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This is a Bill, not an Act. For current law, see the Acts databases.


FAIR TRADING BILL 2010

                    Western Australia


           Fair Trading Bill 2010

                       CONTENTS


      Part 1 -- Preliminary
1.    Short title                                             2
2.    Commencement                                            2
3.    Object                                                  2
      Part 2 -- Interpretation and
           application
      Division 1 -- General interpretation
4.    Application of interpretation legislation to certain
      provisions of this Act                                  3
5.    Application of this Division                            3
6.    Terms used                                              3
7.    Meaning of consumer                                     5
8.    Meaning of services                                     6
9.    Further provisions relating to interpretation           8
      Division 2 -- Application
10.   Act binds Crown                                        10
11.   Territorial application of Act                         10
12.   Concurrent operation of laws of other jurisdictions
      not limited                                            12
13.   No contracting out                                     12
14.   Relationship with other Acts and rules of law          12
15.   Inconsistencies with other enactments                  13
      Part 3 -- The Australian Consumer
           Law
      Division 1 -- Object and interpretation
16.   Object of this Part                                    14
17.   Definitions                                            14


                         158--2                               page i
Fair Trading Bill 2010



Contents



               Division 2 -- Application of Australian
                      Consumer Law
      18.      The Australian Consumer Law text                  16
      19.      Application of Australian Consumer Law            16
      20.      Amendments to Australian Consumer Law             17
      21.      Publication and disallowance of regulations and
               instruments under Australian Consumer Law (WA)    17
      22.      Meaning of generic term in Australian Consumer
               Law for purposes of this jurisdiction             18
      23.      Interpretation of Australian Consumer Law         18
      24.      Application of Australian Consumer Law            19
               Division 3 -- References to Australian
                      Consumer Law
      25.      References to Australian Consumer Law             19
      26.      References to Australian Consumer Law of other
               jurisdictions                                     20
               Division 4 -- Application of Australian
                      Consumer Law to Crown
      27.      Division does not apply to Commonwealth           20
      28.      Application law of this jurisdiction              20
      29.      Application law of other jurisdictions            20
      30.      Crown not liable to pecuniary penalty or
               prosecution                                       21
               Division 5 -- Miscellaneous
      31.      No doubling-up of liabilities                     21
      32.      Offences against Australian Consumer Law (WA)
               to be crimes                                      22
      33.      Civil evidence and procedure rules apply to
               proceedings for pecuniary penalty                 22
      34.      Relationship with certain provisions of Health
               Act 1911                                          22
      35.      Relationship with Sale of Goods Act 1895          22
      36.      Modifications to Australian Consumer Law (WA)     23
               Division 6 -- Transitional
      37.      Proceedings for an injunction already commenced   24
      38.      Unfair contract terms                             24
      39.      Unsolicited consumer agreements                   25
      40.      Requests for itemised bills                       25



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                                                Fair Trading Bill 2010



                                                             Contents



41.   Pecuniary penalties -- having regard to previous
      findings                                                  25
      Part 4 -- Codes of practice
      Division 1 -- Preliminary
42.   Outline                                                   26
43.   Term used: code of practice                               26
      Division 2 -- Development and implementation
             of codes of practice
44.   Preparation of draft code of practice by
      Commissioner                                              27
45.   Regulations prescribing code of practice                  27
46.   Interim code of practice                                  28
      Division 3 -- Enforcement of codes of practice
47.   State Administrative Tribunal may enforce
      compliance with code of practice                          28
48.   Commissioner may take or defend proceedings
      relating to contravention of code of practice             29
49.   Provisions applying to proceedings instituted or
      defended by Commissioner                                  30
50.   No doubling-up of liabilities                             31
51.   Action taken for breach of code of practice doesn't
      preclude other civil action                               32
52.   Transitional provision relating to existing codes of
      practice                                                  32
53.   Transitional provisions relating to undertakings
      under Fair Trading Act 1987 section 44                    33
54.   Transitional provision relating to contravention of
      existing code of practice                                 34
      Part 5 -- Administrative provisions
      Division 1 -- Commissioner
55.   Commissioner                                              36
56.   General functions of Commissioner                         36
57.   Commissioner may issue warnings or information            38
58.   Instituting or defending legal proceedings on
      behalf of consumers or businesses                         38
59.   Provisions applying to proceedings instituted or
      defended by Commissioner                                  40


