Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Division 5.1A Conciliation of consumer complaints
Subdivision 5.1A.1 Preliminary
34A Application—div 5.1A
This division applies in relation to a consumer complaint made by a consumer to the commissioner if the value of the remedy sought in relation to the complaint is not more than $5 000.
34B Definitions—div 5.1A
In this division:
"acquire"—see the Australian Consumer Law (ACT)
, section 2 (1).
"business "means a person in trade or commerce, a supplier, a manufacturer or another person to whom the consumer legislation applies.
"compulsory conciliation notice"—see section 34G.
"consumer"—
(a) in relation to the Australian Consumer Law (ACT)
—see the Australian Consumer Law (ACT)
, section 2 (1); or
(b) in relation to any other consumer legislation—means a person who acquires goods or services from a business for personal, domestic or household use or consumption.
"consumer complaint"—
(a) means a complaint by a consumer about a civil dispute with a business in relation to consumer or fair trading issues and practices; and
(b) includes a complaint by a consumer about a contravention of the consumer legislation by the business.
"consumer legislation" means any of the following:
(a) the Agents Act 2003
;
(b) the Australian Consumer Law (ACT)
;
(c) the Fair Trading (Motor Vehicle Repair Industry) Act 2010
;
(d) the Pawnbrokers Act 1902
;
(e) the Sale of Motor Vehicles Act 1977
;
(f) the Second-hand Dealers Act 1906
.
"party", to a conciliation of a consumer complaint, means a person mentioned in section 34E in relation to the complaint.
34C Meaning of conciliation —div 5.1A
(1) In this division, conciliation of a consumer complaint involves the commissioner acting as an impartial third party to help the parties to the conciliation to endeavour to resolve the matters raised by the complaint by agreement.
(2) The parties to the conciliation decide the outcome of the conciliation, usually with advice from the commissioner.
Subdivision 5.1A.2 Conciliation
34D Conciliation
The commissioner may conciliate a consumer complaint, or part of a consumer complaint, if—
(a) the commissioner is satisfied that the matters raised by the complaint, or part of the complaint, are appropriate for conciliation; and
Example
A consumer complaint is not appropriate for conciliation if it is before the ACAT or if the conduct complained about may constitute a criminal offence.
(b) the consumer who made the complaint agrees.
34E Parties to conciliation
The parties to a conciliation of a consumer complaint are the consumer who made the complaint and the business that is the subject of the complaint.
34F Attendance at conciliation
(1) A consumer who makes a consumer complaint must attend a conciliation of the complaint unless—
(a) the consumer is a child or a person with disability, and another person attends on behalf of the consumer; or
(b) the commissioner consents to another person attending the conciliation on behalf of the consumer.
(2) The commissioner may agree to a person accompanying the consumer at the conciliation.
(3) If a business receives a compulsory conciliation notice, the business must attend the conciliation at the time and place mentioned in the notice.
Note A business that contravenes s (3) is liable to a civil penalty of not more than $5 000 (see sdiv 5.1A.3).
(4) Subsection (3) does not apply to a business if it has a reasonable excuse for not attending the conciliation at the time or place mentioned in the notice.
Note A business has an evidential burden in relation to the matters mentioned in s (4) (see s 34T).
(5) A party to a conciliation must not be represented by a lawyer unless—
(a) another party to the conciliation is a lawyer; or
(b) each party to the conciliation agrees; or
(c) the commissioner is satisfied that the party would be unfairly disadvantaged if not represented by a lawyer.
(6) If the commissioner agrees, a person may attend a conciliation by telephone or other electronic means.
34G Compulsory conciliation notice
(1) The commissioner may, by written notice (a compulsory conciliation notice ), require a business to attend a conciliation in relation to a consumer complaint if—
(a) the business is the subject of the complaint; and
(b) the consumer who made the complaint agrees.
(2) The compulsory conciliation notice must state the time and place that the business is required to attend the conciliation.
34H Conduct of conciliation
Conciliation is to be conducted in the way the commissioner decides.
