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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment and Repeal (Australian Consumer Law)
Bill 2010
A BILL FOR
An Act to amend the Fair
Trading Act 1987 to make provision for the application of the
Australian Consumer Law as a law of South Australia; to amend the Statutes
Amendment and Repeal (Fair Trading) Act 2009; and to repeal the Fair
Trading (Telemarketing) Amendment Act 2009, the Manufacturers
Warranties Act 1974 and the Trade
Standards Act 1979.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Fair Trading
Act 1987
4Amendment of long title
5Substitution of
section 3
3Interpretation
6Insertion of section
4A
4AExtraterritorial
application
7Substitution of Parts 3 and 4
Part 3—Australian Consumer
Law
Division 1—Application of
Australian Consumer Law
13Australian Consumer Law
text
14Application of Australian
Consumer Law
15Future modifications of
Australian Consumer Law text
16Meaning of generic terms used
in Australian Consumer Law
17Interpretation of Australian
Consumer Law
18Application of Australian Consumer
Law
Division 2—References to Australian
Consumer Law
19References to
Australian Consumer Law
20References to Australian Consumer Laws of other
jurisdictions
Division 3—Application of
Australian Consumer Law to Crown
21Division does not apply to
Commonwealth
22Application law of this
jurisdiction
23Application law of other
jurisdictions
24Activities that are not
business
25Crown not liable to pecuniary
penalty or prosecution
Division 4—Miscellaneous
26Conferral of functions and powers on certain
bodies
27No
doubling-up of liabilities
28Certain proceedings prevented in certain
circumstances
28AMinister may require
information
28BMinister to publish certain notices in
Gazette
28CCost of
testing
8Amendment of heading to Part 5
9Amendment of
section 34—Correction of errors
10Repeal of Part 6
11Substitution
of heading to Part 7
12Substitution of section
42
42Recreational
services
13Repeal of heading to Part 8
14Repeal of
heading to Part 8A
15Amendment of heading to Part 9
16Repeal of Part
10
17Amendment of heading to Part 11
18Amendment of
section 76—Conduct of legal proceedings on behalf of consumers
19Amendment of
section 78—Entry and inspection
20Insertion of sections 78B and
78C
78BDealing with goods
bought or seized
78CEmbargo
notices
21Amendment of section
79—Assurances
22Insertion of section
82A
82AApplication of
Division
23Amendment of section
83—Injunctions
24Repeal of section 84
25Amendment of section
85—Orders for compensation
26Insertion of section
86A
86AApplication of
Division
27Amendment of section 91—Evidentiary
provisions
28Amendment of section 91A—Public warning
statements
29Amendment of section
97—Regulations
30Transitional provision
Part 3—Amendment of Statutes
Amendment and Repeal (Fair Trading) Act 2009
31Variation of section
11—Amendment of section 3—Interpretation
32Repeal of section
34
33Repeal of section 36
Part 4—Repeal of Fair Trading
(Telemarketing) Amendment Act 2009
34Repeal of Fair Trading
(Telemarketing) Amendment Act 2009
Part 5—Repeal of Manufacturers
Warranties Act 1974
35Repeal of Manufacturers Warranties
Act 1974
Part 6—Repeal of Trade Standards
Act 1979
36Repeal of Trade Standards
Act 1979
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment and Repeal (Australian
Consumer Law) Act 2010.
