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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 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Fair Trading Act 1987 No 68 2
4 Amendment of Motor Vehicle Repairs Act 1980 No 71 2
5 Repeal of Act 2
Schedule 1 Amendment of Fair Trading Act 1987 3
Schedule 2 Amendment of Motor Vehicle Repairs Act 1980 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, , 2006
New South Wales
Fair Trading Amendment Bill 2006
Act No , 2006
An Act to amend the Fair Trading Act 1987 to make further provision with respect
to the extraterritorial application of that Act, advertising, false billing, the powers of
the Commissioner for Fair Trading and Advisory Councils; 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 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Fair Trading Amendment Act 2006.
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 Motor Vehicle Repairs Act 1980 No 71
The Motor Vehicle Repairs Act 1980 is amended as set out in
Schedule 2.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Fair Trading Amendment Bill 2006
Amendment of Fair Trading Act 1987 Schedule 1
Schedule 1 Amendment of Fair Trading Act 1987
(Section 3)
[1] Section 5A
Insert after section 5:
5A Extraterritorial application
(1) This Act is intended to have extraterritorial application in so far
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.
[2] Section 19A Powers of search and seizure under search warrant
Insert after section 19A (6):
(6A) The Director-General may order that anything seized by an
investigator under the authority of a search warrant issued under
this section be sold, destroyed or otherwise disposed of, if:
(a) the thing is no longer required to be retained as evidence in
proceedings for an offence against this or any other Act,
and
(b) the person who had lawful possession of the thing before it
was seized cannot be found or does not wish to have the
thing returned.
(6B) If the thing is disposed of by way of sale, the proceeds of sale are
to be paid to the Treasurer for payment into the Consolidated
Fund.
[3] Section 20 Power to obtain information, documents and evidence
Insert at the end of section 20 (1) (b):
, or
(c) a matter that is the subject of a complaint received by the
Director-General under section 9 (1) (c), or
(d) a matter that is the subject of an investigation by the
Director-General under section 9 (2).
Page 3
Fair Trading Amendment Bill 2006
Schedule 1 Amendment of Fair Trading Act 1987
[4] Section 20 (2)
Insert "or the Director-General" after "An investigator".
[5] Section 20 (2) (a) and (b)
Insert "or the Director-General" after "an investigator" wherever occurring.
[6] Section 20 (6) and (7)
Insert after section 20 (5):
(6) Despite section 8 of this Act, the Director-General may only
delegate his or her functions under this section to a person who is
an officer.
(7) If requested to do so by a person required to comply with a notice
given under this section by a delegate of the Director-General, the
delegate must provide the person with evidence of that person's
identity and evidence of the delegation that enables the delegate
to give the notice.
[7] Section 25B Membership
Insert "not less than 6, but not more than" before "16 members" in
section 25B (1).
[8] Section 25B (2) (b)
Insert "not less than 5, but not more than" before "15 persons".
[9] Part 2, Division 6, heading
Omit "Trade" from the heading to Division 6 of Part 2.
Insert instead "Vehicle Industry".
[10] Part 2, Division 6
Omit "Trade" wherever occurring from the Division.
Insert instead "Vehicle Industry".
[11] Section 25E Membership
Insert "not less than 6, but not more than" before "16 members" in
section 25E (1).
[12] Section 25E (2) (b)
Insert "not less than 5, but not more than" before "15 other persons".
Page 4
Fair Trading Amendment Bill 2006
Amendment of Fair Trading Act 1987 Schedule 1
[13] Section 25H Membership
Insert "not less than 6, but not more than" before "16 members" in
section 25H (1).
[14] Section 25H (2) (b)
Insert "not less than 5, but not more than" before "15 persons".
[15] Section 25N Membership
Insert "not less than 6, but not more than" before "16 members" in
section 25N (1).
[16] Section 25N (2) (b)
Insert "not less than 5, but not more than" before "15 persons".
[17] Section 58 Assertion of right to payment for unsolicited goods or
services, or for making entry in directory
Omit "and not stating as prominently (or more prominently) that no claim is
made to the payment, or to payment of the price or charge, as the case may be"
from section 58 (5) (e).
