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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Franchise Agreements Bill 2011 CONTENTS Part 1 -- Preliminary matters 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Terms used: WA franchise agreement. 3 5. Concurrent operation of laws of other places not affected 4 6. Extra-territorial application 4 Part 2 -- Franchising Code of Conduct (WA) 7. Commonwealth Code applies in WA 5 8. Franchising Code of Conduct (WA), interpretation of 5 9. Contravening Franchising Code of Conduct (WA) 5 Part 3 -- Duties of people involved in franchising 10. Duties are additional 6 11. Duty to act in good faith etc. 6 Part 4 -- Enforcement and remedies 12. Civil monetary penalties 7 13. Injunctions 8 14. Redress orders 9 15. Damages for harm due to contravention of this Act 10 256--1 page i Franchise Agreements Bill 2011 Contents Part 5 -- Annual Review 16. Small Business Development Corporation to report 11 page ii Western Australia LEGISLATIVE COUNCIL (Introduced by Hon Ljiljanna Ravlich, MLC) Franchise Agreements Bill 2011 A Bill for An Act to regulate the conduct of people who are about to enter or who are parties to franchise agreements and for related matters. The Parliament of Western Australia enacts as follows: page 1 Franchise Agreements Bill 2011 Part 1 Preliminary matters s. 1 1 Part 1 -- Preliminary matters 2 1. Short title 3 This is the Franchise Agreements Act 2011. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on the day after that day 9 3. Terms used 10 (1) If a term is given a meaning in the Franchising Code of Conduct 11 (WA), it has the same meaning in this Act, unless the contrary 12 intention appears. 13 (2) In this Act unless the contrary intention appears -- 14 Commissioner has the meaning given to that term by section 6 15 of the Fair Trading Act 2010; 16 Commonwealth Code means the Franchising Code of Conduct 17 set out in the Schedule to the Trade Practices (Industry Codes - 18 Franchising) Regulations 1998 (Commonwealth) as in force 19 from time to time; 20 Franchising Code of Conduct (WA) means the provisions that 21 apply because of section 7; 22 renew, in relation to a current WA franchise agreement, 23 means -- 24 (a) to renew or extend the current agreement, whether or not 25 for the first time and whether or not pursuant to a 26 written agreement by the franchisor to renew or extend 27 the current agreement, and irrespective of whether or not 28 there is a contractual right of renewal or extension, and 29 irrespective of any terms in the WA franchise agreement 30 to the contrary; or page 2 Franchise Agreements Bill 2011 Preliminary matters Part 1 s. 4 1 (b) to enter into a new WA franchise agreement, whether or 2 not pursuant to a written agreement by the franchisor to 3 enter into a new agreement, and irrespective of whether 4 or not there is a contractual right to a new agreement, 5 and irrespective of any terms in the WA franchise 6 agreement to the contrary, under which -- 7 (i) the franchisee under the current agreement is the 8 franchisee under the new agreement; and 9 (ii) the new agreement has effect when the current 10 agreement expires; and 11 (iii) the franchise business conducted under the 12 current agreement continues under the new 13 agreement; 14 WA franchise agreement has the meaning given by section 4. 15 4. Terms used: WA franchise agreement. 16 (1) A franchise agreement (as defined in the Franchising Code of 17 Conduct (WA)) is a WA franchise agreement for the purposes 18 of this Act if the agreement relates to the conduct of a franchise 19 business in, or substantially in, Western Australia. 20 (2) For the purposes of subsection (1), a franchise agreement is a 21 WA franchise agreement -- 22 (a) whether it is entered into before or after this Act 23 commences; and 24 (b) whether it is entered into in or outside Western Australia 25 or the Commonwealth; and 26 (c) even if the law governing it is not the law of Western 27 Australia. 28 (3) This Bill does not apply to agreements which are excluded 29 under sections 5(3)(a) and (b) of the Commonwealth Code. page 3 Franchise Agreements Bill 2011 Part 1 Preliminary matters s. 5 1 5. Concurrent operation of laws of other places not affected 2 This Act is not intended to exclude or limit the concurrent 3 operation of any law of the Commonwealth, another State, a 4 Territory or a place outside the Commonwealth. 