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
Long title—delete "in respect of certain unfair or undesirable trade
practices," and substitute:
for the application of the Australian Consumer Law as a law of South
Australia;
Section 3—delete the section and substitute:
3—Interpretation
(1) In this Act, unless the contrary intention appears—
application law means—
(a) a law of a
participating jurisdiction that applies the Australian Consumer Law, either with
or without modifications, as a law of the participating jurisdiction;
or
(b) any regulations or other legislative instrument made under a law
described in
paragraph (a);
or
(c) the Australian Consumer Law, applying as a law of the participating
jurisdiction, either with or without modifications;
Australian Consumer Law means (according to the
context)—
(a) the Australian Consumer Law text; or
(b) the Australian Consumer Law text, applying as a law of a participating
jurisdiction, either with or without modifications;
Australian Consumer Law (SA)—see
section 14(1)(b);
Australian Consumer Law text means the text described in
section 13;
authorised officer means a person who is an authorised
officer under section 7;
Commissioner means the Commissioner for Consumer
Affairs;
Competition and Consumer Act means the Competition and
Consumer Act 2010 of the Commonwealth;
consumer affairs authority means—
(a) the Commissioner; or
(b) a person or authority that has, under a law of another jurisdiction,
powers and functions similar to those of the Commissioner;
District Court means the Administrative and Disciplinary
Division of the District Court;
instrument means any document whatever, including the
following:
(a) an Act or an instrument made under an Act;
(b) a law of this jurisdiction or an instrument made under such a
law;
(c) an award or other industrial determination or order, or an industrial
agreement;
(d) any other order (whether executive, judicial or otherwise);
(e) a notice, certificate or licence;
(f) an agreement;
(g) an application made, information or complaint laid, affidavit sworn,
or warrant issued, for any purpose;
(h) an indictment, presentment, summons or writ;
(i) any other pleading in, or process issued in connection with, a legal
or other proceeding;
Intergovernmental Agreement means the Intergovernmental
Agreement for the Australian Consumer Law made on 2 July 2009
between the Commonwealth, the State of New South Wales, the State of Victoria,
the State of Queensland, the State of Western Australia, the State of South
Australia, the State of Tasmania, the Australian Capital Territory and the
Northern Territory of Australia, as in force for the time being;
involved—a person is involved, in a contravention of a
provision of this Act or in conduct that constitutes such a contravention, if
the person—
(a) has aided, abetted, counselled or procured the contravention;
or;
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention; or
(d) has conspired with others to effect the contravention;
jurisdiction means a State or the Commonwealth;
law, in relation to a Territory, means a law of, or in force
in, that Territory;
Magistrates Court means the Civil (Consumer and Business)
Division of the Magistrates Court;
modifications includes additions, omissions and
substitutions;
participating jurisdiction means a jurisdiction that is a
party to the Intergovernmental Agreement and applies the Australian Consumer Law
as a law of the jurisdiction, either with or without modifications;
related Act means an Act or a provision of an
Act—
(a) of which the Commissioner is stated, in that Act, to have the
administration; or
(b) that is prescribed by the regulations to be a related Act;
State includes a Territory;
Territory means the Australian Capital Territory or the
Northern Territory of Australia;
this jurisdiction means South Australia;
trader means a person who in the course of a
business—
(a) supplies, or offers to supply, goods or services; or
(b) sells or lets, or offers to sell or let, premises;
trading debt means a debt owed to a trader.
(2) A reference in this Act to the supply of goods or services extends to
the supply of both goods and services.
(3) The regulations may exclude a person, or a class of persons, from the
ambit of the definition of consumer for the purposes of this Act
(other than the Australian Consumer Law (SA)).
(4) Terms used in this Act and also in the Australian Consumer Law (SA)
have, unless the contrary intention appears, the same meanings in this Act as
they have in that Law.
(5) For the purposes of this Act—
(a) a jurisdiction is taken to have applied the Australian Consumer Law as
a law of the jurisdiction if a law of the jurisdiction substantially corresponds
to the provisions of the Australian Consumer Law text, as in force from time to
time; and
(b) that corresponding law is taken to be the Australian Consumer Law, or
the Australian Consumer Law text, applying as a law of that
jurisdiction.
After section 4 insert:
4A—Extraterritorial
application
(1) This Act is
intended to have extraterritorial application insofar as the legislative powers
of the State permit.
(2) Without limiting
subsection (1),
this Act extends to conduct either in or outside the State that—
(a) is in connection with goods or services supplied in the State;
or
(b) affects a person in the State; or
(c) results in loss or damage in the State.
7—Substitution
of Parts 3 and 4
Parts 3 and 4—delete the Parts and substitute:
Part 3—Australian Consumer Law
Division 1—Application of Australian Consumer
Law
13—Australian Consumer Law
text
The Australian Consumer Law text consists of—
(a) Schedule 2 of the Competition and Consumer Act 2010
of the Commonwealth; and
(b) the regulations under section 139G of that Act.
14—Application of Australian Consumer
Law
(1) The Australian Consumer Law text, as in force from time to
time—
(a) applies as a law of this jurisdiction; and
(b) as so applying may be referred to as the Australian Consumer Law
(SA); and
(c) as so applying is a part of this Act.
(2) This section has effect subject to
sections 15,
16 and
17.
15—Future modifications of Australian Consumer Law
text
(1) A modification made
by a Commonwealth law to the Australian Consumer Law text after the commencement
of this section does not apply under
section 14 if the
modification is declared by proclamation to be excluded from the operation of
that section.
