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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Fair Trading Legislation (Repeal and
Amendment) Bill 2015
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to repeal the Consumer Claims Act 1998 and re-enact the substance of that Act in the Fair
Trading Act 1987,
(b) to repeal the Fitness Services (Pre-paid Fees) Act 2000 and the HomeFund Commissioner
Act 1993,
(c) to provide for the repeal of the Landlord and Tenant Act 1899 no later than 5 years after the
date of assent to the proposed Act,
(d) to make consequential and related amendments to other Acts.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act.
Clause 3 repeals the Acts referred to in the Overview, other than the Landlord and Tenant Act
1899. The repeal of that Act is provided for by Schedule 3.4.
Schedule 1 Amendment of Fair Trading Act 1987 No 68
Schedule 1 [11] re-enacts the substance of the Consumer Claims Act 1998, which is repealed by
section 3 of the proposed Act. Schedule 1 [6], [7], [12] and [16] make consequential amendments.
b2013-102-12.d23
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Explanatory note
Schedule 1 [2] inserts a definition of banker for the purposes of the Fair Trading Act 1987,
clarifying that wherever the term appears in that Act, it includes any authorised deposit-taking
institution (including building societies and credit unions).
Schedule 1 [13] amends a definition of prescribed authority, replacing a reference to an abolished
office (the Government Analyst) with a reference to bodies or persons prescribed by regulations
under the Fair Trading Act 1987. The amendment will enable certificates signed by or on behalf
of bodies or persons prescribed by the regulations to be used as evidence in proceedings under that
Act (unless the defendant requires the person who signed the certificate to be called as a witness
in the proceedings).
Schedule 1 [1], [3]-[5], [9], [14], [15] and [17] update terminology and expressions (including as
a consequence of the enactment of the Government Sector Employment Act 2013).
Schedule 1 [8] and [10] make amendments consequent on the repeal of the Fitness Services
(Pre-paid Fees) Act 2000 by the proposed Act.
Schedule 1 [18] enables the making of savings and transitional regulations consequent on the
enactment of the proposed Act or any other Act that amends the Fair Trading Act 1987.
Schedule 1 [19] contains savings and transitional provisions consequent on the repeal and
re-enactment of the Consumer Claims Act 1998, and on the repeal of the Fitness Services
(Pre-paid Fees) Act 2000, by the proposed Act.
Schedule 2 Amendment of Acts consequent on repeal of
Consumer Claims Act 1998
Schedule 2 makes amendments to Acts specified in the Schedule consequent on the repeal of the
Consumer Claims Act 1998 by the proposed Act.
Schedule 3 Amendment of other Acts
Schedule 3.4 inserts a new section into the Landlord and Tenant Act 1899 that provides for the
repeal of that Act 5 years after the section commences or on an earlier day appointed by
proclamation.
Schedule 3.1, 3.3 [1], [4], [7], [8], [12], [13], [15] and [20] and 3.6 make amendments to Acts
specified in Schedule 3.1, 3.3 and 3.6 consequent on the repeal by the proposed Act of the
HomeFund Commissioner Act 1993.
Schedule 3.2 and 3.5 make amendments to Acts specified in those subschedules consequent on
the repeal by the proposed Act of the Fitness Services (Pre-paid Fees) Act 2000.
Schedule 3.3 [2], [3], [5], [6], [9]-[11], [14], [16]-[19], [21] and [22] make amendments in the
nature of statute law revision.
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First print
New South Wales
Fair Trading Legislation (Repeal and
Amendment) Bill 2015
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeals 2
Schedule 1 Amendment of Fair Trading Act 1987 No 68 3
Schedule 2 Amendment of Acts consequent on repeal of Consumer Claims Act
1998 16
Schedule 3 Amendment of other Acts 18
b2013-102-12.d23
New South Wales
Fair Trading Legislation (Repeal and
Amendment) Bill 2015
No , 2015
A Bill for
An Act to amend the Fair Trading Act 1987 in relation to consumer claims; to provide for the
repeal of the Consumer Claims Act 1998, the Fitness Services (Pre-paid Fees) Act 2000, the
HomeFund Commissioner Act 1993 and the Landlord and Tenant Act 1899; and for other
purposes.