                                                               page iii
Fair Trading Bill 2010



Contents



      60.      Delegation by Commissioner                            41
      61.      Judicial notice                                       42
               Division 2 -- Offence
      62.      Advertisements not to imply approval by consumer
               affairs authority                                     42
               Part 6 -- Investigation and
                    enforcement
               Division 1 -- Interpretation
      63.      Terms used                                            45
               Division 2 -- Investigators
      64.      Appointment of investigators                          45
      65.      Certificate of appointment as investigator            46
      66.      Investigators to produce certificate of appointment
               on demand                                             46
      67.      Persons assisting investigators                       46
               Division 3 -- General powers
      68.      Investigation and inquiry by Commissioner             47
      69.      Power of Commissioner to investigate, inquire and
               obtain information                                    47
      70.      Conduct of interviews                                 49
      71.      Warrant to enter premises or motor vehicle            50
      72.      Warrants by telephone, fax or other electronic
               means                                                 51
      73.      Further provisions relating to warrants by
               telephone etc.                                        52
      74.      Issue of warrant                                      53
      75.      Person with knowledge of computer or computer
               network or other data storage devices to assist
               access                                                55
      76.      Further powers conferred by warrant                   55
      77.      Compensation for damage to equipment or data          56
      78.      Execution of warrant                                  57
      79.      Seizure                                               58
      80.      Copies of seized things to be provided                59
      81.      Access to things seized                               60
      82.      Return of seized things                               60
      83.      SAT review: seizure                                   60
      84.      Forfeiture of seized thing                            61


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                                                Fair Trading Bill 2010



                                                             Contents



85.    Dealing with forfeited things                            61
86.    Privilege against self-incrimination doesn't apply       62
87.    Information                                              62
       Division 4 -- Offences
88.    Failure to cooperate with investigation                  63
89.    Obstructing authorised person                            64
       Part 7 -- Criminal and civil
            proceedings
       Division 1 -- Preliminary
90.    Term used: person involved in contravention              65
       Division 2 -- Criminal proceedings
91.    Time limit for commencing proceedings                    65
92.    Who may institute criminal proceedings                   65
93.    Court of summary jurisdiction to be constituted by
       magistrate                                               66
94.    Other powers of courts in criminal proceedings           66
95.    Offences by directors, employers, and vicarious
       liability                                                67
96.    Defence: reasonable mistake                              69
97.    Defence: act or default of another person etc.           69
98.    Defence: publication of advertisements in ordinary
       course of business                                       70
       Division 3 -- Civil proceedings
99.    Injunctions in restraint of conduct                      71
100.   Other injunctions                                        71
101.   Injunctions generally                                    72
102.   Interim injunctions                                      73
103.   Final injunction by consent                              73
104.   Injunction may be rescinded or varied                    74
105.   Other orders                                             74
106.   Power of Supreme Court and District Court to
       prohibit payment or transfer of money or other
       property                                                 76
107.   Offence to contravene order under section 106            79
108.   Finding in certain proceedings to be evidence            79
       Division 4 -- Further provisions relating to
               proceedings
109.   References to state of mind                              80

                                                               page v
Fair Trading Bill 2010



Contents



      110.     Conduct and state of mind of directors, employees
               or agents of bodies corporate                               80
      111.     Conduct of employees or agents of persons other
               than bodies corporate                                       81
               Part 8 -- Miscellaneous
      112.     Confidentiality of information officially obtained          83
      113.     Commissioner can use or disclose information for
               any purpose connected with legislation
               administered by Department                                  84
      114.     Protection from liability for wrongdoing                    84
      115.     Protection from liability for publishing official
               statements                                                  85
      116.     Regulations                                                 85
               Part 9 -- Transitional provisions
      117.     Transitional regulations                                    87
      118.     Saving - Fair Trading (Product Information
               Standard) Regulations 2005 Part 4 (builders plates
               for recreational vessels)                                   88
      119.     Transitional provision: recall of defective goods           88
      120.     Transitional provision: delegations                         89
      121.     Application of Interpretation Act 1984 to expiring
               Acts                                                        89
               Part 10 -- Amendments
               Division 1 -- Consumer Affairs Act 1971
                     amended
      122.     Act amended                                                 90
      123.     Sections 2A to 2D inserted                                  90
               2A.       Application of Act limited                   90
               2B.       Expiry of Act                                90
               2C.       Act continues to apply for certain
                         purposes                                     90
               2D.       Acts or omissions that occurred before the
                         commencement day                             91
               Division 2 -- Door to Door Trading Act 1987
                     amended
      124.     Act amended                                                 91
      125.     Sections 3A to 3D inserted                                  91
               3A.       Application of Act limited                   91