(2) A proclamation under
subsection (1) only
has effect if it is made within 2 months after the date of the
modification.
(3)
Subsection (1)
ceases to apply to the modification if a further proclamation so
provides.
(4) For the purposes of this section, the date of the modification is the
date on which the Commonwealth Act effecting the modification receives Royal
Assent or the regulation effecting the modification is registered under the
Legislative Instruments Act 2003 of the Commonwealth.
16—Meaning of generic terms used in Australian
Consumer Law
In the Australian Consumer Law (SA)—
court—
(a) in respect of proceedings under section 218 of the Australian
Consumer Law (SA)—means the Magistrates Court; and
(b) in respect of any other proceedings—means the court of this
State having appropriate jurisdiction in relation to the proceedings;
regulator means the Commissioner.
17—Interpretation of Australian Consumer
Law
(1) The Acts
Interpretation Act 1901 of the Commonwealth applies as a law of this
jurisdiction to the Australian Consumer Law (SA).
(2) For the purposes of
subsection (1),
the Commonwealth Act mentioned in that subsection applies as if—
(a) the statutory provisions in the Australian Consumer Law (SA) were a
Commonwealth Act; and
(b) the regulations in the Australian Consumer Law (SA) or
instruments mentioned under that Law were regulations or instruments under a
Commonwealth Act.
(3) The Acts
Interpretation Act 1915 does not apply to—
(a) the Australian Consumer Law (SA); or
(b) any instrument under that Law.
18—Application of Australian Consumer
Law
(1) The Australian
Consumer Law (SA) applies to and in relation to—
(a) persons carrying on business within this jurisdiction; or
(b) bodies corporate incorporated or registered under the law of this
jurisdiction; or
(c) persons ordinarily resident in this jurisdiction; or
(d) persons otherwise connected with this jurisdiction.
(2) Subject to
subsection (1),
the Australian Consumer Law (SA) extends to conduct, and other acts,
matters and things, occurring or existing outside or partly outside this
jurisdiction (whether within or outside Australia).
Division 2—References to Australian Consumer
Law
19—References to Australian Consumer
Law
(1) A reference in
any instrument to the Australian Consumer Law is a reference to the Australian
Consumer Law of any or all of the participating jurisdictions.
(2)
Subsection (1) has
effect except so far as the contrary intention appears in the instrument or the
context of the reference otherwise requires.
20—References to Australian Consumer Laws of other
jurisdictions
(1) This section has effect for the purposes of an Act, a law of this
jurisdiction or an instrument under an Act or such a law.
(2) If a law of a participating jurisdiction other than this jurisdiction
provides that the Australian Consumer Law text as in force for the time being
applies as a law of that jurisdiction, the Australian Consumer Law of that
jurisdiction is the Australian Consumer Law text, applying as a law of that
jurisdiction.
Division 3—Application of Australian Consumer
Law to Crown
21—Division does not apply to
Commonwealth
In this Division, participating jurisdiction or other
jurisdiction does not include the Commonwealth.
22—Application law of this
jurisdiction
The application law of this jurisdiction binds (so far as the legislative
power of Parliament permits) the Crown in right of this jurisdiction and of each
other jurisdiction, so far as the Crown carries on a business, either directly
or by an authority of the jurisdiction concerned.
23—Application law of other
jurisdictions
(1) The application law of each participating jurisdiction other than this
jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown
carries on a business, either directly or by an authority of this
jurisdiction.
(2) If, because of this Part, a provision of the law of another
participating jurisdiction binds the Crown in right of this jurisdiction, the
Crown in that right is subject to that provision despite any prerogative right
or privilege.
24—Activities that are not
business
(1) For the purposes
of
sections 22
and
23, the following
activities do not amount to carrying on a business:
(a) imposing or collecting—
(i) taxes; or
(ii) levies; or
(iii) fees for authorisations;
(b) granting, refusing to grant, revoking, suspending or varying
authorisations (whether or not they are subject to conditions);
(c) a transaction involving—
(i) only persons who are all acting for the Crown in the same right (and
none of whom is an authority of a State); or
(ii) only persons who are all acting for the same authority of a State;
or
(iii) only the Crown in right of a State and 1 or more non-commercial
authorities of that State; or
(iv) only non-commercial authorities of the same State;
(d) the acquisition of primary products by a government body under
legislation, unless the acquisition occurs because—
(i) the body chooses to acquire the products; or
(ii) the body has not exercised a discretion that it has under the
legislation that would allow it not to acquire the products.