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Fair Trading Legislation (Repeal and Amendment) Act 2015. 3
2 Commencement 4
(1) This Act commences on the date of assent to this Act, except as provided by this 5
section. 6
(2) Section 3 (a) and (b) and Schedules 1 [6]-[8], [10]-[12] and [18], 2, 3.2 and 3.5 7
commence on a day or days to be appointed by proclamation. 8
(3) Schedule 1 [1], [3] and [4] commence on 1 July 2015 or assent, whichever is the later. 9
3 Repeals 10
The following Acts are repealed: 11
(a) the Consumer Claims Act 1998 No 162, 12
(b) the Fitness Services (Pre-paid Fees) Act 2000 No 95, 13
(c) the HomeFund Commissioner Act 1993 No 9. 14
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 1 Amendment of Fair Trading Act 1987 No 68
Schedule 1 Amendment of Fair Trading Act 1987 No 68 1
[1] Whole Act (except Schedule 5) 2
Omit "Director-General" and "Director-General's" wherever occurring. 3
Insert instead "Secretary" and "Secretary's", respectively. 4
[2] Section 4 Definitions 5
Insert in alphabetical order in section 4 (1): 6
banker has the same meaning as in section 2 (1) of the ACL. 7
[3] Section 4 (1) 8
Omit the definitions of Department, Director-General and officer. 9
Insert in alphabetical order: 10
Department means the Department of Finance, Services and Innovation. 11
employee means: 12
(a) the Secretary or any other Public Service employee employed in the 13
Department, or 14
(b) any person engaged by the Secretary (with the approval of the Minister 15
and on such terms as the Minister thinks fit) to assist in the exercise of 16
the Secretary's functions. 17
Secretary means: 18
(a) the Commissioner for Fair Trading, Department of Finance, Services 19
and Innovation, or 20
(b) if there is no person employed as Commissioner for Fair Trading--the 21
Secretary of the Department of Finance, Services and Innovation. 22
[4] Sections 4 (1) (definition of "investigator"), 10 (1) (a), 18 (1), 20 (6), 21 (2), 23, 23
24 (2) (a) and (b) and (3), 25 (2) (b) and (4) (b) and 47 and clause 1 (5) and (6) of 24
Schedule 4 25
Omit "officer", "officer's" and "officers" wherever occurring. 26
Insert instead "employee", "employee's" and "employees", respectively. 27
[5] Section 4 (1), definition of "public authority" 28
Omit ", a Government Department or an administrative office". 29
Insert instead "or a Public Service agency". 30
[6] Section 4 (1), definition of "services" 31
Omit "rights or benefits being the supply of goods or the performance of work under a 32
contract of service". 33
Insert instead "the supply of goods or the performance of work under a contract of 34
employment". 35
[7] Section 4 (1), definition of "supply" 36
Insert "(except in Part 6A)" after "includes". 37
[8] Section 8 Delegation by Secretary 38
Omit section 8 (1) (b1). 39
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[9] Section 14 Assignment to Australian legal practitioner of case of assisted person 1
Omit section 14 (1) (c). Insert instead: 2
(c) with the consent of the head of another Public Service agency--to an 3
Australian legal practitioner employed in that agency, or 4
[10] Section 79 Other injunctions 5
Omit section 79 (1) (a) (ii). 6
[11] Part 6A 7
Insert after Part 6: 8
Part 6A Jurisdiction of Tribunal in relation to consumer 9
claims 10
Note. For the purposes of comparison, provisions of this Part contain bracketed notes in headings 11
drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of 12
the Consumer Claims Act 1998 (the CC Act 1998) or the Consumer Claims Regulation 2014 (the CC 13
Reg 2014), as in force before the enactment of this Part. 14
Division 1 Preliminary 15
79B Objects of this Part (cf CC Act 1998, s 2A) 16
The objects of this Part are to provide for remedies for, and the straightforward 17
resolution of, disputes concerning the supply of goods and services to 18
consumers. 19
79C Conferral of jurisdiction under this or any other Act not affected 20
This Part does not affect any provision of this or any other Act that confers 21
jurisdiction on the Tribunal. 22
79D Definitions (cf CC Act 1998, s 3 (1) and s 3 (3) (transferred to definition of "consumer")) 23
In this Part: 24
consumer means any of the following persons or bodies to whom or to which 25
a supplier has supplied, or agreed to supply, goods or services (whether or not 26
under a contract), or with whom or with which a supplier has entered into a 27
contract that is collateral to a contract for the supply of goods or services: 28
(a) a natural person, 29
(b) a firm (within the meaning of the Partnership Act 1892), 30
(c) a small proprietary company (within the meaning of the Corporations 31
Act 2001 of the Commonwealth), 32
(d) an owners corporation constituted under the Strata Schemes 33
Management Act 1996, 34
(e) a company that owns an interest in land and has a memorandum or 35
articles of association conferring on each owner of shares in the 36
company a right to occupy under a lease or licence a part or parts of a 37
building erected on the land, 38
(f) an incorporated association, 39
(g) an unincorporated body whose members are associated for a common 40
purpose, 41
(h) a company limited by guarantee (other than a company limited both by 42
shares and by guarantee). 43
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
consumer claim--see section 79E. 1
goods means any tangible thing that is or may be the subject of trade or 2
commerce, but does not include money or an interest in land. 3
services--see section 79F. 4
supplier means a person who, in the course of carrying on (or purporting to 5
carry on) a business, supplies goods or services. 6
supply--see section 79G. 7
79E Meaning of "consumer claim" (cf CC Act 1998, s 3A) 8
(1) For the purposes of this Part, a consumer claim means a claim by a consumer, 9
for one or more of the following remedies, that arises from a supply of goods 10
