South Australian Numbered Acts South Australian Numbered Acts7—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.