Examples
1 the commissioner may decide that a consumer complaint is to be split and the parts are to be conciliated separately
2 the commissioner may decide to conciliate a consumer complaint by holding a conference with the parties
34I Conciliated agreements
(1) If a consumer complaint is resolved by agreement at conciliation, the commissioner must help the parties to make a written record of the agreement they have reached (the conciliation agreement ).
(2) A conciliation agreement must be signed by each party to the conciliation.
(3) The commissioner must give each party a copy of the conciliation agreement.
Note The ACAT may make an order in accordance with a conciliation agreement for a consumer complaint (see ACT Civil and Administrative Tribunal Act 2008
, s 55B).
34J End of conciliation
(1) Conciliation of a consumer complaint ends when—
(a) agreement is reached on the matters raised by the complaint and the parties end the conciliation; or
(b) the parties agree to end the conciliation; or
(c) the consumer withdraws from the conciliation; or
(d) the commissioner is satisfied that the conciliation is unlikely to be successful.
(2) When the conciliation ends, the commissioner must, as soon as practicable, tell each party to the conciliation that it has ended and why it has ended.
34K Admissibility of evidence
(1) This section applies to—
(a) a communication made between people attending a conciliation (including the commissioner); and
(b) a document (whether delivered or not) that has been prepared in relation to the conciliation.
(2) The Evidence Act 2011
, section 131 (Exclusion of evidence of settlement negotiations) applies to a communication or document to which this section applies as if the communication or document were a communication or document mentioned in that Act
, section 131 (1).
Subdivision 5.1A.3 Civil penalties—business failing to attend conciliation
34L Definitions—sdiv 5.1A.3
In this subdivision:
"civil penalty order "means an order made by the Magistrates Court under section 34M (3).
"civil penalty provision "means section 34F (3).
(1) The commissioner may apply to the Magistrates Court for an order that a business alleged to have contravened the civil penalty provision pay the Territory a pecuniary penalty of not more than $5 000.
(2) The commissioner must make the application within 6 years after the alleged contravention.
(3) If the Magistrates Court is satisfied that the business has contravened the civil penalty provision, the court may order the business to pay to the Territory a pecuniary penalty of an amount the court determines to be appropriate for the contravention.
(4) In determining an amount under subsection (3), the court must take into account the following:
(a) the nature and circumstances that led to the contravention;
(b) the nature and extent of any loss suffered by the commissioner because of the contravention;
(c) the size of the business;
(d) whether the business has previously contravened the civil penalty provision and the circumstances of the previous contravention;
Examples—circumstances of previous contravention
1 the number of previous contraventions by the business in relation to the dispute being conciliated
2 the number of previous contraventions by the business in relation to conciliations for other disputes
3 whether the circumstances of a previous contravention is similar to the circumstances of the current contravention
(e) any other matter the court considers relevant.
34N Civil enforcement of penalty
A pecuniary penalty under a civil penalty order is a debt owing to the Territory by the business in relation to whom the order is made.
Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act
, s 177).
34O Multiple contraventions of civil penalty provision
(1) The Magistrates Court may make a single civil penalty order against a business for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each contravention.
34P Proceedings may be heard together
The Magistrates Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
34Q Civil evidence and procedure rules for civil penalty orders
The Magistrates Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
34R Civil penalty provisions—no fault element
In proceedings for a civil penalty order against a business for a contravention of a civil penalty provision, it is not necessary to prove any fault element in relation to the contravention.
Examples—fault element
1 intention
2 knowledge
3 negligence
4 recklessness
34S Civil penalty provisions—contravention by corporation representative
(1) If a civil penalty provision is contravened by a representative of a corporation acting within the actual or apparent scope of the representative's employment, or within the representative's actual or apparent authority, the contravention must also be attributed to the corporation.
(2) In this section:
"representative", of a corporation, means an employee, agent or officer of the corporation.
34T Reasonable excuse—burden of proof
If a business wishes to rely on section 34F (4) in a proceeding for a civil penalty order, the business has an evidential burden in relation to the matter.