilation shows amendments proposed by Bill No. 19-2.]

Short title Number

and year

Assent Commencement

Fair Trading Amendment

Act 2019

26 of 2019 24 Oct 2019 25 Oct 2019 (see s. 2(b))

Work Health and Safety

Act 2020 Pt. 15 Div. 4

Subdiv. 3

36 of 2020 10 Nov 2020 31 Mar 2022 (see s. 2(1)(c) and

SL 2022/18 cl. 2)

Legal Profession Uniform

Law Application Act 2022

s. 424

9 of 2022 14 Apr 2022 1 Jul 2022 (see s. 2(c) and

SL 2022/113 cl. 2)

Fair Trading Amendment

Bill 2021

Current Bill

No. 19-2

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA

Legislation website.

Short title Number

and year

Assent Commencement

Biosecurity and Agriculture

Management (Repeal and

Consequential Provisions)

Act 2007 s. 83

24 of 2007

(as amended

by No. 58 of

2010

s. 192(7))

12 Oct 2007 To be proclaimed (see s. 2(2))

Public Health

(Consequential Provisions)

Act 2016 Pt. 5 Div. 7

19 of 2016 25 Jul 2016 To be proclaimed (see s. 2(1)(c))

Other notes

1 The provisions in this Act amending these Acts have been omitted under the

Reprints Act 1984 s. 7(4)(e).

2 Section 36 as altered by the Fair Trading (Permitted Calling Hours)

Regulations 2014 r. 4 and 5 no longer has effect in relation to the Australian

Consumer Law (WA) Text.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 1

page 91 [This compilation shows amendments proposed by Bill No. 19-2.]

Note — Australian Consumer Law (WA) text

This note is not part of the Act. Section 19(1) of the Act provides that

the Australian Consumer Law text that, under section 19(2) of the Act,

applies as the Australian Consumer Law (WA) consists of:

(a) Schedule 2 to the Competition and Consumer Act 2010

(Commonwealth) (the Cwth Act), as in force on 26 October 2018

(as modified by section 36 of the Act); and

(b) the regulations made under section 139G the Cwth Act, as those

regulations are in force from time to time.

Regulations may also be made under section 116(3) of the Act that alter

the operation of certain provisions of the Australian Consumer Law

(WA).

This note shows the version of the text of Schedule 2 to the Cwth Act,

as in force on 26 October 2018 (as modified by section 36 of the Act and

regulations made under section 116(3) of the Act) that, together with the

regulations made under section 139G of the Cwth Act, applies as the

Australian Consumer Law (WA).

The text of the regulations made under section 139G of the Cwth Act

is not reproduced. The regulations can be accessed at

www.comlaw.gov.au.]

Chapter 1 — Introduction

1. Application of this Schedule

This Schedule applies to the extent provided by:

(a) Part XI of the Competition and Consumer Act; or

(b) an application law.

2. Definitions

(1) In this Schedule:

ABN has the meaning given by section 41 of the A New

Tax System (Australian Business Number) Act 1999.

acceptable quality: see sections 54(2) to (7).

ACN has the meaning given by section 9 of the

Corporations Act 2001.

acquire includes:

(a) in relation to goods — acquire by way of purchase,

exchange or taking on lease, on hire or on

hire-purchase; and

(b) in relation to services — accept.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 92 [This compilation shows amendments proposed by Bill No. 19-2.]

Note: Section 5 deals with when receipt of a donation is an

acquisition.

adverse publicity order: see section 247(2).

affected person, in relation to goods, means:

(a) a consumer who acquires the goods; or

(b) a person who acquires the goods from the consumer

(other than for the purpose of re-supply); or

under the consumer.

agreement document: see section 78(2).

annual turnover, of a body corporate during a 12-month

period, means the sum of the values of all the supplies that

the body corporate, and any body corporate related to the

body corporate, have made, or are likely to make, during

the 12-month period, other than:

(a) supplies made from any of those bodies corporate to

any other of those bodies corporate; or

(b) supplies that are input taxed; or

taxable supplies under section 72-5 of the A New Tax

System (Goods and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an

enterprise that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the

A New Tax System (Goods and Services Tax) Act 1999

have the same meaning as in that Act.

applicable industry code has the meaning given by

section 51ACA(1) of the Competition and Consumer Act.

application law has the same meaning as in section 140 of

the Competition and Consumer Act.

article includes a token, card or document.

ASIC means the Australian Securities and Investments

Commission.

assert a right to payment: see section 10(1).

associate regulator:

(a) for the purposes of the application of this Schedule

as a law of the Commonwealth — means a body that

is, for the purposes of the application of this

Schedule as a law of a State or a Territory, the

regulator within the meaning of the application law

of the State or Territory; or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 93 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) for the purposes of the application of this Schedule

as a law of a State or a Territory — means:

(i) the Commission; or

(ii) a body that is, for the purposes of the

application of this Schedule as a law of

another State or a Territory, the regulator

within the meaning of the application law of

that other State or Territory.

authority, in relation to a State or a Territory (including an

external Territory), means:

(a) a body corporate established for a purpose of the

State or the Territory by or under a law of the State

or Territory; or

(b) an incorporated company in which the State or the

Territory, or a body corporate referred to in

paragraph (a), has a controlling interest.

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the

Commonwealth by or under a law of the

Commonwealth or a law of a Territory; or

(b) an incorporated company in which the

Commonwealth, or a body corporate referred to in

paragraph (a), has a controlling interest.

banker has the same meaning as in section 4(1) of the

Competition and Consumer Act.

ban period for an interim ban: see section 111(1).

business includes a business not carried on for profit.

business day, in relation to an unsolicited consumer

agreement, means a day that is not:

(a) a Saturday or Sunday; or

(b) a public holiday in the place where the agreement

was made.

business or professional relationship includes a

relationship between employer and employee, or a similar

relationship.

call on, in relation to negotiating an unsolicited consumer

agreement, does not include call by telephone.

Commission has the same meaning as in section 4(1) of the

Competition and Consumer Act.

Commonwealth mandatory standard, in relation to goods,

means a mandatory standard in respect of the goods

imposed by a law of the Commonwealth.

Commonwealth Minister means the Minister who

administers Part XI of the Competition and Consumer Act.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 94 [This compilation shows amendments proposed by Bill No. 19-2.]

Competition and Consumer Act means the Competition

and Consumer Act 2010.

consumer: see section 3.

consumer contract: see section 23(3).

consumer goods means goods that are intended to be used,

or are of a kind likely to be used, for personal, domestic or

household use or consumption, and includes any such

goods that have become fixtures since the time they were

supplied if:

(a) a recall notice for the goods has been issued; or

(b) a person has voluntarily taken action to recall the

goods.

continuing credit contract: see section 14(1).

contravening conduct: see section 239(1)(a)(i).

court, in relation to a matter, means any court having

jurisdiction in the matter.

covering includes a stopper, glass, bottle, vessel, box,

capsule, case, frame or wrapper.

credit card: see section 39(5).

credit provider means a person providing, or proposing to

provide, in the course of a business carried on by the

person, credit to consumers in relation to the acquisition of

goods or services.

dealer: see section 71.

debit card: see section 39(6).

declared term: see section 239(1)(a)(ii).

defective goods action means an action under

section 138, 139, 140 or 141, and includes such an action

because of section 138(3) or 145.

disclosed purpose: see section 55(2).

displayed price: see sections 47(2) to (5).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols

or perforations having a meaning for persons

qualified to interpret them; and

be reproduced with or without the aid of anything

else; and

(d) a map, plan, drawing or photograph.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 95 [This compilation shows amendments proposed by Bill No. 19-2.]

egg has the meaning given by subsection 137A(3).

enforcement proceeding means:

(a) a proceeding for an offence against Chapter 4; or

(b) a proceeding instituted under Chapter 5 (other than

under sections 237 and 239).