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                                                 Fair Trading Bill 2010



                                                                 Contents



       3B.     Expiry of Act                                92
       3C.     Act continues to apply for certain
               purposes                                     92
       3D.     Acts or omissions that occurred before the
               commencement day                             93
       Division 3 -- Fair Trading Act 1987 amended
126.   Act amended                                                  93
127.   Sections 3A to 3D inserted                                   93
       3A.     Application of Act limited                   93
       3B.     Expiry of Act                                93
       3C.     Act continues to apply for certain
               purposes                                     94
       3D.     Acts or omissions that occurred before the
               commencement day                             94

       Schedule 1 -- Acts that override this
           Act
       Defined Terms




                                                                  page vii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)



                   Fair Trading Bill 2010


                               A Bill for


An Act to --
•  promote and encourage fair trading practices and a competitive
   and fair market, and protect the interests of consumers, by
   applying the Australian Consumer Law (with modifications) as a
   law of Western Australia, and providing for codes of practice;
   and
•  provide for the powers and functions of a Commissioner,
   including powers to carry out investigations into alleged breaches
   of this Act; and
•  provide for the repeal of the Consumer Affairs Act 1971, Fair
   Trading Act 1987 and Door to Door Trading Act 1987; and
•  make consequential amendments to various Acts,
and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                               page 1
     Fair Trading Bill 2010
     Part 1            Preliminary

     s. 1



1                            Part 1 -- Preliminary
2    1.       Short title
3             This is the Fair Trading 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 a day fixed by proclamation,
9                    and different days may be fixed for different provisions.

10   3.       Object
11            The object of this Act is to improve consumer well-being
12            through consumer empowerment and protection, to foster
13            effective competition, and to enable the confident participation
14            of consumers in markets in which both consumers and suppliers
15            trade fairly.




     page 2
                                                              Fair Trading Bill 2010
                                      Interpretation and application          Part 2
                                              General interpretation     Division 1
                                                                                 s. 4



1                Part 2 -- Interpretation and application
2                      Division 1 -- General interpretation
3    4.         Application of interpretation legislation to certain
4               provisions of this Act
5               Section 23 deals with the application of the Acts Interpretation
6               Act 1901 (Commonwealth) and the Interpretation Act 1984 of
7               Western Australia to the Australian Consumer Law (WA).

8    5.         Application of this Division
9         (1)   Sections 6 to 9 apply to this Act other than Part 3 and the
10              Australian Consumer Law (WA).
11        (2)   Section 17 applies to the interpretation of terms used in Part 3
12              and the Australian Consumer Law (WA).

13   6.         Terms used
14              In this Act (other than Part 3 and the Australian Consumer Law
15              (WA)) --
16              acquire includes --
17                (a) in relation to goods -- acquire by purchase or exchange
18                      or by taking on lease, on hire or on hire-purchase; and
19                (b) in relation to services -- accept; and
20                (c) in relation to an interest in land -- acquire by purchase
21                      or exchange or by taking on lease, or in any other
22                      manner in which an interest in land may be acquired for
23                      valuable consideration;
24              Australian Consumer Law (WA) has the meaning given in
25              section 17;
26              business includes --
27                (a) a business not carried on for profit; and
28                (b) a trade or profession;


                                                                              page 3
     Fair Trading Bill 2010
     Part 2            Interpretation and application
     Division 1        General interpretation
     s. 6