or services by a supplier to the consumer (whether or not under a contract) or 11
that arises under a contract that is collateral to a contract for the supply of 12
goods or services: 13
(a) the payment of a specified sum of money, 14
(b) the supply of specified services, 15
(c) relief from payment of a specified sum of money, 16
(d) the delivery, return or replacement of specified goods or goods of a 17
specified description. 18
(2) For the avoidance of doubt, a reference in this Part to a consumer claim 19
includes a reference to a claim by a consumer against a supplier (for example, 20
a manufacturer or wholesaler) who is not the direct supplier of goods or 21
services to the consumer if the claim arises from or in connection with the 22
supply of those goods or services by the direct supplier to the consumer. 23
79F Meaning of "services" (cf CC Act 1998, s 3 (1), definition of "services") 24
(1) For the purposes of this Part, a reference to services is a reference to any of the 25
following: 26
(a) the performance of work (including work of a professional nature), 27
whether with or without the supply of goods, 28
(b) the provision of gas or electricity or the provision of any other form of 29
energy, 30
(c) the provision, or the making available for use, of facilities for 31
amusement, entertainment, recreation or instruction, 32
(d) the letting of premises for vacation or recreational purposes, 33
(e) the conferring of rights, benefits or privileges for which remuneration is 34
payable in the form of a royalty, tribute, levy or similar exaction, 35
(f) the provision of insurance cover, 36
(g) the rights or benefits provided, granted or conferred under a contract 37
between a banker and a customer of the banker entered into in the course 38
of the carrying on by the banker of the business of banking, 39
(h) the provision of credit, 40
(i) any other rights (including rights in relation to, and interests in, 41
property), benefits, privileges or facilities that are, or are to be, 42
provided, granted or conferred in trade or commerce. 43
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(2) However, a reference in this Part to services does not include a reference to 1
any of the following: 2
(a) the supply of goods or the performance of work under a contract of 3
employment, 4
(b) rights or benefits provided, granted or conferred under a service 5
contract (within the meaning of the Retirement Villages Act 1999), 6
(c) the provision of assurance cover in respect of a person's life. 7
79G Meaning of "supply" (cf CC Act 1998, s 3 (1) (definition of "supply") and s 3 (2)) 8
(1) For the purposes of this Part, a reference to the supply of goods includes a 9
reference to any of the following: 10
(a) supplying goods by way of sale, exchange, lease, hire or hire-purchase, 11
(b) resupplying goods, 12
(c) agreeing to supply goods, 13
(d) supplying goods together with services. 14
(2) For the purposes of this Part, a reference to the supply of services includes a 15
reference to any of the following: 16
(a) providing, granting or rendering services for valuable consideration, 17
(b) agreeing to supply services, 18
(c) supplying services together with goods. 19
79H Persons presumed to be consumers (cf CC Act 1998, s 4) 20
For the purposes of this Part: 21
(a) a person or body claiming to be a consumer is to be presumed to be a 22
consumer until the contrary is proved, and 23
(b) in any legal proceedings (including proceedings before the Tribunal), 24
the onus of proving that a person or body claiming to be a consumer is 25
not a consumer is on the party who seeks to establish that fact. 26
Division 2 Application to and jurisdiction of Tribunal 27
79I Consumer may apply to Tribunal (cf CC Act 1998, s 6) 28
Any consumer may apply to the Tribunal for determination of a consumer 29
claim. 30
79J General statement of jurisdiction (cf CC Act 1998, s 7 (1)) 31
The Tribunal has jurisdiction, except as otherwise provided by this Division, 32
to hear and determine a consumer claim the subject of an application under this 33
Division. 34
79K Supply or agreement made, or supply intended to be made, in New South 35
Wales (cf CC Act 1998, s 7 (2) and (3)) 36
(1) The Tribunal has jurisdiction to hear and determine a consumer claim only if: 37
(a) the goods or services to which the claim relates were supplied in New 38
South Wales, or 39
(b) a contract or other agreement to which the claim relates contemplated 40
that the goods or services would be supplied in New South Wales 41
(whether or not they were so supplied), or 42
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(c) a contract or other agreement to which the claim relates was made in 1
New South Wales (whether or not the goods or services were supplied 2
in New South Wales). 3
(2) The Tribunal has such jurisdiction whether or not: 4
(a) a contract or other agreement to which the claim relates confers 5
jurisdiction on any other court or tribunal (whether in New South Wales 6
or elsewhere), or 7
(b) the rules of private international law require a law other than the law of 8
New South Wales to be applied to the hearing or determination of the 9
claim. 10
79L Limitation periods (cf CC Act 1998, s 7 (4) and (4A)) 11
(1) The Tribunal does not have jurisdiction to hear and determine a consumer 12
claim if any of the following apply: 13
(a) the cause of action giving rise to the claim first accrued more than 14
3 years before the date on which the claim is lodged, 15
(b) the goods or services to which the claim relates were supplied (or, if 16
made in instalments, were last supplied) to the claimant more than 17
10 years before the date on which the claim is lodged. 18
(2) Nothing in this section affects any period of limitation under the Limitation 19
Act 1969. 20