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.

express warranty, in relation to goods, means an

undertaking, assertion or representation:

(a) that relates to:

(i) the quality, state, condition, performance or

characteristics of the goods; or

(ii) the provision of services that are or may at

any time be required for the goods; or

(iii) the supply of parts that are or may at any time

be required for the goods; or

(iv) the future availability of identical goods, or of

goods constituting or forming part of a set of

which the goods, in relation to which the

undertaking, assertion or representation is

given or made, form part; and

(b) that is given or made in connection with the supply

of the goods, or in connection with the promotion by

any means of the supply or use of the goods; and

acquire the goods.

financial product has the meaning given by

section 12BAA of the Australian Securities and

Investments Commission Act 2001.

financial service has the meaning given by section 12BAB

of the Australian Securities and Investments Commission

Act 2001.

free item includes a free service.

free range egg has the meaning given by

subsection 137A(4).

gift card: see section 99A.

goods includes:

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

attached to land or not; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 96 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) gas and electricity; and

(e) computer software; and

(f) second-hand goods; and

(g) any component part of, or accessory to, goods.

grown: see section 255(7).

GST has the meaning given by section 195-1 of the A New

Tax System (Goods and Services Tax) Act 1999.

industry code has the meaning given by section 51ACA of

the Competition and Consumer Act.

information provider: see sections 19(5) and (6).

information standard: see sections 134(1) and 135(1).

inner container includes any container into which goods

are packed, other than a shipping or airline container, pallet

or other similar article.

interest, in relation to land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or

part of a building erected on the land, arising by

virtue of the holding of shares, or by virtue of a

contract to purchase shares, in an incorporated

company that owns the land or building; or

with, the land.

interim ban: see sections 109(1) and (2).

involved: a person is involved, in a contravention of a

provision of this Schedule 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

knowingly concerned in, or party to, the

contravention; or

(d) has conspired with others to effect the contravention.

joint liability proceedings means proceedings relating to

the joint and several liability under section 278 of a linked

credit provider and a supplier of goods or services.

label includes a band or ticket.

lay-by agreement: see section 96(3).

linked credit contract: see section 278(2).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 97 [This compilation shows amendments proposed by Bill No. 19-2.]

linked credit provider, in relation to a supplier of goods or

services, means a credit provider:

(a) with whom the supplier has a contract, arrangement

or understanding relating to:

(i) the supply to the supplier of goods in which

the supplier deals; or

(ii) the business carried on by the supplier of

supplying goods or services; or

(iii) the provision to persons to whom goods or

services are supplied by the supplier of credit

in respect of payment for those goods or

services; or

(b) to whom the supplier, by arrangement with the credit

provider, regularly refers persons for the purpose of

obtaining credit; or

offers for credit are, by arrangement with the credit

provider, made available to persons by the supplier;

(d) with whom the supplier has a contract, arrangement

or understanding under which contracts, applications

or offers for credit from the credit provider may be

signed by persons at premises of the supplier.

loan contract means a contract under which a person in the

course of a business carried on by that person provides or

agrees to provide, whether on one or more occasions, credit

to a consumer in one or more of the following ways:

(a) by paying an amount to, or in accordance with the

instructions of, the consumer;

(b) by applying an amount in satisfaction or reduction of

an amount owed to the person by the consumer;

money owed to the person by the consumer is

payable;

(d) by deferring an obligation of the consumer to pay an

amount to the person;

(e) by taking from the consumer a bill of exchange or

other negotiable instrument on which the consumer

(whether alone or with another person or other

persons) is liable as drawer, acceptor or endorser.

major failure: see sections 260 and 268.

mandatory standard, in relation to goods, means a

standard:

(a) for the goods or anything relating to the goods; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 98 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) that, under a law of the Commonwealth, a State or a

Territory, must be complied with when the goods are

supplied by their manufacturer, being a law creating

an offence or liability if there is such

non-compliance;

but does not include a standard which may be complied

with by meeting a higher standard.

manufacturer: see section 7.

market has the same meaning as in section 4E of the

Competition and Consumer Act.

materials, in relation to goods, means:

(a) if the goods are unmanufactured raw products —

those products; and

(b) if the goods are manufactured goods — all matter or

substances used or consumed in the manufacture of

the goods (other than matter or substances that are

treated as overheads); and

goods are packed.

mixed supply: see section 3(11).

National Credit Code has the meaning given by

section 5(1) of the National Consumer Credit Protection

Act 2009.

negotiated by telephone: see section 78(3).

negotiation: see section 72.

new participant: see section 45(2).

non-linked credit contract: see section 287(5).

non-party consumer means:

(a) in relation to conduct referred to in

section 239(1)(a)(i) — a person who is not, or has

not been, a party to an enforcement proceeding in

relation to the conduct; and

(b) in relation to a term of a contract referred to in

section 239(1)(a)(ii) — a person who is not, or has

not been, a party to an enforcement proceeding in

relation to the term.

participant, in a pyramid scheme, means a person who

participates in the scheme.

participate, in a pyramid scheme: see section 44(3).

participation payment: see section 45(1)(a).

permanent ban: see sections 114(1) and (2).

post-supply fee: see section 99D(2).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 99 [This compilation shows amendments proposed by Bill No. 19-2.]

premises means:

(a) an area of land or any other place (whether or not it

is enclosed or built on); or

(b) a building or other structure; or

(d) a part of any such premises.

price, of goods or services, means:

(a) the amount paid or payable (including any charge of

any description) for their acquisition; or

(b) if such an amount is not specified because the

acquisition is part only of a transaction for which a

total amount is paid or payable:

(i) the lowest amount (including any charge of

any description) for which the goods or

services could reasonably have been acquired

from the supplier at the time of the transaction

or, if not from the supplier, from another

supplier; or

(ii) if they could not reasonably have been

acquired separately from another supplier —

their value at the time of the transaction.

prior negotiations or arrangements, in relation to the

acquisition of goods by a consumer, means negotiations or

arrangements:

(a) that were conducted or made with the consumer by

another person in the course of a business carried on

by the other person; and

(b) that induced the consumer to acquire the goods, or

otherwise promoted the acquisition of the goods by

the consumer.

product related service means a service for or relating to:

(a) the installation of consumer goods of a particular

kind; or

(b) the maintenance, repair or cleaning of consumer

goods of a particular kind; or

(d) the delivery of consumer goods of a particular kind;

and, without limiting paragraphs (a) to (d), includes any

other service that relates to the supply of consumer goods

of that kind.

proof of transaction: see section 100(4).

