New South Wales Bills Explanatory Notes New South Wales Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
This Bill is cognate with the Fair Trading Tribunal Bill 1998.
The Bill proposes:
(a) to repeal the Consumer Claims Tribunals Act 1987 and phase out the
operation of the tribunals operating under that Act, and
( b ) to amend the Home Building Act 1989, to include in it provision for
remedies in the nature of building claims currently able to be brought
under the Consumer Claims Tribunals Act 1987. and
( c ) to make amendments to other Acts as a consequence of the enactment
of the Bill.
* Amended in committee--see table at end of volume.
Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 defines consumer, consumer claim and other words and
expressions used in the proposed Act. Tribunal is defined to mean the Fair
Trading Tribunal (that is, the tribunal to be established by the proposed Fair
Trading Tribunal Act 1998).
Clause 4 creates a presumption in favour of a person alleging to be a
consumer for the purposes of the proposed Act.
Clause 5 provides that notes to the text of the proposed Act do not form part
of the proposed Act.
Part 2
Consumer claims
Clause 6 provides that a consumer may apply to the Tribunal to have a
consumer claim determined.
Clause 7 invests the Tribunal with jurisdiction to hear and determine any
consumer claim referred to it under the proposed Act. In general, it will not
have jurisdiction to hear a consumer claim referred to it more than 3 years
before the date on which the goods or services involved in the claim were
supplied (or were contracted to be supplied).
Clause 8 describes the orders the Tribunal can make in determining a
consumer claim. In addition to being able to make orders for the payment of
money. requiring a party to perform work or relieving a party from being
required to pay a specified sum of money in respect of a supply of goods or
services. the Tribunal will also be able to make orders requiring the delivery.
return or replacement of goods or requiring the supply of services other than
the performance of work.
Clause 9 provides that an order made by the Tribunal under the proposed
Part may be made subject to conditions imposed by the Tribunal.
Clause 10 confers power on the Tribunal to make interim and ancillary
orders in connection with the determination of consumer claims.
Explanatory note page 2
Clause 11 allows the Tribunal, on such conditions as may be appropriate, to
suspend the operation of an order previously made by it.
Clause 12 provides for the application, to orders of the Tribunal under the
proposed Part, of provisions of the Supreme Court Act 1970 concerning the
effect of a judgment against one of several persons having a joint liability.
Clause 13 requires the Tribunal to act fairly and equitably in making any
order under the proposed Part, and specifies the factors that are relevant in
making such orders. One such factor is whether or not there was any material
inequality in bargaining power between the parties to the relevant claim. The
clause also makes provision for the provisions of certain codes of practice to
be taken into account where these are relevant in determining a consumer
claim.
Clause 14 limits the jurisdiction of the Tribunal over consumer claims to
cases where the total amount payable by virtue of a verdict for the claimant
or respondent has a value not exceeding an amount prescribed by the
regulations.
Part 3
Miscellaneous
Clause 15 allows the Chairperson and members of the Fair Trading Tribunal
to furnish reports to appropriate authorities in respect of matters arising under
the administration of the proposed Act or the hearing of consumer claims.
Clause 16 allows the Director-General of the Department of Fair Trading to
compile and maintain a list of suppliers whose activities have come to
unfavourable notice under the proposed Act.
Clause 17 allows the Governor-in-Council to make regulations in aid of the
proposed Act.
Clause 18 repeals the Consumer Claims Tribunals Act 1987.
Clause 19 gives effect to a Schedule of savings and transitional provisions.
Clause 20 gives effect to a Schedule of consequential amendments to other
Acts.
Clause 21 provides for
review of the proposed Act after 5 years.
Schedule 1
Savings and transitional provisions
This Schedule provides for the phasing out of the consumer claims tribunals.
After its commencement, new consumer claims may not be brought before
them. and must be brought before the Fair Trading Tribunal, but pending
claims may be in all respects completed.
Explanatory note page 3
Schedule 2
Consequential amendment of other Acts
This Schedule contains amendments to other Acts as a consequence of the
enactment of the proposed Act. In particular, the Home Building Act 1989 is
amended to include provisions analogous to those of Part 3A of the
Consumer Claims Tribunals Act 1987.
Explanatory note page 4