(2)
Subsection (1)
does not limit the things that do not amount to carrying on a business for the
purposes of
sections 22 and
23.
(3) In this section—
acquisition of primary products by a government body under
legislation includes vesting of ownership of primary products in a
government body by legislation;
authorisation includes a licence, permit or certificate that
allows the holder of the authorisation to supply goods or services;
government body means a State or an authority of a
State;
primary products means—
(a) agricultural or horticultural produce; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
(4) For the purposes of this section, an authority of a State is
non-commercial if—
(a) it is constituted by only 1 person; and
(b) it is neither a trading corporation nor a financial
corporation.
25—Crown not liable to pecuniary penalty or
prosecution
(1) Nothing in the
application law of this jurisdiction makes the Crown in any capacity liable to a
pecuniary penalty or to be prosecuted for an offence.
(2) Without limiting
subsection (1),
nothing in the application law of a participating jurisdiction makes the Crown
in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted
for an offence.
(3) The protection in
subsection (1)
or
(2) does not apply to
an authority of any jurisdiction.
Division 4—Miscellaneous
26—Conferral of functions and powers on certain
bodies
(1) The authorities
and officers of the Commonwealth referred to in the Australian Consumer
Law (SA) have the functions and powers conferred or expressed to be
conferred on them under the Australian Consumer Law (SA).
(2) In addition to the powers mentioned in
subsection (1),
the authorities and officers referred to in that subsection have power to do all
things necessary or convenient to be done in connection with the performance of
the functions and exercise of the powers referred to in that
subsection.
27—No doubling-up of
liabilities
(1) If—
(a) an act or omission is an offence against the Australian Consumer
Law (SA) and is also an offence against an application law of another
participating jurisdiction; and
(b) the offender has been punished for the offence under the application
law of the other jurisdiction,
the offender is not liable to be punished for the offence against the
Australian Consumer Law (SA).
(2) If a person has been ordered to pay a pecuniary penalty under the
application law of another participating jurisdiction, the person is not liable
to a pecuniary penalty under the Australian Consumer Law (SA) in respect of
the same conduct.
28—Certain proceedings prevented in certain
circumstances
If a person expiates an alleged offence against the Australian Consumer Law
(SA), proceedings cannot be started or continued against the person under
section 224 of the Australian Consumer Law (SA) in relation to an alleged
contravention of a provision of the Australian Consumer Law (SA) in respect of
the same conduct.
28A—Minister may require
information
(1) The Minister may, by notice in writing given to a person, require the
person to provide (within the period specified in the notice) any information
that is reasonably necessary for the purpose of determining
whether—
(a) a provision of Part 3-3 of the Australian Consumer Law (SA) is being
or has been complied with; or
(b) the Minister should impose or revoke an interim ban on consumer goods,
or product related services, of a particular kind; or
(c) the Minister should issue a recall notice for consumer goods of a
particular kind; or
(d) the Minister should publish a safety warning notice about consumer
goods and product related services under section 129 of the Australian
Consumer Law (SA).
(2) Subject to
subsection (3),
a person given a notice under this section—
(a) must not refuse or fail to comply with a reasonable requirement under
this section; and
(b) must not knowingly make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of a
particular) in an answer given or information provided under this
section.
Maximum penalty: $20 000.
(3) A person is not
required to provide information under this section if the provision of the
information would result in or tend towards self-incrimination.
28B—Minister to publish certain notices in
Gazette
(1) If, under the
Australian Consumer Law (SA), the Minister publishes a written notice on the
Internet, the Minister must, as soon as reasonably practicable after the
publication, publish the notice in the Gazette.
(2) A failure of the Minister to publish a notice in the Gazette as
required under
subsection (1) does
not affect the validity of a notice published on the Internet.
28C—Cost of testing
(1) If, as the result of an examination, analysis or test of consumer
goods, or product related services, conducted under this Act, the
Minister—
(a) imposes an interim ban on the goods or services; or
(b) issues a recall notice for the goods,
the Minister may recover as a debt from a manufacturer or supplier of the
goods or from a supplier of the services the reasonable cost of any such
examination, analysis or test.
(2) If, as the result of an examination, analysis or test of consumer
goods, or product related services, conducted under this Act—
(a) the goods are found not to comply with an applicable safety standard;
or
(b) the services are found not to comply with an applicable safety
standard,
the Minister may recover as a debt from a manufacturer or supplier of the
goods or from a supplier of the services the reasonable cost of any such
examination, analysis or test.