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 100 [This compilation shows amendments proposed by Bill No. 19-2.]

publish, in relation to an advertisement, means include in a

publication intended for sale or public distribution

(whether to the public generally or to a restricted class or

number of persons) or for public display (including in an

electronic form).

pyramid scheme: see section 45(1).

recall notice: see section 122(1).

recovery period: see section 41(4).

recruitment payment: see section 45(1)(b).

regulations means regulations made under section 139G of

the Competition and Consumer Act.

regulator:

(a) for the purposes of the application of this Schedule

as a law of the Commonwealth — means the

Commission; or

(b) for the purposes of the application of this Schedule

as a law of a State or a Territory — has the meaning

given by the application law of the State or

Territory.

rejection period: see section 262(2).

related, in relation to a body corporate: see section 6.

related contract or instrument: see section 83(2).

rely on, in relation to a term of a consumer contract or

small business contract, includes the following:

(a) attempt to enforce the term;

(b) attempt to exercise a right conferred, or purportedly

conferred, by the term;

purportedly conferred, by the term.

responsible Minister means:

(a) the Commonwealth Minister; or

(b) the Minister of a State who administers the

application law of the State; or

application law of the Territory.

safety defect, in relation to goods: see section 9.

safety standard: see sections 104(1) and 105(1).

sale by auction, in relation to the supply of goods by a

person, means a sale by auction that is conducted by an

agent of the person (whether the agent acts in person or by

electronic means).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 101 [This compilation shows amendments proposed by Bill No. 19-2.]

send includes deliver, and sent and sender have

corresponding meanings.

serious injury or illness means an acute physical injury or

illness that requires medical or surgical treatment by, or

under the supervision of, a medical practitioner or a nurse

(whether or not in a hospital, clinic or similar place), but

does not include:

(a) an ailment, disorder, defect or morbid condition

(whether of sudden onset or gradual development);

(b) the recurrence, or aggravation, of such an ailment,

disorder, defect or morbid condition.

services includes:

(a) any rights (including rights in relation to, and

interests in, real or personal property), benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred under:

(i) a contract for or in relation to the performance

of work (including work of a professional

nature), whether with or without the supply of

goods; or

(ii) a contract for or in relation to the provision of,

or the use or enjoyment of facilities for,

amusement, entertainment, recreation or

instruction; or

(iii) a contract for or in relation to the conferring

of rights, benefits or privileges for which

remuneration is payable in the form of a

royalty, tribute, levy or similar exaction; or

(iv) a contract of insurance; or

(v) a contract between a banker and a customer of

the banker entered into in the course of the

carrying on by the banker of the business of

banking; or

(vi) any contract for or in relation to the lending of

money;

but does not include rights or benefits being the supply of

goods or the performance of work under a contract of

service.

share includes stock.

ship has the meaning given by section 3(1) of the

Admiralty Act 1988.

Fair Trading Act 2010

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Chapter 1 Introduction

s. 2

page 102 [This compilation shows amendments proposed by Bill No. 19-2.]

single price: see section 48(7).

small business contract: see subsection 23(4).

standard form contract has a meaning affected by

section 27.

substantially transformed, in relation to goods: see

section 255(2).

substantiation notice means a notice under section 219.

substantiation notice compliance period: see

section 221(2).

supply, when used as a verb, includes:

(a) in relation to goods — supply (including re-supply)

by way of sale, exchange, lease, hire or

hire-purchase; and

(b) in relation to services — provide, grant or confer;

and, when used as a noun, has a corresponding meaning,

and supplied and supplier have corresponding meanings.

Note: Section 5 deals with when a donation is a supply.

supply of limited title: see section 51(2).

telecommunications service: see section 65(2).

termination charge: see section 97(2).

termination period, in relation to an unsolicited consumer

agreement, means the period within which the consumer

under the agreement is, under section 82 or under the

agreement, entitled to terminate the agreement.

tied continuing credit contract means a continuing credit

contract under which a credit provider provides credit in

respect of the payment by a consumer for goods or services

supplied by a supplier in relation to whom the credit

provider is a linked credit provider.

tied loan contract means a loan contract entered into

between a credit provider and a consumer where:

(a) the credit provider knows, or ought reasonably to

know, that the consumer enters into the loan contract

wholly or partly for the purposes of payment for

goods or services supplied by a supplier; and

(b) at the time the loan contract is entered into the credit

provider is a linked credit provider of the supplier.

trade or commerce means:

(a) trade or commerce within Australia; or

(b) trade or commerce between Australia and places

outside Australia;

and includes any business or professional activity (whether

or not carried on for profit).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 103 [This compilation shows amendments proposed by Bill No. 19-2.]

transparent:

(a) in relation to a document — means:

(i) expressed in reasonably plain language; and

(ii) legible; and

(iii) presented clearly; and

(b) in relation to a term of a consumer contract or small

business contract — see section 24(3).

unfair, in relation to a term of a consumer contract or

small business contract: see section 24(1).

unsolicited consumer agreement: see section 69.

unsolicited goods means goods sent to a person without

any request made by the person or on his or her behalf.

unsolicited services means:

(a) services supplied to a person; or

(b) services purported to have been supplied to a person

which have not been supplied;

without any request made by the person or on his or her

behalf.

upfront price: see section 26(2).

warranty against defects: see section 102(3).

(2) In this Schedule:

(a) a reference to engaging in conduct is a reference to

doing or refusing to do any act, including:

(i) the making of, or the giving effect to a

provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a

provision of, an understanding; or

(iii) the requiring of the giving of, or the giving of,

a covenant; and

(b) a reference to conduct, when that expression is used

as a noun otherwise than as mentioned in

paragraph (a), is a reference to the doing of or the

refusing to do any act, including:

(i) the making of, or the giving effect to a

provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a

provision of, an understanding; or

(iii) the requiring of the giving of, or the giving of,

a covenant; and

reference to:

Fair Trading Act 2010

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Chapter 1 Introduction

s. 3

page 104 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) refraining (otherwise than inadvertently) from

doing that act; or

(ii) making it known that that act will not be done;

and

(d) a reference to a person offering to do an act, or to do

an act on a particular condition, includes a reference

to the person making it known that the person will

accept applications, offers or proposals for the

person to do that act or to do that act on that

condition, as the case may be.

3. Meaning of consumer

Acquiring goods as a consumer

(1) A person is taken to have acquired particular goods as a

consumer if, and only if:

(a) the amount paid or payable for the goods, as worked

out under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the

purposes of this paragraph — that greater

amount; or

(b) the goods were of a kind ordinarily acquired for

personal, domestic or household use or consumption;

for use principally in the transport of goods on

public roads.

(2) However, subsection (1) does not apply if the person

acquired the goods, or held himself or herself out as

acquiring the goods:

(a) for the following purpose:

(i) for goods other than gift cards—for the

purpose of re-supply;

(ii) for gift cards—for the purpose of re-supply

in trade or commerce; or

(b) for the purpose of using them up or transforming

them, in trade or commerce:

(i) in the course of a process of production or

manufacture; or

(ii) in the course of repairing or treating other

goods or fixtures on land.

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Acquiring services as a consumer

(3) A person is taken to have acquired particular services as a

consumer if, and only if:

(a) the amount paid or payable for the services, as

worked out under subsections (4) to (9), did not

exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the

purposes of subsection (1)(a) — that greater

amount; or

(b) the services were of a kind ordinarily acquired for

personal, domestic or household use or consumption.

Amounts paid or payable for purchases

(4) For the purposes of subsection (1) or (3), the amount paid

or payable for goods or services purchased by a person is

taken to be the price paid or payable by the person for the

goods or services, unless subsection (5) applies.

(5) For the purposes of subsection (1) or (3), if a person

purchased goods or services by a mixed supply and a

specified price was not allocated to the goods or services in

the contract under which they were purchased, the amount

paid or payable for goods or services is taken to be:

(a) if, at the time of the acquisition, the person could

have purchased from the supplier the goods or

services other than by a mixed supply — the price at

which they could have been purchased from the

supplier; or

(b) if:

(i) paragraph (a) does not apply; but

(ii) at the time of the acquisition, goods or

services of the kind acquired could have

been purchased from another supplier other

than by a mixed supply;

the lowest price at which the person could, at that

time, reasonably have purchased goods or services

of that kind from another supplier; or

the kind acquired could not have been purchased

from any supplier except by a mixed supply — the

value of the goods or services at that time.

Amounts paid or payable for other acquisitions

(6) For the purposes of subsection (1) or (3), the amount paid

or payable for goods or services acquired by a person other

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than by way of purchase is taken to be the price at which,

at the time of the acquisition, the person could have

purchased the goods or services from the supplier, unless

subsection (7) or (8) applies.