1              Commissioner means the person for the time being designated
2              as the Commissioner under section 55;
3              consumer has the meaning given in section 7;
4              Department means the department of the Public Service
5              principally assisting the Minister in the administration of this
6              Act;
7              disposal, in relation to an interest in land, means disposal by
8              sale, exchange or lease or by any other method by which an
9              interest in land may be disposed of for valuable consideration;
10             document has the meaning given in the Australian Consumer
11             Law (WA) section 2(1);
12             goods has the meaning given in the Australian Consumer Law
13             (WA) section 2(1);
14             interest has the meaning given in the Australian Consumer Law
15             (WA) section 2(1);
16             provision, in relation to an understanding, means any matter
17             forming part of the understanding;
18             re-supply, in relation to goods acquired from a person,
19             includes --
20               (a) a supply of the goods to another person in an altered
21                      form or condition; and
22               (b) a supply to another person of goods in which the
23                      first-mentioned goods have been incorporated;
24             services has the meaning given in section 8;
25             supplier means a person who, in the course of business, supplies
26             goods or services;
27             supply includes --
28               (a) in relation to goods --
29                         (i) supply (including re-supply) by way of sale,
30                              exchange, lease, hire or hire-purchase; and




     page 4
                                                               Fair Trading Bill 2010
                                       Interpretation and application          Part 2
                                               General interpretation     Division 1
                                                                                  s. 7



1                        (ii)   exhibit, expose or have in possession for the
2                               purpose of sale, exchange, lease, hire or
3                               hire-purchase or for any purpose of
4                               advertisement, manufacture or trade;
5                       and
6                 (b) in relation to services -- provide, grant or render for
7                       valuable consideration; and
8                 (c) in relation both to goods and to services -- donate for
9                       promotional purposes;
10              trade or commerce includes any business or professional
11              activity (whether or not carried on for profit).

12   7.         Meaning of consumer
13        (1)   In this Act (other than Part 3 and the Australian Consumer
14              Law (WA)) --
15              consumer means --
16                (a) a person who purchases or takes on hire or lease, or is a
17                      potential purchaser or hirer or lessee of, or borrows
18                      money for the purpose of purchasing, goods otherwise
19                      than for resale or letting on hire or leasing; or
20                (b) a person who uses or is a potential user of, or borrows
21                      money for the purpose of using, any service rendered for
22                      fee or reward; or
23                (c) a person who purchases or is the potential purchaser of,
24                      or borrows money for the purpose of purchasing, an
25                      estate or interest in any land or building otherwise than
26                      for resale, letting or leasing; or
27                (d) a person who becomes a tenant or lessee of, or is a
28                      potential tenant or lessee of, any land or building or part
29                      of a building otherwise than for assignment or
30                      underletting.




                                                                              page 5
     Fair Trading Bill 2010
     Part 2            Interpretation and application
     Division 1        General interpretation
     s. 8



1         (2)   However, a person who carries on a trade or business is not a
2               consumer for the purposes of subsection (1) in respect of or in
3               relation to --
4                 (a) goods purchased or taken on hire or lease by that person,
5                       or of which that person is a potential purchaser, hirer or
6                       lessee, in the course of or for the purpose of the carrying
7                       on of that trade or business;
8                 (b) a service used by that person, or of which the person is a
9                       potential user, in the course of or for the purpose of the
10                      carrying on of that trade or business;
11                (c) an estate or interest in land or a building purchased by
12                      that person, or of which the person is a potential
13                      purchaser, in the course of or for the purpose of the
14                      carrying on of that trade or business;
15                (d) any land or building or part of a building of which the
16                      person becomes the tenant or lessee, or is a potential
17                      tenant or lessee, in the course of or for the purpose of
18                      the carrying on of that trade or business.
19        (3)   A person who carries on an agricultural, apicultural, pastoral,
20              horticultural, orcharding, viticultural or other farming
21              undertaking does not carry on a trade or business for the
22              purposes of subsection (2).

23   8.         Meaning of services
24        (1)   In this Act (other than Part 3 and the Australian Consumer
25              Law (WA)) --
26              services includes any rights (including rights in relation to, and
27              interests in, real or personal property), benefits, privileges or
28              facilities that are, or are to be, provided, granted or conferred in
29              trade or commerce.




     page 6
                                                          Fair Trading Bill 2010
                                  Interpretation and application          Part 2
                                          General interpretation     Division 1
                                                                             s. 8