Insert instead ", and the invoice or document does not contain a warning
statement complying with subsection (5A)".
[18] Section 58 (5A)
Insert after section 58 (5):
(5A) For the purposes of subsection (5) (e), a warning statement must:
(a) be printed in upper case and a type not smaller than 18
point and be located at the top of the first page of the
invoice or document, and
(b) state "THIS IS NOT A BILL. YOU ARE NOT
REQUIRED TO PAY ANY MONEY.".
Page 5
Fair Trading Amendment Bill 2006
Schedule 1 Amendment of Fair Trading Act 1987
[19] Section 58A
Insert after section 58:
58A Assertion of right to payment for unauthorised advertisements
(1) A person must not, in trade or commerce, assert a right to
payment from another person for an advertisement relating to the
other person, or the profession, business, trade or occupation of
the other person placed in a publication, unless the person
asserting the right knows, or has reasonable cause to believe, that
the other person has authorised in writing the placement of the
advertisement.
(2) A person is not liable to make any payment to another person, and
is entitled to recover by action in a court of competent jurisdiction
against another person any payment made by the person to the
other person, in full or part satisfaction of a charge for the
placement of any such advertisement unless the first-mentioned
person has authorised in writing the placement of the
advertisement.
(3) For the purposes of this section, a person is taken to assert a right
to a payment if that person:
(a) makes a demand for the payment or asserts a present or
prospective right to the payment, or
(b) threatens to bring any legal proceedings with a view to
obtaining the payment, or
(c) places or causes to be placed on a list of debtors or
defaulters the name of the person against whom the right
to payment is being asserted, or threatens to do so, with a
view to obtaining the payment, or
(d) invokes or causes to be invoked any other collection
procedure, or threatens to do so, with a view to obtaining
the payment, or
(e) sends any invoice or other document stating the amount of
the payment or setting out the charge for the placing of the
advertisement, and the invoice or document does not
contain a warning statement complying with subsection
(4).
(4) For the purposes of subsection (3) (e), a warning statement must:
(a) be printed in upper case and a type not smaller than 18
point and be located at the top of the first page of the
invoice or document, and
Page 6
Fair Trading Amendment Bill 2006
Amendment of Fair Trading Act 1987 Schedule 1
(b) state "THIS IS NOT A BILL. YOU ARE NOT
REQUIRED TO PAY ANY MONEY.".
(5) For the purposes of this section, a person is taken to have given
written authorisation for the placement of an advertisement only
if:
(a) a document authorising the placing of the advertisement
has been signed by the person or by another person (not
being the publisher) authorised by that person, and
(b) a copy of the signed document has been given to the person
before the right to payment of a charge is asserted, and
(c) the document specifies:
(i) the name of the publication, the area of circulation
of the publication and the total number of copies of
the publication to be circulated, and
(ii) the name and business address of the publisher, and
(iii) the name and address of the person on whose behalf
the publication is published, and
(iv) particulars of the advertisement, and
(v) the date or dates on which the advertisement is to
appear in the publication, and
(vi) the amount of the charge for the placement of the
advertisement or the basis on which the charge is, or
is to be, calculated.
(6) For the purposes of this section, an invoice or other document
purporting to have been sent by or on behalf of a person is taken
to have been sent by the person unless the contrary is established.
(7) This section does not apply to a publication that is published by
a person if the person is:
(a) a large proprietary company or a subsidiary of such a
company or a listed corporation or a subsidiary of such a
corporation, or
(b) the publisher of any publication that has an audited
circulation of 10, 000 copies or more per week, or a person
which is a related body corporate to such a person, or
(c) a servant of the Crown, a body corporate which represents
the Crown or a local council, or
(d) any other person prescribed by the regulations.
Page 7
Fair Trading Amendment Bill 2006
Schedule 1 Amendment of Fair Trading Act 1987
(8) In a proceeding against a person in respect of a contravention of
this section, the burden lies on the defendant of proving that the
defendant knew or had reasonable cause to believe that the other
person had authorised the placement of the advertisement.