(7) For the purposes of subsection (1) or (3), if:

(a) goods or services acquired by a person other than by

way of purchase could not, at the time of the

acquisition, have been purchased from the supplier,

or could have been purchased only by a mixed

supply; but

(b) at that time, goods or services of the kind acquired

could have been purchased from another supplier

other than by a mixed supply;

the amount paid or payable for the goods or services is

taken to be the lowest price at which the person could, at

that time, reasonably have purchased goods or services of

that kind from another supplier.

(8) For the purposes of subsection (1) or (3), if goods or

services acquired by a person other than by way of

purchase could not, at the time of the acquisition, have

been purchased from any supplier other than by a mixed

supply, the amount paid or payable for the goods or

services is taken to be the value of the goods or services at

that time.

Amounts paid or payable for obtaining credit

(9) If:

(a) a person obtains credit in connection with the

acquisition of goods or services by him or her; and

(b) the amount paid or payable by him or her for the

goods or services is increased because he or she so

obtains credit;

obtaining the credit is taken for the purposes of

subsection (3) to be the acquisition of a service, and the

amount paid or payable by him or her for the service of

being provided with the credit is taken to include the

amount of the increase.

Presumption that persons are consumers

(10) If it is alleged in any proceeding under this Schedule, or in

any other proceeding in respect of a matter arising under

this Schedule, that a person was a consumer in relation to

particular goods or services, it is presumed, unless the

contrary is established, that the person was a consumer in

relation to those goods or services.

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page 107 [This compilation shows amendments proposed by Bill No. 19-2.]

Mixed supplies

(11) A purchase or other acquisition of goods or services is

made by a mixed supply if the goods or services are

purchased or acquired together with other property or

services, or together with both other property and other

services.

Supplies to consumers

(12) In this Schedule, a reference to a supply of goods or

services to a consumer is a reference to a supply of goods

or services to a person who is taken to have acquired them

as a consumer.

4. Misleading representations with respect to future matters

(1) If:

(a) a person makes a representation with respect to any

future matter (including the doing of, or the refusing

to do, any act); and

(b) the person does not have reasonable grounds for

making the representation;

the representation is taken, for the purposes of this

Schedule, to be misleading.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation made with respect

to a future matter by:

(a) a party to the proceeding; or

(b) any other person;

the party or other person is taken not to have had

reasonable grounds for making the representation, unless

evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to

the contrary is adduced, the person who made the

representation is taken to have had reasonable

grounds for making the representation; or

(b) have the effect of placing on any person an onus of

proving that the person who made the representation

had reasonable grounds for making the

representation.

(4) Subsection (1) does not limit by implication the meaning of

a reference in this Schedule to:

(a) a misleading representation; or

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(b) a representation that is misleading in a material

particular; or

mislead;

and, in particular, does not imply that a representation that

a person makes with respect to any future matter is not

misleading merely because the person has reasonable

grounds for making the representation.

5. When donations are treated as supplies or acquisitions

(1) For the purposes of this Schedule, other than Parts 3-3, 3-4,

4-3 and 4-4:

(a) a donation of goods or services is not treated as a

supply of the goods or services unless the donation is

for promotional purposes; and

(b) receipt of a donation of goods or services is not

treated as an acquisition of the goods or services

unless the donation is for promotional purposes.

(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:

(a) any donation of goods or services is treated as a

supply of the goods or services; and

(b) receipt of any donation of goods or services is

treated as an acquisition of the goods or services.

6. Related bodies corporate

(1) A body corporate is taken to be related to another body

corporate if the bodies corporate would, under

section 4A(5) of the Competition and Consumer Act, be

deemed to be related to each other.

(2) In proceedings under this Schedule, it is presumed, unless

the contrary is established, that bodies corporate are not, or

were not at a particular time, related to each other.

7. Meaning of manufacturer

(1) A manufacturer includes the following:

(a) a person who grows, extracts, produces, processes or

assembles goods;

(b) a person who holds himself or herself out to the

public as the manufacturer of goods;

person, a name by which the person carries on

business or a brand or mark of the person to be

applied to goods supplied by the person;

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(d) a person (the first person) who causes or permits

another person, in connection with:

(i) the supply or possible supply of goods by

that other person; or

(ii) the promotion by that other person by any

means of the supply or use of goods;

to hold out the first person to the public as the

manufacturer of the goods;

(e) a person who imports goods into Australia if:

(i) the person is not the manufacturer of the

goods; and

(ii) at the time of the importation, the

manufacturer of the goods does not have a

place of business in Australia.

(2) For the purposes of subsection (1)(c):

(a) a name, brand or mark is taken to be applied to

goods if:

(i) it is woven in, impressed on, worked into or

annexed or affixed to the goods; or

(ii) it is applied to a covering, label, reel or thing

in or with which the goods are supplied; and

(b) if the name of a person, a name by which a person

carries on business or a brand or mark of a person is

applied to goods, it is presumed, unless the contrary

is established, that the person caused or permitted

the name, brand or mark to be applied to the goods.

(3) If goods are imported into Australia on behalf of a person,

the person is taken, for the purposes of paragraph (1)(e), to

have imported the goods into Australia.

8. Goods affixed to land or premises

For the purposes of this Schedule, goods are taken to be

supplied to a consumer even if they are affixed to land or

premises at the time of the supply.

9. Meaning of safety defect in relation to goods

(1) For the purposes of this Schedule, goods have a safety

defect if their safety is not such as persons generally are

entitled to expect.

(2) In determining the extent of the safety of goods, regard is

to be given to all relevant circumstances, including:

(a) the manner in which, and the purposes for which,

they have been marketed; and

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(b) their packaging; and

(d) any instructions for, or warnings with respect to,

doing, or refraining from doing, anything with or in

relation to them; and

(e) what might reasonably be expected to be done with

or in relation to them; and

(f) the time when they were supplied by their

manufacturer.

(3) An inference that goods have a safety defect is not to be

made only because of the fact that, after they were supplied

by their manufacturer, safer goods of the same kind were

supplied.

(4) An inference that goods have a safety defect is not to be

made only because:

(a) there was compliance with a Commonwealth

mandatory standard for them; and

(b) that standard was not the safest possible standard

having regard to the latest state of scientific or

technical knowledge when they were supplied by

their manufacturer.

10. Asserting a right to payment

(1) A person is taken to assert a right to payment from another

person if the person:

(a) makes a demand for the payment or asserts a present

or prospective right to the payment; or

(b) threatens to bring any legal proceedings with a view

to obtaining the payment; or

person on a list of defaulters or debtors, or threatens

to do so, with a view to obtaining the payment; or

(d) invokes or causes to be invoked any other collection

procedure, or threatens to do so, with a view to

obtaining the payment; or

(e) sends any invoice or other document that:

(i) states the amount of the payment; or

(ii) sets out the price of unsolicited goods or

unsolicited services; or

(iii) sets out the charge for placing, in a

publication, an entry or advertisement;

and does not contain a statement, to the effect that

the document is not an assertion of a right to a

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payment, that complies with any requirements

prescribed by the regulations.

(2) For the purposes of this section, an invoice or other

document purporting to have been sent by or on behalf of a

person is taken to have been sent by that person unless the

contrary is established.