5 6. Extra-territorial application 6 This Act, so far as possible, applies to -- 7 (a) acts, transactions and matters done, entered into or 8 occurring outside, or partly outside, Western Australia 9 or Australia in relation to WA franchise agreements; and 10 (b) acts, transactions and matters (wherever done, entered 11 into or occurring) that would, apart from the Act, be 12 subject to the law of the Commonwealth, another State, 13 a Territory or a place outside the Commonwealth. page 4 Franchise Agreements Bill 2011 Franchising Code of Conduct (WA) Part 2 s. 7 1 Part 2 -- Franchising Code of Conduct (WA) 2 7. Commonwealth Code applies in WA 3 The provisions of the Commonwealth Code -- 4 (a) apply as a law of Western Australia; and 5 (b) as so applying, may be referred to as the Franchising 6 Code of Conduct (WA). 7 8. Franchising Code of Conduct (WA), interpretation of 8 (1) The Acts Interpretation Act 1901 (Commonwealth) applies to 9 the Franchising Code of Conduct (WA). 10 (2) The Interpretation Act 1984 does not apply to the Franchising 11 Code of Conduct (WA). 12 9. Contravening Franchising Code of Conduct (WA) 13 (1) A person who propose to be or is a party to a WA franchise 14 agreement must not contravene the Franchising Code of 15 Conduct (WA). 16 (2) A contravention of subsection (1) is not an offence. page 5 Franchise Agreements Bill 2011 Part 3 Duties of people involved in s. 10 1 Part 3 -- Duties of people involved in franchising 2 10. Duties are additional 3 The duties under this Part are in addition to any duties under 4 this or any other law and in addition to any rights or obligations 5 under the WA franchise agreement and apply irrespective of any 6 terms in the WA franchise agreement to the contrary. 7 11. Duty to act in good faith etc. 8 (1) In this section -- 9 act in good faith means to act fairly, honestly, reasonably and 10 cooperatively. 11 (2) A person who proposes to be or is a party to a WA franchise 12 agreement must act in good faith -- 13 (a) in any dealing or negotiation in connection with -- 14 (i) entering into or renewing the agreement; or 15 (ii) the agreement; or 16 (iii) resolving, or attempting to resolve, a dispute 17 relating to the agreement; 18 and 19 (b) when acting under the agreement. 20 (3) A contravention of subsection (2) is not an offence. page 6 Franchise Agreements Bill 2011 Enforcement and Part 4 s. 12 1 Part 4 -- Enforcement and remedies 2 12. Civil monetary penalties 3 (1) If, on an application made by the Commissioner or any other 4 person, the Supreme Court or the District Court is satisfied on 5 the balance of probabilities that a person has, by any act or 6 omission, done any of the following -- 7 (a) contravened this Act; 8 (b) attempted to contravene this Act; 9 (c) aided, abetted, counseled or procured a person to 10 contravene this Act; 11 (d) induced or attempted to induce a person, whether by 12 threats, promises or otherwise, to contravene this Act; 13 (e) been in any way, directly or indirectly, knowingly 14 concerned in, or party to, the contravention by another 15 person of this Act; 16 (f) conspired with others to contravene this Act, 17 the court may order the person to pay to the State a monetary 18 penalty for each act or omission. 19 (2) The court must not order the person to pay a monetary penalty 20 for an act or omission if, under the Competition and Consumer 21 Act 2010 (Commonwealth) or the Fair Trading Act 2010, the 22 person has been ordered to pay a pecuniary penalty for the act 23 or omission. 24 (3) The monetary penalty must be an amount that the court decides 25 is appropriate having regard to all relevant matters including but 26 not limited to these -- 27 (a) the nature and extent of the act or omission concerned; 28 (b) any loss or damage suffered as a result of the act or 29 omission; 30 (c) the circumstances in which the act or omission occurred; page 7 Franchise Agreements Bill 2011 Part 4 Enforcement and s. 13 1 (d) whether the person ordered to pay the penalty has 2 previously been found by a court, in proceedings 3 relating to a contravention of this Act, the Fair Trading 4 Act 2010 or the Commonwealth Code, to have done any 5 similar act or made any similar omission. 6 (4) The monetary penalty ordered to be paid by a person must not 7 exceed -- 8 (a) if the person is a body corporate, $100 000 for each act 9 or omission; 10 (b) if the person is not a body corporate, $10 000 for each 11 act or omission. 12 (5) An order made under this section is taken to be a monetary 13 judgment for the purposes of the Civil Judgments Enforcement 14 Act 2004 and the Commissioner, or a person authorised to do so 15 by the Treasurer, may take proceedings under that Act on behalf 16 of the State to enforce the order. 17 (6) Any money paid to the State under an order made under this 18 section must be credited to the Consolidated Account. 