79M Claim relating to solicitor's or barrister's costs (cf CC Act 1998, s 7 (5)) 21
A matter arising in relation to the fairness or reasonableness of the costs 22
charged by a barrister or solicitor for an item of business transacted by the 23
barrister or solicitor is not within the jurisdiction of the Tribunal if the costs 24
can be the subject of a costs assessment under Part 3.2 of the Legal Profession 25
Act 2004. 26
Division 3 Orders of Tribunal 27
79N Orders in favour of claimant (cf CC Act 1998, s 8 (1)) 28
In determining a consumer claim wholly or partly in favour of a claimant, the 29
Tribunal may, subject to this Division, make any one or more of the following 30
orders that it considers appropriate: 31
(a) an order that requires a respondent to pay to the claimant a specified 32
amount of money, 33
(b) an order that requires a respondent to perform specified work in order 34
to rectify a defect in goods or services to which the claim relates, 35
(c) an order that requires a respondent to supply to the claimant specified 36
services other than work, 37
(d) in the case of a claim for relief from payment of money--an order 38
declaring that a specified amount of money is not due or owing by the 39
claimant to a respondent, 40
(e) an order that requires a respondent to deliver to the claimant goods of a 41
specified description, 42
(f) an order that requires a respondent to return to the claimant specified 43
goods which are in the possession or under the control of that 44
respondent, whether the property in the goods has passed or not, 45
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(g) an order that requires a respondent to replace goods to which the claim 1
relates, 2
(h) an order that requires a respondent to refund all or part of the purchase 3
price of specified goods that are in the possession (or under the control) 4
of the claimant and the claimant to return all or part of those goods to 5
the respondent (whether the property in the goods has passed or not). 6
79O Orders in favour of respondent (cf CC Act 1998, s 8 (2)) 7
In determining a consumer claim wholly or partly in favour of a respondent to 8
the claim, the Tribunal may make any one or more of the following orders that 9
it considers appropriate: 10
(a) an order dismissing the claim or a part of the claim, 11
(b) an order that requires the claimant to pay to the respondent a specified 12
amount of money, 13
(c) an order that requires the claimant to return to the respondent specified 14
goods which are in the possession or under the control of the claimant, 15
whether the property in the goods has passed or not. 16
79P Orders where more than one respondent (cf CC Act 1998, s 8 (2A)) 17
Without limiting section 79N or 79O, in determining a consumer claim in 18
which there is more than one respondent, the Tribunal may make any one or 19
more of the following orders that it considers appropriate: 20
(a) an order that requires a respondent to pay to another respondent a 21
specified amount of money, 22
(b) an order that requires a respondent to supply to another respondent 23
specified services other than work, 24
(c) an order that requires a respondent to deliver to another respondent 25
goods of a specified description, 26
(d) an order that requires a respondent (the first respondent) to return to 27
another respondent specified goods that are in the possession or under 28
the control of the first respondent, whether the property in the goods has 29
passed or not. 30
79Q Other matters relating to orders under section 79N, 79O or 79P (cf CC Act 1998, 31
s 8 (3)-(5)) 32
(1) In making an order under section 79N, 79O or 79P requiring a party to a 33
consumer claim to pay a specified amount of money or to take any other 34
specified action, the Tribunal must, unless it has good reason to the contrary, 35
specify a period within which the money must be paid or the action must be 36
taken. 37
(2) The Tribunal may not make any of the orders referred to in this section unless 38
the claimant's case has been presented to the Tribunal (whether or not in 39
person) following the making of the relevant application under section 79I. 40
(3) Nothing in subsection (2) prevents the Tribunal from dismissing or adjourning 41
proceedings under section 55 of the Civil and Administrative Tribunal Act 42
2013. 43
79R Interim and ancillary orders (cf CC Act 1998, s 10) 44
(1) In the course of hearing a consumer claim, the Tribunal may make any interim 45
order that appears to the Tribunal desirable to be made pending final 46
determination of the claim. 47
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(2) When making an order for the determination of a consumer claim, the Tribunal 1
may make such ancillary orders as it considers necessary for the purpose of 2
enabling the order to have full effect. 3
79S Monetary limit on Tribunal's jurisdiction to make orders (cf CC Act 1998, s 14 and 4
CC Reg 2014, cl 4) 5
(1) The Tribunal has no jurisdiction to make, in respect of a particular consumer 6
claim, an order or orders in favour of the claimant (or, where there are two or 7
more claimants, in favour of those claimants) if the relevant total under or 8
because of the order or orders would exceed the prescribed amount. 9
(2) For the purposes of subsection (1), the relevant total is the total of: 10
(a) the amount or amounts (if any) of money to be paid, and 11
(b) the value or values (if any) of the work to be performed, or the services 12
to be supplied, and 13
(c) the amount or amounts (if any) of money to be declared not to be due or 14
owing, and 15
(d) the value or values of goods (if any) to be delivered or replaced. 16
(3) The Tribunal has no jurisdiction to make in respect of a particular consumer 17
claim an order or orders referred to in section 79O if the amount or the total of 18