11. References to acquisition, supply and re-supply

In this Schedule:

(a) a reference to the acquisition of goods includes a

reference to the acquisition of property in, or rights

in relation to, goods pursuant to a supply of the

goods; and

(b) a reference to the supply or acquisition of goods or

services includes a reference to agreeing to supply or

acquire goods or services; and

includes a reference to the supply or acquisition of

goods together with other property or services, or

both; and

(d) 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; and

(e) a reference to the re-supply of goods acquired from a

person includes a reference to:

(i) a supply of the goods to another person in an

altered form or condition; and

(ii) a supply to another person of goods in which

the first-mentioned goods have been

incorporated; and

(f) a reference to the re-supply of services (the original

services) acquired from a person (the original

supplier) includes a reference to:

(i) a supply of the original services to another

person in an altered form or condition; and

(ii) a supply to another person of other services

that are substantially similar to the original

services, and could not have been supplied if

the original services had not been acquired

by the person who acquired them from the

original supplier.

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page 112 [This compilation shows amendments proposed by Bill No. 19-2.]

12. Application of Schedule in relation to leases and licences of land

and buildings

In this Schedule:

(a) a reference to a contract includes a reference to a

lease of, or a licence in respect of, land or a building

or part of a building (despite the express references

in this Schedule to such leases or licences); and

(b) a reference to making or entering into a contract, in

relation to such a lease or licence, is a reference to

granting or taking the lease or licence; and

such a lease or licence, includes a reference to any

person bound by, or entitled to the benefit of, any

provision contained in the lease or licence.

13. Loss or damage to include injury

In this Schedule:

(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.

14. Meaning of continuing credit contract

(1) If:

(a) a person (the creditor), in the course of a business

carried on by the creditor, agrees with a consumer to

provide credit to the consumer in relation to:

(i) payment for goods or services; or

(ii) cash supplied by the creditor to the

consumer from time to time; or

(iii) payment by the creditor to another person in

relation to goods or services, or cash,

supplied by that other person to the

consumer from time to time; and

(b) the creditor:

(i) has an agreement, arrangement or

understanding (the credit agreement) with

the consumer in relation to the provision of

the credit; or

(ii) is engaged in a course of dealing (the credit

dealing) with the consumer in relation to the

provision of the credit; and

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page 113 [This compilation shows amendments proposed by Bill No. 19-2.]

under the credit agreement or credit dealing are, or

are to be, calculated on the basis that:

(i) all amounts owing; and

(ii) all payments made;

by the consumer under, or in respect of, the credit

agreement or credit dealing are entered in one or

more accounts kept for the purpose of that

agreement or dealing;

the credit agreement or credit dealing is taken, for the

purposes of this Schedule, to be a continuing credit

contract.

(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the

purposes of this section, to have provided credit to the

consumer in relation to any goods or services, or cash,

supplied by another person to the consumer to the extent of

any payments made, or to be made, by the creditor to that

other person.

15. Contraventions of this Schedule

Conduct is not taken, for the purposes of this Schedule, to

contravene a provision of this Schedule merely because of

the application of:

(a) section 23(1); or

(b) a provision of Division 1 of Part 3-2 (other than

section 66(2)); or

16. Severability

(1) If the making of a contract after the commencement of this

section contravenes this Schedule because the contract

includes a particular provision, nothing in this Schedule

affects the validity or enforceability of the contract

otherwise than in relation to that provision, so far as that

provision is severable.

(2) This section has effect subject to any order made under

Division 4 of Part 5-2.

17. References to provisions in this Schedule

In this Schedule, a reference to a provision is a reference to

a provision of this Schedule, unless the contrary intention

appears.

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page 114 [This compilation shows amendments proposed by Bill No. 19-2.]

Chapter 2 — General protections

Part 2-1 — Misleading or deceptive conduct

18. Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in

conduct that is misleading or deceptive or is likely to

mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits

by implication subsection (1).

Note: For rules relating to representations as to the country of

origin of goods, see Part 5-3.

19. Application of this Part to information providers

(1) This Part does not apply to a publication of matter by an

information provider if:

(a) in any case — the information provider made the

publication in the course of carrying on a business of

providing information; or

(b) if the information provider is the Australian

Broadcasting Corporation, the Special Broadcasting

Service Corporation or the holder of a licence

granted under the Broadcasting Services Act 1992 —

the publication was by way of a radio or television

broadcast by the information provider.

(2) Subsection (1) does not apply to a publication of an

advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the

promotion by any means of the supply or use of, goods or

services (the publicised goods or services), if:

(a) the publicised goods or services were goods or

services of a kind supplied by the information

provider or, if the information provider is a body

corporate, by a body corporate that is related to the

information provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who supplies goods or services of the same

kind as the publicised goods or services; or

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

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that supplies goods or services of the same kind as

the publicised goods or services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant,

of, or the promotion by any means of the sale or grant of,

interests in land (the publicised interests in land), if:

(a) the publicised interests in land were interests of a

kind sold or granted by the information provider or,

if the information provider is a body corporate, by a

body corporate that is related to the information

provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who sells or grants interests of the same kind

as the publicised interests in land; or

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that sells or grants interests of the same kind as the

publicised interests in land.

(5) An information provider is a person who carries on a

business of providing information.

(6) Without limiting subsection (5), each of the following is an

information provider:

(a) the holder of a licence granted under the

Broadcasting Services Act 1992;

(b) a person who is the provider of a broadcasting

service under a class licence under that Act;

[(c) deleted.]

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

Part 2-2 — Unconscionable conduct

20. Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in

conduct that is unconscionable, within the meaning of the

unwritten law from time to time.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) This section does not apply to conduct that is prohibited by

section 21.

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21. Unconscionable conduct in connection with goods or services

(1) A person must not, in trade or commerce, in connection

with:

(a) the supply or possible supply of goods or services to

a person; or

(b) the acquisition or possible acquisition of goods or

services from a person;

engage in conduct that is, in all the circumstances,

unconscionable.

(2) This section does not apply to conduct that is engaged in

only because the person engaging in the conduct:

(a) institutes legal proceedings in relation to the supply

or possible supply, or in relation to the acquisition or

possible acquisition; or

(b) refers to arbitration a dispute or claim in relation to

the supply or possible supply, or in relation to the

acquisition or possible acquisition.

(3) For the purpose of determining whether a person has

contravened subsection (1):

(a) the court must not have regard to any circumstances

that were not reasonably foreseeable at the time of

the alleged contravention; and

(b) the court may have regard to conduct engaged in, or

circumstances existing, before the commencement of

this section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law

relating to unconscionable conduct; and

(b) this section is capable of applying to a system of

conduct or pattern of behaviour, whether or not a

particular individual is identified as having been

disadvantaged by the conduct or behaviour; and

relates is unconscionable, a court’s consideration of

the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which

the contract is carried out;

and is not limited to consideration of the

circumstances relating to formation of the contract.

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page 117 [This compilation shows amendments proposed by Bill No. 19-2.]

22. Matters the court may have regard to for the purposes of

section 21

(1) Without limiting the matters to which the court may have

regard for the purpose of determining whether a person

(the supplier) has contravened section 21 in connection

with the supply or possible supply of goods or services to a

person (the customer), the court may have regard to:

(a) the relative strengths of the bargaining positions of

the supplier and the customer; and

(b) whether, as a result of conduct engaged in by the

supplier, the customer was required to comply with

conditions that were not reasonably necessary for the

protection of the legitimate interests of the supplier;

and

documents relating to the supply or possible supply

of the goods or services; and

(d) whether any undue influence or pressure was exerted

on, or any unfair tactics were used against, the

customer or a person acting on behalf of the

customer by the supplier or a person acting on behalf

of the supplier in relation to the supply or possible

supply of the goods or services; and

(e) the amount for which, and the circumstances under

which, the customer could have acquired identical or

equivalent goods or services from a person other

than the supplier; and

(f) the extent to which the supplier’s conduct towards

the customer was consistent with the supplier’s

conduct in similar transactions between the supplier

and other like customers; and

(g) the requirements of any applicable industry code;

and

(h) the requirements of any other industry code, if the

customer acted on the reasonable belief that the

supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed

to disclose to the customer:

(i) any intended conduct of the supplier that

might affect the interests of the customer;

and

(ii) any risks to the customer arising from the

supplier’s intended conduct (being risks that

the supplier should have foreseen would not

be apparent to the customer); and

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(j) if there is a contract between the supplier and the

customer for the supply of the goods or services:

(i) the extent to which the supplier was willing

to negotiate the terms and conditions of the

contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer

in complying with the terms and conditions

of the contract; and

(iv) any conduct that the supplier or the customer

engaged in, in connection with their

commercial relationship, after they entered

into the contract; and

(k) without limiting paragraph (j), whether the supplier

has a contractual right to vary unilaterally a term or

condition of a contract between the supplier and the

customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer

acted in good faith.

