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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Franchising Bill 2010 CONTENTS Part 1 -- Preliminary matters 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Term 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 10 162--2 page i Western Australia LEGISLATIVE ASSEMBLY (Introduced by Mr Peter Abetz, MLA) (As amended during consideration in detail) Franchising Bill 2010 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 Franchising Bill 2010 Part 1 Preliminary matters s. 1 1 Part 1 -- Preliminary matters 2 1. Short title 3 This is the Franchising Act 2010. 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 the Fair 15 Trading Act 2010 section 6; 16 Commonwealth Code means the Franchising Code of Conduct 17 set out in the Schedule to the Trade Practices (Industry 18 Codes -- Franchising) Regulations 1998 (Commonwealth) as in 19 force 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 Franchising Bill 2010 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 business conducted under the current 12 agreement continues under the new agreement; 13 WA franchise agreement has the meaning given by section 4. 14 4. Term used: WA franchise agreement 15 (1) A franchise agreement (as defined in the Franchising Code of 16 Conduct (WA)) is a WA franchise agreement for the purposes 17 of this Act if the agreement relates to the conduct of a franchise 18 business in, or substantially in, Western Australia. 19 (2) For the purposes of subsection (1), a franchise agreement is a 20 WA franchise agreement -- 21 (a) whether it is entered into before or after this Act 22 commences; and 23 (b) whether it is entered into in or outside Western Australia 24 or the Commonwealth; and 25 (c) even if the law governing it is not the law of Western 26 Australia. 27 (3) This Act does not apply to agreements which are excluded 28 under sections 5(3)(a) and (b) of the Franchising Code of 29 Conduct. page 3 Franchising Bill 2010 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 this Act, be 12 subject to the law of the Commonwealth, another State, 13 a Territory or a place outside the Commonwealth. page 4 Franchising Bill 2010 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 proposes 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 Franchising Bill 2010 Part 3 Duties of people involved in franchising 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 includes 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 Franchising Bill 2010 Enforcement and remedies 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, counselled 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 Franchising Bill 2010 Part 4 Enforcement and remedies 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 Franchising Bill 2010 Enforcement and remedies 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) any ancillary, consequential or interim order, including 24 but not limited to orders as to the preparation and 25 execution of documents. 26 (2) These persons may apply for a redress order -- 27 (a) a person who has suffered, or is likely to suffer, loss or 28 damage as a result of an act or omission described in 29 section 12(1) or 13(1); 30 (b) the Commissioner on behalf of one or more such 31 persons with the written consent of each of them. page 9 Franchising Bill 2010 Part 4 Enforcement and remedies s. 15 1 (3) An application for a redress order may be made in the course of 2 proceedings commenced under section 12 or 13. 3 (4) An application for a redress order cannot be made more than 4 6 years after the date on which the act or omission described in 5 section 12(1) or 13(1) occurs. 6 (5) If, on an application made under this section, the court is 7 satisfied a person has suffered, or is likely to suffer, loss or 8 damage as a result of an act or omission described in 9 section 12(1) or 13(1), the court may make a redress order 10 against any person who did the act or omission. 11 (6) The court may make a redress order whether or not it grants any 12 remedy under section 12 or 13. 13 15. Damages for harm due to contravention of this Act 14 A person who suffers loss or damage as a result of an act or 15 omission of another person that contravenes this Act has a cause 16 of action against that person for damages for the loss or damage.
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