the amounts (if any) to be paid under or because of the order or orders would 19
exceed the prescribed amount. 20
(4) The Tribunal has no jurisdiction to make in respect of a particular consumer 21
claim an order or orders under section 79P if the relevant total under or 22
because of the order or orders would exceed the prescribed amount. 23
(5) For the purposes of subsection (4), the relevant total is the total of: 24
(a) the amount or amounts (if any) of money to be paid, and 25
(b) the value or values (if any) of the services to be supplied, and 26
(c) the value or values of goods (if any) to be delivered. 27
(6) Subsections (1), (3) and (4) do not apply in relation to a consumer claim: 28
(a) arising from the supply of a new motor vehicle that is used substantially 29
for private purposes within the meaning of the Motor Vehicles Taxation 30
Act 1988, or 31
(b) relating to commission fees charged by agents licensed under the 32
Property, Stock and Business Agents Act 2002. 33
(7) In this section: 34
new motor vehicle means a motor vehicle that is not a second-hand motor 35
vehicle within the meaning of the Motor Dealers and Repairers Act 2013. 36
prescribed amount means $40,000 or such other amount as is prescribed for 37
the purposes of this section. 38
79T Suspension of orders (cf CC Act 1998, s 11) 39
(1) If the Tribunal has made an order under this Division that has not yet ceased 40
to have effect, the Tribunal may (on the application of the person against 41
whom or in whose favour the order was made or of its own motion) suspend 42
the operation of the order by making a suspension order. 43
(2) The Tribunal may make a suspension order for such reasons and for such 44
period, or until the happening of such event or the fulfilment of such 45
conditions, as the Tribunal specifies in the suspension order. 46
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
(3) Nothing in this section limits the operation of section 43 (2) of the 1
Interpretation Act 1987. 2
79U Matters to be considered by Tribunal when making orders (cf CC Act 1998, s 13) 3
(1) When making any orders under this Division, the Tribunal must be satisfied 4
that the orders will be fair and equitable to all the parties to the claim. 5
(2) Without limiting subsection (1), when determining whether or not to make an 6
order under this Division, the Tribunal is to take the following factors into 7
consideration if they are material to the particular circumstances of the case: 8
(a) whether or not there was any material inequality in bargaining power 9
between the parties to the claim, 10
(b) whether or not any party to the claim was not reasonably able to protect 11
the party's interest because of the age or physical or mental capacity of 12
that party, 13
(c) whether or not any person who represented any of the parties to the 14
claim was not reasonably able to protect the interests of the party 15
represented because of the age or physical or mental capacity of that 16
person, 17
(d) the relative economic circumstances, educational background and 18
literacy of the parties to the claim and of any person who represented 19
any of those parties, 20
(e) whether or not and when independent legal or other expert advice was 21
obtained by the claimant, 22
(f) whether any undue influence, unfair pressure or unfair tactic was 23
exerted on or used against the claimant: 24
(i) by any other party to the claim, or 25
(ii) by any person acting or appearing or purporting to act on behalf 26
of any other party to the claim, or 27
(iii) by any person to the knowledge of any other party to the claim or 28
of any person acting or appearing or purporting to act on behalf 29
of any other party to the claim, 30
(g) the conduct of the parties to the claim in relation to similar transactions 31
to which any of them has been a party, 32
(h) where the subject of the claim is a contract for the supply of goods or 33
services or a contract collateral to such a contract: 34
(i) whether or not before or at the time when the contract was made 35
its provisions were the subject of negotiation, and 36
(ii) whether or not it was reasonably practicable for the claimant to 37
negotiate for the alteration of the contract or to reject any of its 38
provisions, and 39
(iii) whether or not any provisions of the contract impose conditions 40
that are unreasonably difficult to comply with or not reasonably 41
necessary for the protection of the legitimate interests of any 42
party to the claim, and 43
(iv) if the contract is wholly or partly in writing, the physical form of 44
the contract and the intelligibility of the language in which it is 45
expressed, and 46
(v) the extent (if any) to which the provisions of the contract and their 47
legal effect were accurately explained by any person to the 48
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Schedule 1 Amendment of Fair Trading Act 1987 No 68
claimant and whether or not the claimant understood the 1
provisions and their effect, and 2
(vi) the commercial or other setting, purpose and effect of the 3
contract. 4
(3) Without limiting subsection (1), when determining whether or not to make an 5
order or orders under section 79N, 79O or 79P, it is appropriate for the 6
Tribunal to consider (if relevant to the particular circumstances of the case): 7
(a) any code of practice prescribed under this Act, and 8
(b) if the Secretary has brought to the attention of the Tribunal any other 9
code of practice (whether or not prescribed by or under any other Act)-- 10
that code of practice. 11
79V Joint liability (cf CC Act 1998, s 12) 12
Section 95 of the Civil Procedure Act 2005 applies to and in respect of an order 13
of the Tribunal under this Division as if such an order were a judgment of the 14
Supreme Court. 15
Division 4 Miscellaneous 16
