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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Fair Trading Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Fair Trading Act 1987 No 68 2
4 Amendment of other Acts 2
Schedule 1 Amendment of Fair Trading Act 1987 3
Schedule 2 Amendment of other Acts 10
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Fair Trading Amendment Bill 2004
Act No , 2004
An Act to amend the Fair Trading Act 1987 to make further provision with
respect to the powers of investigators, the exchange of information and the
regulation of pyramid selling schemes; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Fair Trading Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Fair Trading Amendment Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Fair Trading Act 1987 No 68
The Fair Trading Act 1987 is amended as set out in Schedule 1.
4 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that
Schedule.
Page 2
Fair Trading Amendment Bill 2004
Amendment of Fair Trading Act 1987 Schedule 1
Schedule 1 Amendment of Fair Trading Act 1987
(Section 3)
[1] Section 9A
Insert after section 9:
9A Exchange of information
(1) The Director-General may enter into an arrangement (an
information sharing arrangement) with a relevant agency
for the purposes of sharing or exchanging information held by
the Director-General and the agency.
(2) The information to which an information sharing arrangement
may relate is limited to the following:
(a) information concerning investigations, law
enforcement, assessment of complaints, licensing or
disciplinary matters,
(b) probity assessments and reference checks concerning
persons who provide, or propose to provide, goods or
services to consumers,
(c) any other information affecting the interests of
consumers.
(3) Under an information sharing arrangement, the Director-
General and the relevant agency are, despite any other Act or
law of the State, authorised:
(a) to request and receive information held by the other
party to the arrangement, and
(b) to disclose information to the other party,
but only to the extent that the information is reasonably
necessary to assist in the exercise of functions under this Act
(or any other Act administered by the Minister for Fair
Trading, whether solely or jointly with another Minister) or
the functions of the relevant agency concerned.
(4) The Director-General may also (whether as part of an
information sharing arrangement or otherwise):
(a) refer any matter (including any complaint) with respect
to fair trading or that affects the interests of consumers
to a fair trading agency or law enforcement agency, and
(b) receive any such matter from a fair trading agency or
law enforcement agency, and
Page 3
Fair Trading Amendment Bill 2004
Schedule 1 Amendment of Fair Trading Act 1987
(c) conduct a joint investigation into any such matter with
a fair trading agency or law enforcement agency.
(5) Any such fair trading agency or law enforcement agency is,
despite any other Act or law of the State, authorised to refer
such a matter to the Director-General or to conduct an
investigation into the matter jointly with the Director-
General.
(6) This section does not limit:
(a) the functions that may be exercised by the Director-
General under section 9, or
(b) the operation of any other Act under which a relevant
agency is authorised or required to disclose information
to another person or body.
(7) In this section:
fair trading agency means an agency of the State, or of the
Commonwealth, another State or Territory or an overseas
jurisdiction, that exercises functions under an enactment with
respect to fair trading.
law enforcement agency means:
(a) NSW Police or the police force of another State or
Territory or of an overseas jurisdiction, or
(b) the Australian Federal Police, or
(c) the New South Wales Crime Commission, or
(d) the Australian Crime Commission, or
(e) any other authority or person responsible for the
investigation or prosecution of offences against the
laws of the State or of the Commonwealth, another
State or Territory or an overseas jurisdiction.
relevant agency means:
(a) a fair trading agency, or
(b) a law enforcement agency, or
(c) any other agency of the State or of the Commonwealth,
another State or Territory or an overseas jurisdiction, or
(d) any other person or body that exercises functions, in the
public interest, that involve protecting the interests of
consumers.
Page 4
Fair Trading Amendment Bill 2004
Amendment of Fair Trading Act 1987 Schedule 1
[2] Section 18 Office and identification of investigator
Insert ", 19A" after "section 19" in section 18 (2).
[3] Section 19A
Insert after section 19:
19A Powers of search and seizure under search warrant
(1) In this section:
authorised justice means an authorised justice within the
meaning of the Search Warrants Act 1985.
place includes a vehicle, vessel or aircraft.
(2) An investigator may apply to an authorised justice for the
issue of a search warrant if the investigator believes on
reasonable grounds that there is evidence of a contravention
of a provision of this Act on any place or land.
(3) An authorised justice to whom such an application is made
may, if satisfied that there are reasonable grounds for doing
so, issue a search warrant authorising any investigator:
(a) to enter the place or land specified in the warrant, and
(b) to search for evidence of a contravention of a provision
of this Act, and
(c) to exercise the powers of an investigator under
subsection (4).
(4) An investigator executing a search warrant issued under this
section may:
(a) examine anything (whether or not specified in the
warrant) that the investigator believes on reasonable
grounds may provide evidence of a contravention of a
provision of this Act, and
(b) seize anything (whether or not specified in the warrant)
that the investigator believes on reasonable grounds is
connected with a contravention of a provision of this
Act.
(5) The power to seize anything that is connected with a
contravention of a provision of this Act includes a power to
seize anything that will provide evidence of the
contravention.
Page 5
Fair Trading Amendment Bill 2004
Schedule 1 Amendment of Fair Trading Act 1987
(6) Anything seized by an investigator under the authority of a
search warrant issued under this section must be returned to
the person who had lawful possession of the thing before it
was seized if its retention as evidence in proceedings for an
offence against this or any other Act is not required.
(7) Part 3 of the Search Warrants Act 1985 applies to a search
warrant issued under this section.
(8) Nothing in this section limits any of the other functions that
may be exercised by an investigator under this Division.
[4] Section 56 Pyramid selling etc
Omit the section.