(2) Without limiting the matters to which the court may have

regard for the purpose of determining whether a person

(the acquirer) has contravened section 21 in connection

with the acquisition or possible acquisition of goods or

services from a person (the supplier), the court may have

regard to:

(a) the relative strengths of the bargaining positions of

the acquirer and the supplier; and

(b) whether, as a result of conduct engaged in by the

acquirer, the supplier was required to comply with

conditions that were not reasonably necessary for the

protection of the legitimate interests of the acquirer;

and

documents relating to the acquisition or possible

acquisition of the goods or services; and

(d) whether any undue influence or pressure was exerted

on, or any unfair tactics were used against, the

supplier or a person acting on behalf of the supplier

by the acquirer or a person acting on behalf of the

acquirer in relation to the acquisition or possible

acquisition of the goods or services; and

(e) the amount for which, and the circumstances in

which, the supplier could have supplied identical or

equivalent goods or services to a person other than

the acquirer; and

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page 119 [This compilation shows amendments proposed by Bill No. 19-2.]

(f) the extent to which the acquirer’s conduct towards

the supplier was consistent with the acquirer’s

conduct in similar transactions between the acquirer

and other like suppliers; and

(g) the requirements of any applicable industry code;

and

(h) the requirements of any other industry code, if the

supplier acted on the reasonable belief that the

acquirer would comply with that code; and

(i) the extent to which the acquirer unreasonably failed

to disclose to the supplier:

(i) any intended conduct of the acquirer that

might affect the interests of the supplier; and

(ii) any risks to the supplier arising from the

acquirer’s intended conduct (being risks that

the acquirer should have foreseen would not

be apparent to the supplier); and

(j) if there is a contract between the acquirer and the

supplier for the acquisition of the goods or services:

(i) the extent to which the acquirer was willing

to negotiate the terms and conditions of the

contract with the supplier; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the acquirer and the supplier

in complying with the terms and conditions

of the contract; and

(iv) any conduct that the acquirer or the supplier

engaged in, in connection with their

commercial relationship, after they entered

into the contract; and

(k) without limiting paragraph (j), whether the acquirer

has a contractual right to vary unilaterally a term or

condition of a contract between the acquirer and the

supplier for the acquisition of the goods or services;

and

(l) the extent to which the acquirer and the supplier

acted in good faith.

22A. Presumptions relating to whether representations are misleading

Section 4 applies for the purposes of sections 21 and 22 in

the same way as it applies for the purposes of Division 1 of

Part 3-1.

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page 120 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2-3 — Unfair contract terms

23. Unfair terms of consumer contracts and small business contracts

(1) A term of a consumer contract or small business contract is

void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of

operating without the unfair term.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or

interest is wholly or predominantly for personal, domestic

or household use or consumption.

(4) A contract is a small business contract if:

(a) the contract is for a supply of goods or services, or a

sale or grant of an interest in land; and

(b) at the time the contract is entered into, at least one

party to the contract is a business that employs fewer

than 20 persons; and

(i) the upfront price payable under the contract

does not exceed $300,000;

(ii) the contract has a duration of more than 12

months and the upfront price payable under

the contract does not exceed $1,000,000.

(5) In counting the persons employed by a business for the

purposes of paragraph (4)(b), a casual employee is not to

be counted unless he or she is employed by the business on

a regular and systematic basis.

24. Meaning of unfair

(1) A term of a consumer contract or small business contract is

unfair if:

(a) it would cause a significant imbalance in the parties’

rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the

legitimate interests of the party who would be

advantaged by the term; and

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otherwise) to a party if it were to be applied or relied

on.

(2) In determining whether a term of a contract is unfair under

subsection (1), a court may take into account such matters

as it thinks relevant, but must take into account the

following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a contract

is presumed not to be reasonably necessary in order to

protect the legitimate interests of the party who would be

advantaged by the term, unless that party proves otherwise.

25. Examples of unfair terms

Without limiting section 24, the following are examples of the

kinds of terms of a consumer contract or small business

contract that may be unfair:

(a) a term that permits, or has the effect of permitting,

one party (but not another party) to avoid or limit

performance of the contract;

(b) a term that permits, or has the effect of permitting,

one party (but not another party) to terminate the

contract;

one party (but not another party) for a breach or

termination of the contract;

(d) a term that permits, or has the effect of permitting,

one party (but not another party) to vary the terms of

the contract;

(e) a term that permits, or has the effect of permitting,

one party (but not another party) to renew or not

renew the contract;

(f) a term that permits, or has the effect of permitting,

one party to vary the upfront price payable under the

contract without the right of another party to

terminate the contract;

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page 122 [This compilation shows amendments proposed by Bill No. 19-2.]

(g) a term that permits, or has the effect of permitting,

one party unilaterally to vary the characteristics of

the goods or services to be supplied, or the interest in

land to be sold or granted, under the contract;

(h) a term that permits, or has the effect of permitting,

one party unilaterally to determine whether the

contract has been breached or to interpret its

meaning;

(i) a term that limits, or has the effect of limiting, one

party’s vicarious liability for its agents;

(j) a term that permits, or has the effect of permitting,

one party to assign the contract to the detriment of

another party without that other party’s consent;

(k) a term that limits, or has the effect of limiting, one

party’s right to sue another party;

(l) a term that limits, or has the effect of limiting, the

evidence one party can adduce in proceedings

relating to the contract;

(m) a term that imposes, or has the effect of imposing,

the evidential burden on one party in proceedings

relating to the contract;

(n) a term of a kind, or a term that has an effect of a

kind, prescribed by the regulations.

26. Terms that define main subject matter of consumer contracts or

small business contracts etc. are unaffected

(1) Section 23 does not apply to a term of a consumer contract or small business contract to the extent, but only to the

extent, that the term:

(a) defines the main subject matter of the contract; or

(b) sets the upfront price payable under the contract; or

of the Commonwealth, a State or a Territory.

(2) The upfront price payable under a contract is the

consideration that:

(a) is provided, or is to be provided, for the supply, sale

or grant under the contract; and

(b) is disclosed at or before the time the contract is

entered into;

but does not include any other consideration that is

contingent on the occurrence or non-occurrence of a

particular event.

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page 123 [This compilation shows amendments proposed by Bill No. 19-2.]

27. Standard form contracts

(1) If a party to a proceeding alleges that a contract is a

standard form contract, it is presumed to be a standard

form contract unless another party to the proceeding proves

otherwise.