79W Certain matters to be reported to President of Tribunal or to Minister (cf CC Act 17
1998, s 15) 18
(1) Members of the Tribunal may give a written report to the President of the 19
Tribunal concerning: 20
(a) any matter that arises out of the hearing or determination of a consumer 21
claim by the Tribunal (constituted by those members) that they consider 22
to be of importance as regards the relationship of consumer and 23
supplier, or 24
(b) any matter that, in their opinion, is relevant to the administration of this 25
Part and should be brought to the attention of the President of the 26
Tribunal. 27
(2) The President of the Tribunal may give a written report to the Minister 28
concerning: 29
(a) any matter that arises out of the hearing or determination of a consumer 30
claim by the Tribunal (constituted by the President) that the President 31
considers to be of importance as regards the relationship of consumer 32
and supplier, or 33
(b) any matter that, in the opinion of the President, is relevant to the 34
administration of this Part and should be brought to the attention of the 35
Minister, or 36
(c) any matter reported to the President by any member of the Tribunal in 37
accordance with subsection (1) and that the President considers should 38
be brought to the attention of the Minister. 39
(3) If, in the course of, or as a result of, the hearing of a consumer claim by the 40
Tribunal, it appears to the Tribunal that a supplier has, in the course of the 41
supplier's dealings with the claimant, engaged in conduct that should be 42
brought to the attention of the Secretary, the Tribunal may give a written report 43
to the Secretary concerning that conduct. 44
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(4) The Secretary may give a copy of any report relating to a supplier that is given 1
to the Secretary under this section (or any information contained in the report) 2
to: 3
(a) any authority responsible for the administration of a law that appears to 4
the Secretary to require the supplier (as a supplier of goods or services) 5
to be the holder of a licence, certificate of registration, practising 6
certificate, permit or other authority, or 7
(b) any trade organisation comprising persons (or mostly persons) who 8
supply goods or services of the kind supplied by the supplier, but only 9
if it appears to the Secretary that the supplier is a member of that 10
organisation. 11
(5) The Secretary has qualified privilege in proceedings for defamation arising out 12
of a communication made under this section. 13
79X Power of Secretary to establish and maintain list of unsatisfactory suppliers 14
(cf CC Act 1998, s 16) 15
(1) The Secretary may establish and maintain for the purposes of this Part a list to 16
be known as the unsatisfactory suppliers list. 17
(2) The Secretary may enter in the unsatisfactory suppliers list the name and any 18
other prescribed particulars of: 19
(a) any supplier who has been the subject of an adverse report made under 20
this Division, or 21
(b) any supplier who has failed to comply with the requirements of an order 22
made under this Part within the period specified in the order, or 23
(c) any supplier against whom more than the prescribed number of orders 24
has been made under this Part during the period prescribed for the 25
purposes of this paragraph. 26
(3) The Secretary must not enter the name and other particulars of a supplier in the 27
unsatisfactory suppliers list unless the supplier has first been given an 28
opportunity to show cause as to why the name and particulars of the supplier 29
should not be entered in the list and, having been given such an opportunity, 30
has not shown cause within such period (not less than 7 days after the 31
opportunity was given) as the Secretary may allow. 32
(4) The Secretary must remove the name and other prescribed particulars of a 33
supplier from the unsatisfactory suppliers list at the end of the period 34
prescribed for the purposes of this subsection, on the happening of a prescribed 35
event or on fulfilment of prescribed conditions. 36
(5) The Secretary may publish in such manner as the Secretary thinks fit a copy of 37
the unsatisfactory suppliers list or of any particulars currently entered in the 38
list. 39
(6) The Secretary has qualified privilege in proceedings for defamation arising out 40
of a publication made in accordance with subsection (5). 41
[12] Section 79B NSW Consumer Law Fund 42
Renumber the section as section 79Y. 43
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 1 Amendment of Fair Trading Act 1987 No 68
[13] Section 82 Certificate of analyst 1
Omit section 82 (2). Insert instead: 2
(2) In this section: 3
prescribed authority means: 4
(a) a registered laboratory of the National Association of Testing 5
Authorities, or 6
(b) any other body or person prescribed by the regulations. 7
[14] Section 87 Publication of certain statements prohibited 8
Omit "employed by the Department" from section 87 (1) (e). 9
Insert instead "employed in the Department". 10
[15] Section 87 (1) (e) 11
Omit "by an organisation". Insert instead "by or in an organisation". 12
[16] Section 92 Regulations 13
Omit "section 79B" from section 92 (1A) (c). Insert instead "section 79Y". 14
[17] Schedule 4A Provisions relating to advisory councils 15
Omit "Public Sector Management Act 1988" from clause 8 (1). 16
Insert instead "Government Sector Employment Act 2013". 17
[18] Schedule 5 Savings and transitional provisions 18
Insert at the end of clause 1A (1): 19
Fair Trading Legislation (Repeal and Amendment) Act 2015 20
any other Act that amends this Act 21
[19] Schedule 5, Part 6 22
Insert after Part 5: 23
Part 6 Provisions consequent on enactment of Fair 24
Trading Legislation (Repeal and Amendment) Act 25
2015 26
Division 1 Provisions consequent on repeal and re-enactment of 27