[5] Part 5D
Insert after Part 5C:
Part 5D Pyramid selling
60S Definitions
In this Part:
new participant, in a pyramid selling scheme, includes a
person who has applied, or been invited, to participate in the
scheme.
participant in a pyramid selling scheme means a person who
participates in the scheme.
participate in a pyramid selling scheme means:
(a) establish or promote the scheme (whether alone or
together with another person), or
(b) take part in the scheme in any capacity (whether or not
as an employee or agent of a person who establishes or
promotes the scheme, or otherwise takes part in the
scheme).
Page 6
Fair Trading Amendment Bill 2004
Amendment of Fair Trading Act 1987 Schedule 1
payment, to a person or received by a person, means:
(a) the provision of a financial or non-financial benefit to
or for the benefit of the person, or
(b) the provision of a financial or non-financial benefit
partly to or for the benefit of the person, and partly to or
for the benefit of someone else.
pyramid selling scheme--see section 60T.
60T Meaning of "pyramid selling scheme"
(1) For the purposes of this Part, a pyramid selling scheme is a
scheme that has both of the following characteristics:
(a) to take part in the scheme, some or all new participants
must make a payment (a participation payment) to
another participant or participants in the scheme,
(b) the participation payments are entirely or substantially
induced by the prospect held out to new participants
that they will be entitled to a payment (a recruitment
payment) in relation to the introduction to the scheme
of further new participants.
(2) A scheme may be a pyramid selling scheme:
(a) no matter who holds out to new participants the
prospect of entitlement to recruitment payments, and
(b) no matter who is to make recruitment payments to new
participants, and
(c) no matter who is to make introductions to the scheme of
further new participants.
(3) A scheme may be a pyramid selling scheme even if it has any
or all of the following characteristics:
(a) the participation payments may (or must) be made after
the new participants begin to take part in the scheme,
(b) making a participation payment is not the only
requirement for taking part in the scheme,
(c) the holding out of the prospect of entitlement to
recruitment payments does not give any new participant
a legally enforceable right,
(d) arrangements for the scheme are not recorded in writing
(whether entirely or partly),
Page 7
Fair Trading Amendment Bill 2004
Schedule 1 Amendment of Fair Trading Act 1987
(e) the scheme involves the marketing of goods or services
(or both).
(4) In deciding whether a scheme that involves the marketing of
goods or services (or both) is a pyramid selling scheme, a
court may have regard to the following matters in working out
whether participation payments under the scheme are entirely
or substantially induced by the prospect held out to new
participants of entitlement to recruitment payments:
(a) the extent to which the participation payments bear a
reasonable relationship to the value of the goods or
services that participants are entitled to be supplied
under the scheme (as assessed, if appropriate, by
reference to the price of comparable goods or services
available elsewhere),
(b) the emphasis given in the promotion of the scheme to
the entitlement of participants to the supply of goods
and services by comparison with the emphasis given to
their entitlement to recruitment payments.
(5) Subsection (4) does not limit the matters to which the court
may have regard in deciding whether participation payments
are entirely or substantially induced by the prospect held out
to new participants of entitlement to recruitment payments.
60U Prohibition on participating in pyramid selling scheme
(1) A person must not participate in a pyramid selling scheme.
(2) A person must not induce, or attempt to induce, a person to
participate in a pyramid selling scheme.
[6] Sections 62 (6), 65 (1) (a), 66 (1) (a) (i), 67, 71 (1) and 72 (1)(4)
Insert ", 5D" after "5C" wherever occurring.
[7] Sections 68 (1) and 69
Omit "or 5C" wherever occurring. Insert instead ", 5C or 5D".
Page 8
Fair Trading Amendment Bill 2004
Amendment of Fair Trading Act 1987 Schedule 1
[8] Section 71 Defences
Omit section 71 (1) (a) and (b). Insert instead:
(a) that the contravention in respect of which the
proceedings were instituted was caused by a reasonable
mistake of fact, including a mistake of fact caused by
reasonable reliance on information supplied by another
person, or
[9] Section 71 (2)
Omit "(b) and (c)".
[10] Schedule 5 Savings and transitional provisions
Insert after clause 11D:
11E Fair Trading Amendment Act 2004
(1) In this clause, amending Act means the Fair Trading
Amendment Act 2004.
(2) Part 5D, as inserted by the amending Act, applies only to
conduct engaged in after the commencement of that Part.
(3) Section 71 (1) (a), as substituted by the amending Act, applies
only in relation to a contravention that occurs after the
commencement of that amendment.
[11] Schedule 5, clause 12 (1)
Insert at the end of the subclause:
Fair Trading Amendment Act 2004
Page 9
Fair Trading Amendment Bill 2004
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
[1] Schedule 2 Search warrants under other Acts
Insert in alphabetical order:
Fair Trading Act 1987, section 19A
[2] Schedule 4 Amendments of other Acts and instrument
Insert after Schedule 4.33:
4.33A Fair Trading Act 1987 No 68
[1] Section 19A Powers of search and seizure under search
warrant
Omit the definition of authorised justice from section 19A (1).
Insert instead:
authorised officer has the same meaning as in the Law
Enforcement (Powers and Responsibilities) Act 2002.
[2] Section 19A (2) and (3)
Omit "authorised justice" wherever occurring.
Insert instead "authorised officer".
[3] Section 19A (7)
Omit "Part 3 of the Search Warrants Act 1985".
Insert instead "Division 4 of Part 5 of the Law Enforcement (Powers
and Responsibilities) Act 2002".
Page 10
Fair Trading Amendment Bill 2004
Amendment of other Acts Schedule 2
2.2 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in alphabetical order of Acts in the definition of search warrant:
section 19A of the Fair Trading Act 1987,
Page 11
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