(3) If a person provides (in contravention of this Act) materially
inaccurate information in relation to consumer goods or product related
services, the Minister may recover as a debt from that person the reasonable
cost of any examination, analysis or test carried out for the purpose of testing
the accuracy of the information.
(4) The court by which a person is convicted of an offence against this
Act may, on the application of the Minister, order payment of any amount that
the Minister is entitled to recover from the convicted person under this
section.
(5) The Minister
must, before proceeding to recover costs from a person under this section,
supply to the person a statement setting out details of the examination,
analysis or test that was carried out and the costs that were
incurred.
(6) In proceedings for the recovery of the cost of carrying out an
examination, analysis or test to which this section applies, a certificate
apparently signed by the Minister—
(a) certifying that the Minister supplied a statement in accordance with
subsection (5)
on a date specified in the certificate; or
(b) certifying the amount of the costs,
will be accepted, in the absence of proof to the contrary, as proof of the
matter so certified.
8—Amendment
of heading to Part 5
Heading to Part 5—delete "Part 5" and substitute:
Part 4
9—Amendment
of section 34—Correction of errors
Section 34(8)—delete subsection (8)
Part 6—delete the Part
11—Substitution
of heading to Part 7
Heading to Part 7—delete the heading and substitute:
Part 5—Additional consumer protection
provisions
Section 42—delete the section and substitute:
42—Recreational services
(1) Subject to this
section, a term of a contract for the supply of recreational services by a
person (the supplier) to a consumer may exclude, restrict or
modify a guarantee that would otherwise have been implied in the contract under
section 60 or 61 of the Australian Consumer Law.
(2)
Subsection (1)
applies only if—
(a) the exclusion, restriction or modification contained in the term is
limited to excluding, restricting or modifying the liability of the supplier for
any personal injury suffered by the consumer or another person for whom or on
whose behalf the consumer is acquiring the services (a third party
consumer); and
(b) the term contains the prescribed particulars and is in the prescribed
form; and
(c) the term is brought to the attention of the consumer and any third
party consumer prior to the supply of the services; and
(d) the consumer agrees to the term in the prescribed manner;
and
(e) a statement containing any other information prescribed by regulation
is made available to the consumer and any third party consumer in accordance
with the requirements prescribed by regulation.
(3)
Subsection (1)
does not operate to exclude, restrict or modify the liability of the supplier
for damages for any significant personal injury suffered by the consumer or any
third party consumer if it is established (by applying the general principles
set out in section 34 of the Civil
Liability Act 1936) that the reckless conduct of the supplier
caused the injury.
(4) A term of a
contract (including a term that is not set out in the contract but is
incorporated in the contract by another term of the contract) is void if it
purports to indemnify, or has the effect of indemnifying, a person who supplies
recreational services in relation to any liability that may not be excluded,
restricted or modified under this Act or any other Act or law.
(5)
Subsection (4)
does not apply in respect of a contract of insurance.
(6) The Commissioner must publish information setting out the rights of
consumers in relation to contracts for the supply of recreational services on a
website determined by the Commissioner.
(7) In this section—
conduct includes any act or omission;
personal injury means bodily injury and
includes—
(a) mental and nervous shock; and
(b) death;
reckless—a person's conduct is reckless if the
person—
(a) is aware, or should reasonably have been aware, of a significant risk
that his or her conduct could result in personal injury to another;
and
(b) engages in the conduct despite the risk and without adequate
justification;
recreational services means services that consist of
participation in—
(a) a sporting activity or a similar leisure-time pursuit; or
(b) any other activity that—
(i) involves a significant degree of physical exertion or physical risk;
and
(ii) is undertaken for the purposes of recreation, enjoyment or
leisure;
significant means not nominal, trivial or minor.