1    (2)   Without limiting the generality of subsection (1), the definition
2          of services includes the rights, benefits, privileges and facilities
3          that are, or are to be, provided, granted or conferred under --
4            (a) a contract for or in relation to --
5                      (i) the performance of work (including work of a
6                           professional nature), whether with or without the
7                           supply of goods; or
8                     (ii) the provision of gas or electricity or the provision
9                           of any other form of energy; or
10                   (iii) the provision for reward of lodging or
11                          accommodation; or
12                   (iv) the provision, or making available for use, of
13                          facilities for amusement, entertainment,
14                          recreation or instruction; or
15                    (v) the conferring of rights, benefits or privileges for
16                          which remuneration is payable in the form of a
17                          royalty, tribute, levy or similar exaction;
18                 or
19           (b) a contract of insurance; or
20           (c) a contract between a banker and a customer of the
21                 banker entered into in the course of the carrying on by
22                 the banker of the business of banking; or
23           (d) a contract for or in relation to the lending of money.
24   (3)   The definition of services does not include rights or benefits
25         being the supply of goods or the performance of work under a
26         contract of service.
27   (4)   Legal services as defined in the Legal Profession Act 2008
28         section 3 are not services for the purposes of this section.




                                                                         page 7
     Fair Trading Bill 2010
     Part 2            Interpretation and application
     Division 1        General interpretation
     s. 9



1    9.         Further provisions relating to interpretation
2         (1)   In this Act (other than Part 3 and the Australian Consumer
3               Law (WA)), unless the contrary intention appears --
4                 (a) a reference to the supply or acquisition of goods
5                       includes a reference to agreeing to supply or acquire
6                       goods; and
7                 (b) a reference to the acquisition of goods includes a
8                       reference to the acquisition of property in, or rights in
9                       relation to, goods upon a supply of the goods; and
10                (c) a reference to the supply or acquisition of services
11                      includes a reference to agreeing to supply or acquire
12                      services; and
13                (d) a reference to the supply or acquisition of goods
14                      includes a reference to the supply or acquisition of
15                      goods together with other property or services, or both;
16                      and
17                (e) a reference to the supply or acquisition of services
18                      includes a reference to the supply or acquisition of
19                      services together with goods or other property or other
20                      services; and
21                 (f) a reference to the disposal or acquisition of an interest in
22                      land includes a reference to the disposal or acquisition
23                      of such an interest together with goods or services; and
24                (g) a reference to goods or services includes a reference to
25                      goods and services; and
26                (h) a reference to the disposal or acquisition of an interest in
27                      land includes a reference to agreeing to dispose of or
28                      acquire such an interest, whether or not the agreement is
29                      in writing or evidenced by writing.
30        (2)   For the purposes of this Act (other than Part 3 and the
31              Australian Consumer Law (WA)) --
32               (a) the obtaining of credit by a person in connection with
33                      the acquisition of goods or services by the person is an
34                      acquisition by the person of services; and

     page 8
                                                          Fair Trading Bill 2010
                                  Interpretation and application          Part 2
                                          General interpretation     Division 1
                                                                             s. 9



1           (b)    any amount by which the price of the goods or services
2                  is increased because credit was obtained is the price of
3                  the services represented by the obtaining of credit.
4    (3)   In this Act (other than Part 3 and the Australian Consumer
5          Law (WA)) --
6            (a) a reference to engaging in conduct is to be read as a
7                  reference to doing or refusing to do any act,
8                  including --
9                     (i) the making of, or the giving effect to a provision
10                         of, a contract or arrangement; or
11                   (ii) the arriving at, or the giving effect to a provision
12                         of, an understanding;
13                 and
14           (b) a reference to conduct, when that expression is used as a
15                 noun otherwise than as mentioned in paragraph (a), is to
16                 be read as a reference to the doing of or the refusing to
17                 do any act, including --
18                    (i) the making of, or the giving effect to a provision
19                         of, a contract or arrangement; or
20                   (ii) the arriving at, or the giving effect to a provision
21                         of, an understanding;
22                 and
23           (c) a reference to refusing to do an act includes --
24                    (i) a reference to refraining (otherwise than
25                         inadvertently) from doing the act; and
26                   (ii) a reference to making it known that the act will
27                         not be done;
28                 and
29           (d) a reference to a person offering to do an act, or to do an
30                 act on a particular condition, includes a reference to the
31                 person making known a willingness to accept
32                 applications, offers or proposals for the person to do the
33                 act or to do that act on the condition.