Consumer Claims Act 1998 28
28 Definition of "former Act" 29
In this Division: 30
former Act means the Consumer Claims Act 1998. 31
29 Jurisdiction of Tribunal in relation to pre-existing consumer claims 32
(1) Part 6A of this Act extends to a consumer claim arising before the 33
commencement of that Part (except as provided by subclause (2)). 34
(2) The former Act continues to apply in relation to a consumer claim the subject 35
of an application made under section 6 of the former Act that is not finally 36
determined. 37
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 1 Amendment of Fair Trading Act 1987 No 68
(3) For the purposes of this clause, an application is not finally determined if: 1
(a) any period for bringing an appeal as of right against a decision in respect 2
of the claim the subject of the application has not expired (ignoring any 3
period that may be available by way of extension of time to appeal), or 4
(b) any appeal against the decision is pending (whether or not it is an appeal 5
brought as of right). 6
30 Exclusion from definition of "services" 7
Section 79F (2) (b) does not apply in relation to a consumer claim the subject 8
of an application made under section 6 of the former Act before the 9
commencement of that paragraph. 10
31 Matters reported to President of Tribunal or to Minister 11
(1) A reference in section 79W to the hearing or determination of a consumer 12
claim includes a reference to the hearing or determination of a consumer claim 13
under the former Act. 14
(2) A reference in section 79W to a report given to the Secretary under that section 15
includes a reference to a report given to the Secretary under section 15 (3) of 16
the former Act. 17
32 Unsatisfactory suppliers list 18
(1) A list compiled under section 16 of the former Act is taken (as it stood 19
immediately before the repeal of that section) to form part of any list compiled 20
for the purposes of section 79X of this Act. 21
(2) A reference in section 79X (2) (a) of this Act to a report made under Division 22
4 of Part 6A includes a reference to a report made under section 15 of the 23
former Act. 24
(3) A reference in section 79X (2) (b) or (c) of this Act to an order made under 25
Part 6A includes a reference to an order made under the former Act. 26
33 Qualified privilege in proceedings for defamation 27
Despite the repeal of the former Act, the Secretary continues, because of the 28
operation of section 30 of the Interpretation Act 1987, to have qualified 29
privilege in proceedings for defamation arising out of: 30
(a) a communication made under section 15 of the former Act, or 31
(b) a publication made in accordance with section 16 (5) of the former Act. 32
Division 2 Provisions consequent on repeal of Fitness Services 33
(Pre-paid Fees) Act 2000 34
34 Definitions 35
In this Division: 36
former Act means the Fitness Services (Pre-paid Fees) Act 2000, as in force 37
immediately before the repeal day. 38
relevant fitness service agreement means a fitness service agreement entered 39
into before the repeal day and in force immediately before that day. 40
repeal day means the day on which the Fitness Services (Pre-paid Fees) Act 41
2000 is repealed by the Fair Trading Legislation (Repeal and Amendment) Act 42
2015. 43
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 1 Amendment of Fair Trading Act 1987 No 68
35 Refund of pre-paid fee if service not provided within 3 months 1
Section 10 (2) and (5) of the former Act continue to apply in relation to a fee 2
accepted before the repeal day in the same way as those provisions would have 3
applied if the former Act had continued in force. 4
36 Termination of fitness service agreement if service not commenced within 5
3 months 6
Section 10 (3) of the former Act continues to apply in relation to a relevant 7
fitness service agreement in the same way as that provision would have 8
applied if the former Act had continued in force. 9
37 Civil consequences of contravention 10
Section 17 of the former Act continues to apply in relation to a pre-paid fee 11
accepted or received in contravention of section 10 (2) of the former Act (as 12
continued by this Division), or under a relevant fitness service agreement 13
terminated by the operation of section 10 (3) of the former Act (as continued 14
by this Division), in the same way as that provision would have applied if the 15
former Act had continued in force. 16
38 Pre-paid fees required to be held in trust account before service commenced 17
Section 11 of the former Act and the regulations made under that section (as 18
in force immediately before the repeal day) continue to apply in relation to 19
money received before the repeal day for a pre-paid fee for the provision of a 20
fitness service under a fitness service agreement. 21
39 Injunctions may be granted by Supreme Court 22
Despite the repeal of section 79 (1) (a) (ii) of this Act and the repeal of the 23
former Act, section 79 continues to apply in relation to conduct that constitutes 24
or would constitute: 25
(a) a contravention of section 10 (2) or 11 of the former Act (as continued 26
by this Division), or 27
(b) attempting to contravene that provision, or 28
(c) aiding, abetting, counselling or procuring a person to contravene that 29
provision, or 30
(d) inducing, or attempting to induce, whether by threats or promises or 31
otherwise, a person to contravene that provision, or 32
(e) being in any way, directly or indirectly, knowingly concerned in, or 33
party to, the contravention by a person of that provision, or 34
(f) conspiring with others to contravene that provision. 35
40 Penalty notices 36
Section 16 of the former Act and the regulations made under that section 37
continue to apply in relation to an alleged offence against section 10 (2) or 38
11 (7) of the former Act (as continued by this Division). 39