(2) In determining whether a contract is a standard form

contract, a court may take into account such matters as it

thinks relevant, but must take into account the following:

(a) whether one of the parties has all or most of the

bargaining power relating to the transaction;

(b) whether the contract was prepared by one party

before any discussion relating to the transaction

occurred between the parties;

to accept or reject the terms of the contract (other

than the terms referred to in section 26(1)) in the

form in which they were presented;

(d) whether another party was given an effective

opportunity to negotiate the terms of the contract

that were not the terms referred to in section 26(1);

(e) whether the terms of the contract (other than the

terms referred to in section 26(1)) take into account

the specific characteristics of another party or the

particular transaction;

(f) any other matter prescribed by the regulations.

28. Contracts to which this Part does not apply

(1) This Part does not apply to:

(a) a contract of marine salvage or towage; or

(b) a charterparty of a ship; or

(2) Without limiting subsection (1)(c), the reference in that

subsection to a contract for the carriage of goods by ship

includes a reference to any contract covered by a sea

carriage document within the meaning of the amended

Hague Rules referred to in section 7(1) of the Carriage of

Goods by Sea Act 1991.

(3) This Part does not apply to a contract that is the

constitution (within the meaning of section 9 of the

Corporations Act 2001) of a company, managed

investment scheme or other kind of body.

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page 124 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) This Part does not apply to a small business contract to

which a prescribed law of the Commonwealth, a State or a

Territory applies.

Chapter 3 — Specific protections

Part 3-1 — Unfair practices

Division 1 — False or misleading representations etc.

29. False or misleading representations about goods or services

(1) A person must not, in trade or commerce, in connection

with the supply or possible supply of goods or services or

in connection with the promotion by any means of the

supply or use of goods or services:

(a) make a false or misleading representation that goods

are of a particular standard, quality, value, grade,

composition, style or model or have had a particular

history or particular previous use; or

(b) make a false or misleading representation that

services are of a particular standard, quality, value or

grade; or

are new; or

(d) make a false or misleading representation that a

particular person has agreed to acquire goods or

services; or

(e) make a false or misleading representation that

purports to be a testimonial by any person relating to

goods or services; or

(f) make a false or misleading representation

concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a

testimonial;

relating to goods or services; or

(g) make a false or misleading representation that goods

or services have sponsorship, approval, performance

characteristics, accessories, uses or benefits; or

(h) make a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

(i) make a false or misleading representation with

respect to the price of goods or services; or

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(j) make a false or misleading representation

concerning the availability of facilities for the repair

of goods or of spare parts for goods; or

(k) make a false or misleading representation

concerning the place of origin of goods; or

(l) make a false or misleading representation

concerning the need for any goods or services; or

(m) make a false or misleading representation

concerning the existence, exclusion or effect of any

condition, warranty, guarantee, right or remedy

(including a guarantee under Division 1 of Part 3-2);

(n) make a false or misleading representation

concerning a requirement to pay for a contractual

right that:

(i) is wholly or partly equivalent to any

condition, warranty, guarantee, right or

remedy (including a guarantee under

Division 1 of Part 3-2); and

(ii) a person has under a law of the

Commonwealth, a State or a Territory (other

than an unwritten law).

Note 1: A pecuniary penalty may be imposed for a contravention of

this subsection.

Note 2: For rules relating to representations as to the country of

origin of goods, see Part 5-3.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation of a kind referred

to in subsection (1)(e) or (f), the representation is taken to

be misleading unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to

the contrary is adduced, the representation is not

misleading; or

(b) have the effect of placing on any person an onus of

proving that the representation is not misleading.

30. False or misleading representations about sale etc. of land

(1) A person must not, in trade or commerce, in connection

with the sale or grant, or the possible sale or grant, of an

interest in land or in connection with the promotion by any

means of the sale or grant of an interest in land:

(a) make a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

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Chapter 3 Specific protections

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page 126 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) make a false or misleading representation

concerning the nature of the interest in the land; or

concerning the price payable for the land; or

(d) make a false or misleading representation

concerning the location of the land; or

(e) make a false or misleading representation

concerning the characteristics of the land; or

(f) make a false or misleading representation

concerning the use to which the land is capable of

being put or may lawfully be put; or

(g) make a false or misleading representation

concerning the existence or availability of facilities

associated with the land.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) This section does not affect the application of any other

provision of Part 2-1 or this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

31. Misleading conduct relating to employment

A person must not, in relation to employment that is to be,

or may be, offered by the person or by another person,

engage in conduct that is liable to mislead persons seeking

the employment as to:

(a) the availability, nature, terms or conditions of the

employment; or

(b) any other matter relating to the employment.

Note: A pecuniary penalty may be imposed for a contravention of

this section.

32. Offering rebates, gifts, prizes etc.

(1) A person must not, in trade or commerce, offer any rebate,

gift, prize or other free item with the intention of not

providing it, or of not providing it as offered, in connection

with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of

goods or services; or

interest in land; or

(d) the promotion by any means of the sale or grant of

an interest in land.

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page 127 [This compilation shows amendments proposed by Bill No. 19-2.]

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) If a person offers any rebate, gift, prize or other free item in

connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of

goods or services; or

interest in land; or

(d) the promotion by any means of the sale or grant of

an interest in land;

the person must, within the time specified in the offer or (if

no such time is specified) within a reasonable time after

making the offer, provide the rebate, gift, prize or other

free item in accordance with the offer.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(3) Subsection (2) does not apply if:

(a) the person’s failure to provide the rebate, gift, prize

or other free item in accordance with the offer was

due to the act or omission of another person, or to

some other cause beyond the person’s control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(4) Subsection (2) does not apply to an offer that the person

makes to another person if:

(a) the person offers to the other person a different

rebate, gift, prize or other free item as a replacement;

and

(b) the other person agrees to receive the different

rebate, gift, prize or other free item.

(5) This section does not affect the application of any other

provision of Part 2-1 or this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

33. Misleading conduct as to the nature etc. of goods

A person must not, in trade or commerce, engage in

conduct that is liable to mislead the public as to the nature,

the manufacturing process, the characteristics, the

suitability for their purpose or the quantity of any goods.

Note: A pecuniary penalty may be imposed for a contravention of

this section.

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Chapter 3 Specific protections

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page 128 [This compilation shows amendments proposed by Bill No. 19-2.]

34. Misleading conduct as to the nature etc. of services

A person must not, in trade or commerce, engage in

conduct that is liable to mislead the public as to the nature,

the characteristics, the suitability for their purpose or the

quantity of any services.

Note: A pecuniary penalty may be imposed for a contravention of

this section.

35. Bait advertising

(1) A person must not, in trade or commerce, advertise goods

or services for supply at a specified price if:

(a) there are reasonable grounds for believing that the

person will not be able to offer for supply those

goods or services at that price for a period that is,

and in quantities that are, reasonable, having regard

to:

(i) the nature of the market in which the person

carries on business; and

(ii) the nature of the advertisement; and

(b) the person is aware or ought reasonably to be aware

of those grounds.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) A person who, in trade or commerce, advertises goods or

services for supply at a specified price must offer such

goods or services for supply at that price for a period that

is, and in quantities that are, reasonable having regard to:

(a) the nature of the market in which the person carries

on business; and

(b) the nature of the advertisement.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

36. Wrongly accepting payment

(1) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance, the person intends not to supply the

goods or services.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance, the person intends to supply goods or

services materially different from the goods or services in

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respect of which the payment or other consideration is

accepted.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(3) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance:

(a) there are reasonable grounds for believing that the

person will not be able to supply the goods or

services:

(i) within the period specified by or on behalf

of the person at or before the time the

payment or other consideration was

accepted; or

(ii) if no period is specified at or before that

time — within a reasonable time; and

(b) the person is aware or ought reasonably to be aware

of those grounds.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(4) A person who, in trade or commerce, accepts payment or

other consideration for goods or services must supply all

the goods or services:

(a) within the period specified by or on behalf of the

person at or before the time the payment or other

consideration was accepted; or

(b) if no period is specified at or before that time —

within a reasonable time.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(5) Subsection (4) does not apply if:

(a) the person’s failure to supply all the goods or services

within the period, or within a reasonable time, was due

to the act or omission of another person, or to some

other cause beyond the person’s control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(6) Subsection (4) does not apply if:

(a) the person offers to supply different goods or

services as a replacement to the person (the

customer) to whom the original supply was to be

made; and

(b) the customer agrees to receive the different goods or

services.

