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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Fair Trading Amendment
(Substantiation of Claims) Bill 2000
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Fair Trading Act 1987 No 68 2
Schedule 1 Amendments 3
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, , 2000
New South Wales
Fair Trading Amendment
(Substantiation of Claims) Bill 2000
Act No , 2000
An Act to amend the Fair Trading Act 1987 to make provision for the
substantiation of claims and representations in certain statements; 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 (Substantiation of Claims) Bill 2000
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Fair Trading Amendment (Substantiation of Claims)
Act 2000.
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.
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Fair Trading Amendment (Substantiation of Claims) Bill 2000
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 21 Inspection of documents by Director-General and others
Omit "section 20" wherever occurring in section 21 (1) and (2).
Insert instead "section 20 or 23A".
[2] Section 22 Preservation of secrecy
Omit "section 20" wherever occurring in section 22 (1) (a), (2) and (4) (a).
Insert instead "section 20 or 23A".
[3] Part 2, Division 3A
Insert after Division 3 of Part 2:
Division 3A Substantiation of claims and representations
23A Power to require substantiation of claims and representations
(1) The Director-General may require a person who, in trade or
commerce, published or caused to be published a statement
promoting, or apparently intended to promote, the supply of
goods or services or the sale or grant of an interest in land, to
substantiate a claim or representation (express or implied) made
in the statement.
(2) Such a requirement is to be made by notice in writing served
on the person.
(3) The notice must:
(a) indicate the claim or representation to which the notice
applies, and
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Fair Trading Amendment (Substantiation of Claims) Bill 2000
Schedule 1 Amendments
(b) require compliance with the notice within a specified
time, and
(c) indicate what the person must do to comply with the
notice (as provided by subsection (4)), and
(d) indicate that it is an offence to fail to comply with the
notice within the required time.
(4) To comply with the notice, the person must within the time
required by the notice:
(a) reply in writing to the Director-General stating whether
or not the person can provide information substantiating
the claim or representation concerned, and
(b) provide to the Director-General such information
substantiating the claim or representation as the person
is reasonably able to provide.
(5) The Director-General may, by a further notice in writing served
on the person, extend or further extend the time within which
the notice must be complied with.
23B Implied representation that goods or services will be able to be
supplied at advertised price
(1) When a person, in trade or commerce, publishes or causes to
be published a statement advertising goods or services for
supply at a specified price, the statement is taken to include a
representation that the person will be able to offer the goods or
services for supply at the advertised price for a period that is,
and in quantities that are, reasonable having regard to the
nature of the market in which the person carries on business
and the nature of the advertisement.
(2) Accordingly, a notice under section 23A can relate to such a
representation.
(3) The representation applies only for the purposes of this
Division.
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Fair Trading Amendment (Substantiation of Claims) Bill 2000
Amendments Schedule 1
(4) The claims and representations to which a notice under section
23A can apply are not limited by this section.
23C Offence of failing to comply with notice
(1) A person who fails to comply with a notice under section 23A
is guilty of an offence.
Maximum penalty: 50 penalty units.
(2) A person who, in purported compliance with a notice under
section 23A, provides any information to the Director-General
that is false or misleading in a material particular is guilty of an
offence.
Maximum penalty: 50 penalty units.
(3) It is a defence to a prosecution under subsection (2) if the
defendant proves that the defendant did not know and could
not reasonably be expected to have known that the information
was false or misleading.
23D Self incrimination
(1) A person is not excused from providing information in
compliance with a notice under section 23A on the ground that
the information may tend to incriminate the person.
(2) Any information provided by a person (whether a natural
person or a corporation) in compliance with a notice under
section 23A is inadmissible in criminal proceedings against the
person other than proceedings for an offence under this
Division.
23E Division does not prevent other action being taken
This Division does not prevent action being taken under any
other provision of this Act or any other law in relation to a
claim or representation made in a published statement.
23F Certain publishers not affected
This Division does not apply to a person whose business it is
to publish or arrange for the publication of advertisements in
respect of the publication of a statement by the person that was
received for publication in the ordinary course of that business.
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Fair Trading Amendment (Substantiation of Claims) Bill 2000
Schedule 1 Amendments
23G Transitional
This Division does not apply to any statement published before
the commencement of this Division.
Page 6
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