                                                                         page 9
     Fair Trading Bill 2010
     Part 2            Interpretation and application
     Division 2        Application
     s. 10



1          (4)   In this Act (other than Part 3 and the Australian Consumer
2                Law (WA)) --
3                  (a) a reference to loss or damage, other than a reference to
4                        the amount of any loss or damage, includes a reference
5                        to injury; and
6                  (b) a reference to the amount of any loss or damage includes
7                        a reference to damages in respect of an injury.
8          (5)   In this Act (other than Part 3 and the Australian Consumer
9                Law (WA)), a reference to the making of a representation
10               includes a reference to the publishing of a statement.

11                            Division 2 -- Application
12   10.         Act binds Crown
13         (1)   This Act binds the Crown not only in right of Western Australia
14               but also, so far as the legislative power of Parliament permits,
15               the Crown in all its other capacities.
16         (2)   This Act applies to and in respect of the Crown in any of its
17               capacities to the same extent as if the Crown were, in that
18               capacity, a body corporate.
19         (3)   Nothing in this Act makes the Crown in any capacity liable to
20               be prosecuted for an offence.
21         (4)   The protection in subsection (3) does not apply to an authority
22               of the Crown.
23         (5)   This section is subject to Part 3 Division 4.

24   11.         Territorial application of Act
25         (1)   This Act applies to and in respect of an acquisition or supply or
26               the proposed acquisition or supply of goods or services, or the
27               disposal or proposed disposal of an interest in land --
28                 (a) if the person by or to whom the goods or services are or
29                       are proposed to be acquired or supplied signs in Western


     page 10
                                                         Fair Trading Bill 2010
                                 Interpretation and application          Part 2
                                                    Application     Division 2
                                                                           s. 11



1                  Australia a document relating to the acquisition or
2                  supply or the proposed acquisition or supply; or
3           (b)    if the person by or to whom the interest in land is or is
4                  proposed to be disposed of signs in Western Australia a
5                  document relating to the disposal or the proposed
6                  disposal of that interest; or
7            (c)   if that person does not so sign such a document, if the
8                  goods or services are or are proposed to be delivered or
9                  supplied, or that land is situated, in Western Australia.
10   (2)   Subsection (1) applies --
11          (a) despite anything to the contrary in any other Act or law;
12                but
13          (b) except as otherwise expressly provided in or under this
14                Act.
15   (3)   This Act applies to and in relation to --
16          (a) persons carrying on business within this jurisdiction; or
17          (b) bodies corporate incorporated or registered under the
18                law of this jurisdiction; or
19          (c) persons ordinarily resident in this jurisdiction; or
20          (d) persons otherwise connected with this jurisdiction.
21   (4)   Subject to subsection (3), this Act extends to conduct, and other
22         acts, matters and things occurring or existing outside or partly
23         outside this jurisdiction (whether within or outside Australia).
24   (5)   This Act applies to a contract in the following circumstances,
25         despite the terms of the contract --
26           (a) if the proper law of a contract for the supply of goods or
27                 services to a consumer would, but for a term that it
28                 should be the law of some other place or a term to the
29                 like effect, be the law of Western Australia;
30           (b) if a contract for the supply of goods or services to a
31                 consumer contains a term that purports to substitute, or
32                 has the effect of substituting, provisions of the law of

                                                                       page 11
     Fair Trading Bill 2010
     Part 2            Interpretation and application
     Division 2        Application
     s. 12



1                        some other country or of another State or of a Territory
2                        for all or any of the provisions of this Act.
3          (6)   This section is subject to section 24.

4    12.         Concurrent operation of laws of other jurisdictions not
5                limited
6                This Act is not intended to exclude or limit the concurrent
7                operation of any law of the Commonwealth or of another State
8                or a Territory.

9    13.         No contracting out
10         (1)   This Act has effect despite any stipulation in any contract or
11               agreement to the contrary.
12         (2)   If the making of a contract contravenes this Act because the
13               contract includes a particular provision, nothing in this Act
14               affects the validity or enforceability of the contract otherwise
15               than in relation to that provision, so far as that provision is
16               severable.
17         (3)   Subsection (2) is subject to subsection (1) and to any order
18               made under section 105 or 106.