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Chapter 3 Specific protections

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page 130 [This compilation shows amendments proposed by Bill No. 19-2.]

(7) Subsections (1), (2), (3) and (4) apply whether or not the

payment or other consideration that the person accepted

represents the whole or a part of the payment or other

consideration for the supply of the goods or services.

37. Misleading representations about certain business activities

(1) A person must not, in trade or commerce, make a

representation that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material

aspect of any business activity that the person has

represented as one that can be, or can be to a

considerable extent, carried on at or from a person’s

place of residence.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) A person must not, in trade or commerce, make a

representation that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material

aspect of any business activity:

(i) that the person invites (whether by

advertisement or otherwise) other persons to

engage or participate in, or to offer or apply

to engage or participate in; and

(ii) that requires the performance of work by

other persons, or the investment of money

by other persons and the performance by

them of work associated with the

investment.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

38. Application of provisions of this Division to information providers

(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication

of matter by an information provider if:

(a) in any case — the information provider made the

publication in the course of carrying on a business of

providing information; or

(b) if the information provider is the Australian

Broadcasting Corporation, the Special Broadcasting

Service Corporation or the holder of a licence

granted under the Broadcasting Services Act 1992 —

the publication was by way of a radio or television

broadcast by the information provider.

Fair Trading Act 2010

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Specific protections Chapter 3

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page 131 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) Subsection (1) does not apply to a publication of an

advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the

promotion by any means of the supply or use of, goods or

services (the publicised goods or services), if:

(a) the publicised goods or services were goods or

services of a kind supplied by the information

provider or, if the information provider is a body

corporate, by a body corporate that is related to the

information provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who supplies goods or services of the same

kind as the publicised goods or services; or

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that supplies goods or services of the same kind as

the publicised goods or services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant,

of, or the promotion by any means of the sale or grant of,

interests in land (the publicised interests in land), if:

(a) the publicised interests in land were interests of a

kind sold or granted by the information provider or,

if the information provider is a body corporate, by a

body corporate that is related to the information

provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who sells or grants interests of the same kind

as the publicised interests in land; or

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that sells or grants interests of the same kind as the

publicised interests in land.

Division 2 — Unsolicited supplies

39. Unsolicited cards etc.

(1) A person must not send a credit card or a debit card, or an

article that may be used as a credit card and a debit card, to

another person except:

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Chapter 3 Specific protections

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page 132 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) pursuant to a written request by the person who will

be under a liability to the person who issued the card

or article in respect of the use of the card or article;

(b) in renewal or replacement of, or in substitution for:

(i) a card or article of the same kind previously

sent to the other person pursuant to a written

request by the person who was under a

liability, to the person who issued the card

previously so sent, in respect of the use of

that card; or

(ii) a card or article of the same kind previously

sent to the other person and used for a

purpose for which it was intended to be

used.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) Subsection (1) does not apply unless the card or article is

sent by or on behalf of the person who issued it.

(3) A person must not take any action that enables another

person who has a credit card to use the card as a debit card,

except in accordance with the other person’s written

request.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(4) A person must not take any action that enables another

person who has a debit card to use the card as a credit card,

except in accordance with the other person’s written

request.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(5) A credit card is an article that is one or more of the

following:

(a) an article of a kind commonly known as a credit

card;

(b) a similar article intended for use in obtaining cash,

goods or services on credit;

commonly issue to their customers, or prospective

customers, for use in obtaining goods or services

from those persons on credit;

and includes an article that may be used as an article

referred to in paragraph (a), (b) or (c).

(6) A debit card is:

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(a) an article intended for use by a person in obtaining

access to an account that is held by the person for the

purpose of withdrawing or depositing cash or

obtaining goods or services; or

(b) an article that may be used as an article referred to in

paragraph (a).

40. Assertion of right to payment for unsolicited goods or services

(1) A person must not, in trade or commerce, assert a right to

payment from another person for unsolicited goods unless

the person has reasonable cause to believe that there is a

right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) A person must not, in trade or commerce, assert a right to

payment from another person for unsolicited services

unless the person has reasonable cause to believe that there

is a right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(3) A person must not, in trade or commerce, send to another

person an invoice or other document that:

(a) states the amount of a payment, or sets out the

charge, for unsolicited goods or unsolicited services;

and

(b) does not contain a warning statement that complies

with the requirements set out in the regulations;

unless the person has reasonable cause to believe that there

is a right to the payment or charge.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(4) In a proceeding against a person in relation to a

contravention of this section, the person bears the onus of

proving that the person had reasonable cause to believe that

there was a right to the payment or charge.

41. Liability etc. of recipient for unsolicited goods

(1) If a person, in trade or commerce, supplies unsolicited

goods to another person, the other person:

(a) is not liable to make any payment for the goods; and

(b) is not liable for loss of or damage to the goods, other

than loss or damage resulting from the other person

doing a wilful and unlawful act in relation to the

goods during the recovery period.

Fair Trading Act 2010

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Chapter 3 Specific protections

s. 41

page 134 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) If a person sends, in trade or commerce, unsolicited goods

to another person:

(a) neither the sender nor any person claiming under the

sender is entitled, after the end of the recovery

period, to take action for the recovery of the goods

from the other person; and

(b) at the end of the recovery period, the goods become,

by force of this section, the property of the other

person freed and discharged from all liens and

charges of any description.

(3) However, subsection (2) does not apply to or in relation to

unsolicited goods sent to a person if:

(a) the person has, at any time during the recovery

period, unreasonably refused to permit the sender or

the owner of the goods to take possession of the

goods; or

(b) the sender or the owner of the goods has within the

recovery period taken possession of the goods; or

circumstances in which the person knew, or might

reasonably be expected to have known, that the

goods were not intended for him or her.

(4) The recovery period is whichever of the following periods

ends first:

(a) the period of 3 months starting on the day after the

day on which the person received the goods;

(b) if the person who receives the unsolicited goods

gives notice with respect to the goods to the supplier

or sender in accordance with subsection (5) — the

period of one month starting on the day after the day

on which the notice is given.

(5) A notice under subsection (4)(b):

(a) must be in writing; and

(b) must state the name and address of the person who

received the goods; and

taken of the goods, if it is not the address of the

person; and

(d) must contain a statement to the effect that the goods

are unsolicited goods.

Fair Trading Act 2010

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Specific protections Chapter 3

s. 42

page 135 [This compilation shows amendments proposed by Bill No. 19-2.]

42. Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies, or purports to

supply but does not supply, unsolicited services to another

person, the other person:

(a) is not liable to make any payment for the services;

and

(b) is not liable for loss or damage as a result of the

supply or purported supply of the services.

43. Assertion of right to payment for unauthorised entries or

advertisements

(1) A person must not assert a right to payment from another

person of a charge for placing, in a publication, an entry or

advertisement relating to:

(a) the other person; or

(b) the other person’s profession, business, trade or

occupation;

unless the person knows, or has reasonable cause to

believe, that the other person authorised the placing of the

entry or advertisement.

Note: A pecuniary penalty may be imposed for a contravention of

this subsection.

(2) A person must not send to another person an invoice or