41 Operation of Interpretation Act 1987 40
For the avoidance of doubt, nothing in this Division limits the operation of 41
section 30 of the Interpretation Act 1987 in relation to the repeal of the 42
following: 43
(a) the former Act, 44
(b) section 79 (1) (a) (ii) of this Act. 45
Page 15
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 2 Amendment of Acts consequent on repeal of Consumer Claims Act 1998
Schedule 2 Amendment of Acts consequent on repeal of 1
Consumer Claims Act 1998 2
2.1 Civil and Administrative Tribunal Act 2013 No 2 3
Schedule 4 Consumer and Commercial Division 4
Omit "Consumer Claims Act 1998" from clause 3 (1). 5
2.2 Conveyancers Licensing Act 2003 No 3 6
Section 51 Powers of Tribunal 7
Omit "The provisions of sections 9-13 of the Consumer Claims Act 1998" from 8
section 51 (2). 9
Insert instead "Sections 79R and 79T-79V of the Fair Trading Act 1987". 10
2.3 Home Building Act 1989 No 147 11
[1] Section 48A Definitions 12
Insert in alphabetical order in section 48A (1): 13
goods, services and supply have the same meanings as in Part 6A of the Fair 14
Trading Act 1987. 15
[2] Section 48A (3) and (4) 16
Omit the subsections. 17
[3] Section 48O Powers of Tribunal 18
Omit "The provisions of sections 9-13 of the Consumer Claims Act 1998" from 19
section 48O (3). 20
Insert instead "Sections 79R and 79T-79V of the Fair Trading Act 1987". 21
2.4 Property, Stock and Business Agents Act 2002 No 66 22
[1] Section 36 Review of commission and fees 23
Omit "Consumer Claims Act 1998" from section 36 (4). 24
Insert instead "Part 6A of the Fair Trading Act 1987". 25
[2] Section 36 (5) 26
Omit "the Consumer Claims Act 1998 to that person, a reference in that Act". 27
Insert instead "Part 6A of the Fair Trading Act 1987 to that person, a reference in that Part". 28
[3] Section 36 (7) 29
Omit "the Consumer Claims Act 1998". 30
Insert instead "Part 6A of the Fair Trading Act 1987". 31
Page 16
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 2 Amendment of Acts consequent on repeal of Consumer Claims Act 1998
2.5 Sydney Water Act 1994 No 88 1
[1] Section 58 Consumer claims 2
Omit "the Consumer Claims Act 1998". 3
Insert instead "Part 6A of the Fair Trading Act 1987". 4
[2] Section 58 5
Omit "that Act". Insert instead "that Part". 6
Page 17
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts 1
3.1 Defamation Act 2005 No 77 2
Schedule 1 Additional publications to which absolute privilege applies 3
Omit clause 23. 4
3.2 Fines Act 1996 No 99 5
Schedule 1 Statutory provisions under which penalty notices issued 6
Omit the matter relating to the Fitness Services (Pre-paid Fees) Act 2000. 7
3.3 HomeFund Restructuring Act 1993 No 112 8
[1] Section 3 Definitions 9
Omit the definitions of determination and HomeFund Commissioner from section 3 (1). 10
[2] Section 3 (1), definition of "HomeFund mortgage" 11
Insert ", on or before 30 June 1994," after "executed". 12
[3] Section 8 HomeFund borrowers' access to restructuring scheme 13
Insert after section 8 (1): 14
Note. The last date on which assistance could be taken up under the restructuring 15
scheme was 31 August 1994. 16
[4] Section 8 (2) 17
Omit the subsection. 18
[5] Section 14 Provision of financial counselling and legal assistance to HomeFund 19
borrowers 20
Omit the section. 21
[6] Section 15 Claims against the Crown and others 22
Omit the heading to section 15 (1). 23
[7] Section 15 (1) 24
Omit "(and a determination may not be made)". 25
[8] Section 15 (2) and (3) 26
Omit the subsections. 27
[9] Section 15 (4), heading 28
Omit the heading. 29
[10] Section 15 (4) 30
Omit ", the Civil and Administrative Tribunal Act 2013". 31
[11] Section 15 (5), heading 32
Omit the heading. 33
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Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 3 Amendment of other Acts
[12] Section 15 (5) 1
Omit "(other than the right to have a determination made)". 2
[13] Section 15 (6)-(9) 3
Omit the subsections. 4
[14] Section 16 Application of section 15 (1) to entitlements existing on 28 January 1994 5
Omit section 16 (1). Insert instead: 6
(1) Section 15 (1) applies only to entitlements in existence on 28 January 1994. 7
[15] Section 16 (2) 8
Omit the subsection. 9
[16] Section 20 Suspension of limitation period 10
Omit the section. 11
[17] Section 21 Report 12
Omit the section. 13
[18] Section 24, heading 14
Omit "and transitional". Insert instead ", transitional and other". 15
[19] Schedule 1 Restructuring scheme 16
Insert after the heading to the Schedule: 17
Note. The last date on which assistance could be taken up under this scheme was 18
31 August 1994. 19
[20] Schedule 2 Complaints that may be the subject of a determination under the 20
HomeFund Commissioner Act 1993 21
Omit the Schedule. 22
[21] Schedule 4, heading 23
Omit "and transitional". Insert instead ", transitional and other". 24
[22] Schedule 4, clause 1 25
Omit clauses 1-3. Insert instead: 26
1 Revocation of repeal 27
Section 29A of the Interpretation Act 1987 applies to the repeal of any 28
provisions of this Act by the Fair Trading Legislation (Repeal and 29
Amendment) Act 2015. 30
3.4 Landlord and Tenant Act 1899 No 18 31
Section 1D 32
Insert after section 1C: 33
1D Repeal of Act 34
This Act is repealed 5 years after the day on which this section commences or 35
on such earlier day as may be appointed by proclamation. 36
Page 19
Fair Trading Legislation (Repeal and Amendment) Bill 2015 [NSW]
Schedule 3 Amendment of other Acts
3.5 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 1
Schedule 2 Search warrants under other Acts 2
Omit the matter relating to the Fitness Services (Pre-paid Fees) Act 2000. 3
3.6 Ombudsman Act 1974 No 68 4
Schedule 1 Excluded conduct of public authorities 5
Omit item 25. 6
Page 20
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