13—Repeal
of heading to Part 8
Heading to Part 8—delete the heading
14—Repeal
of heading to Part 8A
Heading to Part 8A—delete the heading
15—Amendment
of heading to Part 9
Heading to Part 9—delete "Part 9" and substitute:
Part 6
Part 10—delete the Part
17—Amendment
of heading to Part 11
Heading to Part 11—delete "Part 11" and substitute:
Part 7
18—Amendment
of section 76—Conduct of legal proceedings on behalf of
consumers
Section 76(1)—after "this Act" insert:
(other than the Australian Consumer Law (SA))
19—Amendment
of section 78—Entry and inspection
Section 78(1)—delete subsection (1) and substitute:
(1) For the purposes of this Act or any related Act, an authorised officer
may at any reasonable time—
(a) enter and search any premises; and
(b) stop, enter and search any vessel or vehicle; and
(c) open any container, package or other item found in the premises,
vessel or vehicle; and
(d) make any inspection; and
(e) conduct any analysis or test; and
(f) take any samples; and
(g) examine, copy and take extracts from any books or documents;
and
(h) take any books or documents; and
(i) seize and remove anything that constitutes evidence of an offence
against this Act or a related Act; and
(j) on payment or tender of a reasonable price for any goods found in any
premises, vessel or vehicle—remove the goods from the premises, vessel or
vehicle; and
(k) take photographs, films or video recordings; and
(l) take measurements and make notes; and
(m) give directions reasonably required in connection with the exercise of
a power conferred by any of the above paragraphs or otherwise in connection with
the administration, operation or enforcement of this Act or a related
Act.
20—Insertion
of sections 78B and 78C
After section 78A insert:
78B—Dealing with goods bought or
seized
(1) If goods are examined, analysed or tested under this Division, the
Minister must—
(a) if the goods were seized and removed under this Division; or
(b) if the goods were purchased and removed under this Division and the
examination, analysis or test leads to the institution of proceedings for an
offence against this Act,
by notice in writing served on the person who is the owner (or apparent
owner) of the goods at the person's address last known to the Minister, inform
the person of the results of the examination, analysis or test.
(2) If proceedings for an offence against this Act are instituted against
a person as a result of the examination, analysis or test, the Minister must, if
it is reasonably practicable in the circumstances, allow the person to have the
goods examined, analysed or tested on the person's own behalf.
(3) The Minister must
inform a person from whom goods were seized under this Division, by notice in
writing served on the person at the person's address last known to the Minister,
if—
(a) proceedings are not instituted for an offence against this Act in
relation to the goods within 3 months of their seizure; or
(b) proceedings are instituted within that period but the defendant is not
subsequently convicted,
and, on receiving such notice, the person is entitled—
(c) to recover the goods; or
(d) if the goods have been destroyed or damaged, or have
deteriorated—to recover from the Minister as a debt the market value of
the goods at the time of their seizure.
(4) If the goods have
not been recovered by the person within 12 months after service of the
notice under
subsection (3), the
Minister may dispose of the goods as the Minister thinks fit.
(5) If goods are seized and removed and the person from whom the goods
were seized is convicted of an offence against this Act in relation to the
goods, the court convicting the person may, in addition, order that the goods be
forfeited to the Crown.
78C—Embargo notices
(1) This section applies if—
(a) an authorised officer is authorised to seize any record, device or
other thing under this Division; and
(b) the record, device or other thing cannot, or cannot readily, be
physically seized and removed or stored.
(2) An authorised officer may issue an embargo notice under this
section.
(3) An embargo notice is a notice forbidding the use, movement, sale,
leasing, transfer, deletion of information from or other dealing with the
record, device or other thing, or any part of it, without the written consent of
an authorised officer.
(4) The embargo notice must—
(a) contain the particulars required by the regulations; and
(b) list the activities that it forbids; and
(c) set out a copy of
subsection (9).
(5) On issuing an embargo notice, an authorised officer
must—
(a) cause a copy of the notice to be served on the owner of the record,
device or other thing; or
(b) if that person cannot be located after all reasonable steps have been
taken to do so, affix a copy of the notice to the record, device or other thing
in a prominent position.
(6) A person must
not knowingly do anything that is forbidden by an embargo notice.
Maximum penalty: $10 000.
(7) A person must not instruct or request another person to do anything
that the first mentioned person knows is forbidden by an embargo
notice.
Maximum penalty: $10 000.
(8) It is a defence to a prosecution for an offence against
subsection (6)
to establish that the person charged—
(a) moved the record, device or other thing, or part of it, for the
purpose of protecting or preserving it; and
(b) notified the authorised officer who issued the embargo notice of the
move, and of the new location of the record, device or other thing or part of
it, within 48 hours after the move.
(9) A person on
whom an embargo notice has been served must take reasonable steps to prevent
another person from doing anything forbidden by the embargo notice.
Maximum penalty: $10 000.
