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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Fair Trading (Telemarketing) Amendment
Bill 2008
A BILL FOR
An Act to amend the Fair Trading Act 1987.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Fair Trading
Act 1987
4 Substitution of heading to Part 3
5 Amendment
of section 13—Interpretation
6 Amendment of section
14—Application
7 Amendment of section 17—Requirements in relation
to prescribed contracts
8 Amendment of section 18—Acceptance of
consideration etc
9 Substitution of heading to Part 3 Division
3
10 Amendment of section 19—Prohibition hours
11 Amendment of
section 23—Exercise of right of rescission
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Fair Trading (Telemarketing) Amendment
Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Fair Trading
Act 1987
4—Substitution of
heading to Part 3
Heading to Part 3—delete the heading and substitute:
Part 3—Door-to-door trading and
telemarketing
5—Amendment of
section 13—Interpretation
(1) Section 13(1)—before the definition of contract to which
this Part applies insert:
contract summary—see section 17(1a)(b);
(2) Section 13(1), definition of cooling-off
period—delete the definition and substitute:
cooling-off period, in relation to a prescribed contract,
means the period of 10 days commencing on and including—
(a) in the case of a contract entered into in writing—the day on
which the contract is made; and
(b) in the case of a contract entered into orally over the
telephone—the day on which the contract summary is given to the
consumer;
(3) Section 13(1), definition of dealer—after
"door-to-door trading" insert:
or telemarketing
(4) Section 13(1), definition of dealer, (b)—after
"calls on" insert:
, or makes a telephone call to,
(5) Section 13(1), definition of door-to-door
trading—delete "door-to-door trading" and
substitute:
door-to-door trading or telemarketing
6—Amendment of
section 14—Application
(1) Section 14(1)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) negotiations leading to the formation of the contract (whether or not
they are the only negotiations that precede the formation of the contract) take
place between the consumer and a dealer—
(i) in each other's presence in South Australia at a place other than
trade premises of the supplier; or
(ii) in the case of a consumer ordinarily resident in South Australia, in
a telephone call between the consumer and the dealer;
(b) the dealer attends at that place or makes the telephone
call—
(i) in the course of door-to-door trading or telemarketing; and
(ii) otherwise than at the unsolicited invitation of the
consumer.
(2) Section 14(2)—after "subsection (1)(b)" insert:
, in determining whether an invitation is solicited or
unsolicited
(3) Section 14(2)(a)—delete "in determining whether an invitation is
solicited or unsolicited,"
(4) Section 14(2)—delete "but" between paragraphs (a) and
(b)
(5) Section 14(2)—delete "or" between paragraphs (b) and
(c)
7—Amendment of
section 17—Requirements in relation to prescribed
contracts
(1) Section 17(1)—delete "The" and substitute:
Subject to subsection (1a), the
(2) Section 17(1)(d)—delete paragraph (d) and substitute:
(ca) if the supplier wishes to limit the period for which the contract
offer remains open (that is, the period within which the contract must be signed
by the consumer and returned to the supplier), a statement to that effect
specifying the period must be included in the contract;
(d) the consumer must be given a duplicate of the contract immediately
after the making of the contract or supplied with 2 copies of the
contract to sign with instructions to return 1 copy to the supplier
and to retain 1 copy;
(3) Section 17(1)(i)—delete "statement referred to in paragraph (f)"
and substitute:
statements referred to in paragraphs (ca) and (f)
(4) Section 17—after subsection (1) insert:
(1a) If a prescribed contract is entered into orally over the telephone,
subsection (1) does not apply and the following requirements must be complied
with in relation to the contract:
(a) before the contract is entered into, the consumer must be informed
orally of the following matters:
(i) that the contract is subject to a cooling-off period of 10 days
commencing on and including the day on which the consumer is given a written
contract summary;
(ii) the total consideration to be paid or provided by the consumer or, if
the total consideration is not ascertainable at the time the contract is made,
the manner in which it is to be calculated;
(iii) if the contract provides for the carrying out of work of a
prescribed nature—detailed particulars of the work (including any such
particulars required by the regulations);
(iv) any other particulars required by the regulations;
(b) as soon as reasonably practicable after the contract is entered into,
a written contract summary must be given to the consumer in accordance with the
following requirements:
(i) the contract summary must specify the day on which the contract was
entered into orally;
(ii) the contract summary must set out in full all the contractual terms,
including—
(A) the total consideration to be paid or provided by the consumer or, if
the total consideration is not ascertainable at the time the contract is made,
the manner in which it is to be calculated; and
(B) if the contract provides for the carrying out of work of a prescribed
nature—detailed particulars of the work (including any such particulars
required by the regulations);
(iii) the contractual terms must be printed or typewritten (apart from any
insertions or amendments to the printed or typewritten form, which may be
handwritten);
(iv) if the dealer is not the supplier, the contract summary must set out
the full name and address of the dealer and identify that person as the
dealer;
(v) the contract summary must contain conspicuously at the top and bottom
of the document the statement "THE CONTRACT IS SUBJECT TO A COOLING-OFF PERIOD
OF TEN DAYS" printed in upper case in type not smaller than
18-point;
(vi) the contract summary must be accompanied by—
(A) a notice, in the prescribed form, explaining the right of the consumer
to rescind the contract; and
(B) a notice, in the prescribed form, that may be used by the consumer to
rescind the contract;
(vii) the notices referred to in subparagraph (vi)
must—
(A) be printed or typewritten (apart from any insertion, which may be
handwritten); and
(B) set out the full name and address of the supplier and identify that
person as the supplier; and
(C) be separate from, and not attached to, any other document;
(viii) the printing or typewriting of the contract summary, the statement
referred to in subparagraph (v) and the notices referred to in
subparagraph (vi), must be readily legible and conform with the
requirements of the regulations;
(ix) any handwriting (apart from a signature or initial) in the contract
summary or a notice referred to in subparagraph (vi) must be readily
legible.
(5) Section 17(2)—delete "any of the requirements of
subsection (1) is not complied with" and substitute:
there has been a contravention of, or a failure to comply with, this
section in relation to a prescribed contract
(6) Section 17(3)—delete "subsection (1)" and substitute:
this section
(7) Section 17(3)—delete ", as required by that subsection" and
substitute:
as required
8—Amendment of
section 18—Acceptance of consideration etc
(1) Section 18(1)—delete "If" and substitute:
Subject to subsection (3), if
(2) Section 18(3)—delete subsection (3) and substitute:
(3) This section or a provision of this section does not apply to a
contract of a kind excluded by the regulations from the application of the
section or provision.
9—Substitution of
heading to Part 3 Division 3
Heading to Part 3 Division 3—delete the heading and
substitute:
Division 3—Door-to-door trading and telemarketing
conduct
10—Amendment of
section 19—Prohibition hours
Section 19—delete "call on" and substitute:
visit
11—Amendment of
section 23—Exercise of right of rescission
(1) Section 23(2)(c)—after subparagraph (ii) insert:
(iii) by transmitting it to a fax number or email address shown on a
notice given to the consumer under this Part.
(2) Section 23—after subsection (3) insert:
(3a) A notice of rescission transmitted to a fax number or email address
in accordance with subsection (2) will be taken to have been given to the
supplier at the time of transmission.