(9) In this section:
audited circulation in relation to a publication, means the
circulation of that publication as confirmed by the most recent
audit of the publication by a body approved by the
Director-General.
large proprietary company has the same meaning as in the
Corporations Act 2001 of the Commonwealth.
listed corporation has the same meaning as in the Corporations
Act 2001 of the Commonwealth.
subsidiary has the same meaning as in the Corporations Act 2001
of the Commonwealth.
(10) This section does not apply in relation to the making of an entry
in a directory.
[20] Section 93
Insert after section 92:
93 Disposal of property
(1) The Director-General may order that anything that the
Director-General has obtained in the course of an investigation
under this Act (other than anything seized by an investigator
under the authority of a search warrant issued under section 19A)
be sold, destroyed or otherwise disposed of, if:
(a) the thing is not required to be retained as evidence in
proceedings for an offence against this or any other Act,
and
(b) the person who had lawful possession of the thing before it
came into the Director-General's possession cannot be
found or does not wish to have the thing returned.
(2) If the thing is disposed of by way of sale, the proceeds of sale are
to be paid to the Treasurer for payment into the Consolidated
Fund.
Page 8
Fair Trading Amendment Bill 2006
Amendment of Fair Trading Act 1987 Schedule 1
[21] Schedule 5 Savings and transitional provisions
Insert in appropriate order in the Schedule:
11G Fair Trading Amendment Act 2006
(1) A person who, immediately before the commencement of
Schedule 1 [10] to the Fair Trading Amendment Act 2006, held
office as a member of the Motor Trade Advisory Council ceases
to hold office on that commencement.
(2) A person who ceases to hold office because of this clause is not
entitled to any remuneration or compensation because of so
ceasing to hold office.
(3) A reference in any Act (other than this Act) or in any instrument
made under any Act to the Motor Trade Advisory Council is to
be read as a reference to the Motor Vehicle Industry Advisory
Council established under this Act.
[22] Schedule 5
Insert at the end of clause 12 (1) to the Schedule:
Fair Trading Amendment Act 2006 (but only to the extent that it
amends this Act)
Page 9
Fair Trading Amendment Bill 2006
Schedule 2 Amendment of Motor Vehicle Repairs Act 1980
Schedule 2 Amendment of Motor Vehicle Repairs
Act 1980
(Section 4)
[1] Section 4 Definitions
Omit the definitions of committee, Council and member from section 4 (1).
[2] Sections 9, 10, 13 and 84 (1) (b) and (c) and Schedule 1
Omit the provisions.
[3] Section 70
Omit the section. Insert instead:
70 Delegation
The Authority may delegate the exercise of any function of the
Authority under this or any other Act (other than this power of
delegation) to any person employed under Chapter 1A of the
Public Sector Employment and Management Act 2002 in the
Government Service to enable the Authority to exercise its
functions.
[4] Section 84 Protection from liability
Omit "member," from section 84 (1).
[5] Section 84 (3)
Omit "member or other" wherever occurring.
[6] Schedule 5 Savings and transitional provisions
Insert at the end of clause 1 (1) to the Schedule:
Fair Trading Amendment Act 2006 (but only to the extent that it
amends this Act)
Page 10
Fair Trading Amendment Bill 2006
Amendment of Motor Vehicle Repairs Act 1980 Schedule 2
[7] Schedule 5, Part 5
Insert at the end of the Schedule:
Part 5 Provision consequent on enactment of Fair
Trading Amendment Act 2006
14 Provision consequent on Fair Trading Amendment Act 2006
(1) In this clause, former Council means the Council of the Motor
Vehicle Repair Industry Authority as constituted under section 9
immediately before the repeal of that section by the Fair Trading
Amendment Act 2006.
(2) A person who, immediately before the repeal of section 9 of this
Act by the Fair Trading Amendment Act 2006, held office as a
member of the former Council ceases to hold office on that
repeal.
(3) A person who ceases to hold office because of this clause is not
entitled to any remuneration or compensation because of so
ceasing to hold office.
(4) Subject to the regulations, a reference in any Act (other than this
Act) or in any instrument made under any Act to the former
Council is to be read as a reference to the Motor Vehicle Industry
Advisory Council established under the Fair Trading Act 1987.
Page 11
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