19   14.         Relationship with other Acts and rules of law
20         (1)   This Act is to be read and construed as being in addition to, and
21               not in derogation of or in substitution for, any other Act or rule
22               of law for the time being in force in this State that relates to the
23               duty or liability of persons with respect to goods or services
24               supplied to a consumer.
25         (2)   Except as expressly provided by this Act, nothing in this Act is
26               to be taken to limit, restrict or otherwise affect any right or
27               remedy a person would have had if this Act had not been
28               enacted.




     page 12
                                                               Fair Trading Bill 2010
                                       Interpretation and application          Part 2
                                                          Application     Division 2
                                                                                 s. 15



1   15.         Inconsistencies with other enactments
2         (1)   This section applies if a provision of this Act or a regulation
3               made under this Act is inconsistent with --
4                (a) a provision of an Act specified in Schedule 1; or
5                (b) a provision of an instrument made under an Act so
6                      specified.
7         (2)   If this section applies, the provision of the Act so specified, or
8               of the instrument, prevails.
9         (3)   This section is subject to section 34.




                                                                             page 13
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 1        Object and interpretation
     s. 16



1                Part 3 -- The Australian Consumer Law
2                     Division 1 -- Object and interpretation
3    16.         Object of this Part
4                The object of this Part is to apply (with modifications) the
5                Australian Consumer Law set out in Schedule 2 to the
6                Competition and Consumer Act 2010 (Commonwealth) as a law
7                of Western Australia.

8    17.         Definitions
9          (1)   In this Part, unless the contrary intention appears --
10               application law means --
11                 (a) a law of a participating jurisdiction that applies the
12                        Australian Consumer Law, either with or without
13                        modifications, as a law of the participating jurisdiction;
14                        or
15                 (b) any regulations or other legislative instrument made
16                        under a law described in paragraph (a); or
17                 (c) the Australian Consumer Law, applying as a law of the
18                        participating jurisdiction, either with or without
19                        modifications;
20               Australian Consumer Law means (according to the context) --
21                 (a) the Australian Consumer Law text; or
22                 (b) the Australian Consumer Law text, applying as a law of
23                        a participating jurisdiction, either with or without
24                        modifications;
25               Australian Consumer Law text means the text described in
26               section 18;
27               Australian Consumer Law (WA) means the provisions applying
28               in this jurisdiction because of section 19;




     page 14
                                                   Fair Trading Bill 2010
                           The Australian Consumer Law             Part 3
                                Object and interpretation     Division 1
                                                                     s. 17



1    instrument means any document whatever, including the
2    following --
3      (a) an Act or an instrument made under an Act;
4      (b) a law of this jurisdiction or an instrument made under
5            such a law;
6      (c) an award or other industrial determination or order, or
7            an industrial agreement;
8      (d) any other order (whether executive, judicial or
9            otherwise);
10     (e) a notice, certificate or licence;
11      (f) an agreement;
12     (g) an application made, prosecution notice lodged,
13           information or complaint laid, affidavit sworn, or
14           warrant issued, for any purpose;
15     (h) an indictment, presentment, summons or writ;
16      (i) any other pleading in, or process issued in connection
17           with, a legal or other proceeding;
18   Intergovernmental Agreement means the Intergovernmental
19   Agreement for the Australian Consumer Law made on
20   2 July 2009 between the Commonwealth, the State of New
21   South Wales, the State of Victoria, the State of Queensland, the
22   State of Western Australia, the State of South Australia, the
23   State of Tasmania, the Australian Capital Territory and the
24   Northern Territory of Australia, as in force for the time being;
25   jurisdiction means a State or the Commonwealth;
26   law, in relation to a Territory, means a law of, or in force in, that
27   Territory;
28   modifications includes additions, omissions and substitutions;
29   participating jurisdiction means a jurisdiction that is a party to
30   the Intergovernmental Agreement and applies the Australian
31   Consumer Law as a law of the jurisdiction, either with or
32   without modifications;
33   State includes a Territory;

                                                                  page 15
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 2        Application of Australian Consumer Law
     s. 18



1                Territory means the Australian Capital Territory or the Northern
2                Territory of Australia;
3                this jurisdiction means Western Australia.
4          (2)   Terms used in this Part and also in the Australian Consumer
5                Law (WA) have the same meanings in this Part as they have in
6                that Law.
7          (3)   For the purposes of this Part --
8                 (a) a jurisdiction is taken to have applied the Australian
9                        Consumer Law as a law of the jurisdiction if a law of the
10                       jurisdiction substantially corresponds to the provisions
11                       of the Australian Consumer Law text, as in force from
12                       time to time; and
13                (b) the corresponding law is taken to be the Australian
14                       Consumer Law, or the Australian Consumer Law text,
15                       applying as a law of that jurisdiction.