19 13. Injunctions 20 (1) The Commissioner or any other person may apply to the 21 Supreme Court for an injunction against a person who has, by 22 any act or omission, or would have by any proposed act or 23 omission, done any of the following -- 24 (a) contravened this Act; 25 (b) attempted to contravene this Act; 26 (c) aided, abetted, counselled or procured a person to 27 contravene this Act; 28 (d) induced or attempted to induce a person, whether by 29 threats, promises or otherwise, to contravene this Act; 30 (e) been in any way, directly or indirectly, knowingly 31 concerned in, or party to, the contravention by another 32 person of this Act; page 8 Franchise Agreements Bill 2011 Enforcement and Part 4 s. 14 1 (f) conspired with others to contravene this Act. 2 (2) If the Commissioner makes an application under subsection (1), 3 the court cannot require the applicant to give an undertaking as 4 to damages. 5 (3) On an application made under subsection (1), the court -- 6 (a) may issue an interim injunction against the person 7 pending the determination of the application; 8 (b) if it is satisfied the person is or is not doing, or proposes 9 to do or not to do any act or omission described in that 10 subsection, may issue an injunction against the person; 11 (c) if the parties to the application consent, may issue an 12 injunction against the person without being so satisfied. 13 (4) The court may at any time amend or cancel an injunction or 14 interim injunction issued under this section. 15 14. Redress orders 16 (1) In this section -- 17 redress order, in relation to loss or damage suffered by a 18 person, means any order a court considers will wholly or partly 19 compensate the person for the loss or damage or will prevent or 20 reduce the loss or damage, including but not limited to -- 21 (a) an order described in the Competition and Consumer 22 Act 2010 (Commonwealth) section 87(2); 23 (b) a renewal order; 24 (c) any ancillary, consequential or interim order, including 25 but not limited to orders as to the preparation and 26 execution of documents; 27 renewal order means an order that the franchisor under a WA 28 franchise agreement (the old agreement) must renew the old 29 agreement for a period, and on such other terms, as the court 30 decides is just having regard to the terms of the old agreement. page 9 Franchise Agreements Bill 2011 Part 4 Enforcement and s. 15 1 (2) These persons may apply for a redress order -- 2 (a) a person who has suffered, or is likely to suffer, loss or 3 damage as a result of an act or omission described in 4 section 12(1) or 13(1); 5 (b) the Commissioner on behalf of one of more such 6 persons with the written consent of each of them. 7 (3) An application for a redress order may be made in the course of 8 proceedings commenced under section 12 or 13. 9 (4) An application for a redress order cannot be made more than 10 6 years after the date on which the act or omission described in 11 section 12(1) or 13(1) occurs. 12 (5) If, on an application made under this section, the court is 13 satisfied a person has suffered, or is likely to suffer, loss or 14 damage as a result of an act or omission described in 15 section 12(1) or 13(1), the court may make a redress order 16 against any person who did the act or omission. 17 (6) The court may make a redress order whether or not it grants any 18 remedy under section 12 or 13. 19 15. Damages for harm due to contravention of this Act 20 A person who suffers loss or damage as a result of an act or 21 omission of another person that contravenes this Act has a cause 22 of action against that person for damages for the loss or damage. page 10 Franchise Agreements Bill 2011 Annual Part 5 s. 16 1 Part 5 -- Annual Review 2 16. Small Business Development Corporation to report 3 (1) After the end of each financial year the Small Business 4 Development Corporation is to prepare a report which reviews 5 current issues, trends and key areas of concern in relation to the 6 state of franchising in Western Australia (annual report). 7 (2) The Small Business Development Corporation is to cause a 8 copy of its annual report to be laid before each House of 9 Parliament within 90 days after the end of a financial year. 10 (3) For the purpose of preparing its annual report, the Small 11 Business Development Corporation may make such inquiries 12 and collect such information as it thinks fit. 13 (4) Any information collected by the Small Business Development 14 Corporation under subsection (3) may only be used for the 15 purposes of preparing its annual report and the Small Business 16 Development Corporation Act 1983 applies to that information 17 as if the information had been collected under that Act. 18 (5) The Small Business Development Corporation shall not include 19 in any annual report information that: 20 (a) discloses the identity of any person; or 21 (b) might enable the identity of any such person to be 22 identified 23 unless the person has consented to that disclosure. 24
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