(10) Despite anything to the contrary in any other Act or at law, a sale,
lease, transfer or other dealing with a record, device or other thing, or part
of it, in contravention of this section is void.
21—Amendment
of section 79—Assurances
Section 79(1)—after "this Act" insert:
(other than the Australian Consumer Law (SA))
Before section 83 insert:
82A—Application of Division
This Division does not apply in relation to conduct that constitutes or
would constitute a contravention of a provision of the Australian Consumer Law
(SA).
23—Amendment
of section 83—Injunctions
Section 83(2)—delete "(other than section 57)"
Section 84—delete the section
25—Amendment
of section 85—Orders for compensation
Section 85(3) and (4)—delete subsections (3) and (4) and
substitute:
(3) An application under subsection (2) may be commenced at any time
within 3 years after the day on which the cause of action arose.
Before section 87 insert:
86A—Application of Division
This Division does not apply in relation to conduct that constitutes or
would constitute a contravention of a provision of the Australian Consumer Law
(SA) or proceedings relating to such conduct.
27—Amendment
of section 91—Evidentiary provisions
Section 91(3) and (4)—delete subsections (3) and (4)
28—Amendment
of section 91A—Public warning statements
Section 91A—after subsection (2) insert:
(3) A public statement may not be made under subsection (1) about the
conduct of a person if a public warning notice could be issued under
section 223 of the Australian Consumer Law (SA) relating to the same
conduct.
29—Amendment
of section 97—Regulations
Section 97(2) and (3)—delete subsections (2) and (3) and
substitute:
(2) Without limiting
the generality of subsection (1), the regulations may—
(a) be of general or limited application; and
(b) confer powers or impose duties in connection with the regulations on
the Minister, the Commissioner or an authorised officer; and
(c) exempt a specified person or class of persons, or a specified
transaction or class of transactions, from compliance with this Act or a
specified provision of this Act, either absolutely or on conditions or subject
to limitations; and
(d) make different provision according to the classes of persons, or the
matters or circumstances, to which they are expressed to apply; and
(e) prescribe codes of practice to be complied with by traders;
and
(f) incorporate, adopt, apply or make prescriptions by reference to, with
or without modifications, any document formulated or published by any body or
authority as in force at a particular time or from time to time; and
(g) make provisions
of a saving or transitional nature—
(i) consequent on the amendment of this Act by a relevant Act;
or
(ii) relevant to the interaction between this Act and a relevant
Commonwealth Act; and
(h) fix expiation fees, not exceeding $1 200, for alleged offences
against this Act or the regulations; and
(i) impose penalties not exceeding $2 500 for contravention of, or failure
to comply with, a regulation.
(3) A provision of
a regulation made under
subsection (2)(g)
may, if the regulation so provides, take effect from the commencement of a
relevant Act or relevant Commonwealth Act or from a later day.
(4) In this section—
relevant Act means the Statutes
Amendment and Repeal (Australian Consumer Law) Act 2010;
relevant Commonwealth Act means—
(a) the Trade Practices Amendment (Australian Consumer Law) Act (No 2)
2010 of the Commonwealth; or
(b) any other Act of the Commonwealth relevant to the interaction between
this Act and the Competition and Consumer Act.
An assurance in connection with a matter in relation to which the
Commissioner has a power or function under Part 10 of the Fair
Trading Act 1987 included in the register of assurances maintained
under section 80 of that Act immediately before the commencement of
section 16 of this
Act will be taken to be an undertaking for the purposes of section 218 of
the Australian Consumer Law (SA) accepted by the Commissioner in connection with
the relevant matter.
Part 3—Amendment
of Statutes Amendment and Repeal (Fair Trading)
Act 2009
31—Variation
of section 11—Amendment of section
3—Interpretation
Section 11(1)—delete subsection (1)
Section 34—delete the section
Section 36—delete the section
Part 4—Repeal
of Fair Trading (Telemarketing) Amendment
Act 2009
34—Repeal
of Fair Trading (Telemarketing) Amendment Act
2009
The Fair
Trading (Telemarketing) Amendment Act 2009 is repealed.
Part 5—Repeal
of Manufacturers Warranties
Act 1974
35—Repeal
of Manufacturers Warranties
Act 1974
The Manufacturers
Warranties Act 1974 is repealed.
Part 6—Repeal
of Trade Standards
Act 1979
36—Repeal
of Trade Standards
Act 1979
The Trade
Standards Act 1979 is repealed.