16          Division 2 -- Application of Australian Consumer Law
17   18.         The Australian Consumer Law text
18               The Australian Consumer Law text consists of --
19                (a) Schedule 2 to the Competition and Consumer Act 2010
20                     (Commonwealth); and
21                (b) the regulations made under section 139G of that Act.

22   19.         Application of Australian Consumer Law
23         (1)   For the purposes of this section, the Australian Consumer Law
24               text consists of --
25                 (a) Schedule 2 to the Competition and Consumer Act 2010
26                       (Commonwealth), as in force on the commencement of
27                       this section (but as modified by section 36); and
28                 (b) the regulations made under section 139G of that Act, as
29                       those regulations are in force from time to time.



     page 16
                                                              Fair Trading Bill 2010
                                       The Australian Consumer Law            Part 3
                             Application of Australian Consumer Law      Division 2
                                                                                s. 20



1          (2)   The Australian Consumer Law text --
2                 (a) applies as a law of this jurisdiction; and
3                 (b) as so applying, may be referred to as the Australian
4                      Consumer Law (WA); and
5                 (c) in so far as it constitutes Schedule 2 to the Competition
6                      and Consumer Act 2010 (Commonwealth), is part of this
7                      Act; and
8                 (d) in so far as it constitutes regulations made under section
9                      139G of the Competition and Consumer Act 2010
10                     (Commonwealth), is subsidiary legislation for the
11                     purposes of this Act.
12         (3)   This section has effect subject to sections 20, 21, 22, 23
13               and 116(3).

14   20.         Amendments to Australian Consumer Law
15               The Australian Consumer Law (WA) (as described in
16               section 19(1)(a)) may be amended by bill.

17   21.         Publication and disallowance of regulations and instruments
18               under Australian Consumer Law (WA)
19         (1)   This section applies to the following instruments --
20                (a) regulations made under the Competition and Consumer
21                      Act 2010 (Commonwealth) section 139G;
22                (b) a determination under the Australian Consumer Law
23                      (WA) section 66(1) (display notices);
24                (c) a notice under the Australian Consumer Law (WA)
25                      section 104(1) or 105(1) (safety standards);
26                (d) a notice under the Australian Consumer Law (WA)
27                      section 114(1) or (2) (permanent bans);
28                (e) a notice under the Australian Consumer Law (WA)
29                      section 117 (revocation of permanent bans);




                                                                              page 17
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 2        Application of Australian Consumer Law
     s. 22



1                  (f)   a notice under the Australian Consumer Law (WA)
2                        section 122(1) (recall notices) by a responsible Minister
3                        of this jurisdiction;
4                 (g)    a notice under the Australian Consumer Law (WA)
5                        section 134(1) or 135(1) (information standards).
6          (2)   Where an instrument to which this section applies is made, a
7                copy of the instrument must be published in the Gazette not
8                later than 28 days after the instrument is made.
9          (3)   If a copy of an instrument is not published in the Gazette in
10               accordance with subsection (2) --
11                  (a) the instrument ceases to have effect in this jurisdiction
12                       on the expiry of the 28th day after the instrument is
13                       made, but without affecting the validity or curing the
14                       invalidity of anything done or of the omission of
15                       anything in the meantime; but
16                 (b) if a copy of the instrument is subsequently published in
17                       the Gazette, the instrument again has effect on and from
18                       the day after the day of publication of a copy of the
19                       instrument.
20         (4)   Where a copy of an instrument to which this section applies is
21               published in the Gazette, the Interpretation Act 1984 section 42
22               applies to that instrument as if it were a regulation published in
23               the Gazette.

24   22.         Meaning of generic term in Australian Consumer Law for
25               purposes of this jurisdiction
26               In the Australian Consumer Law (WA) --
27               regulator means the Commissioner (as defined in section 6).

28   23.         Interpretation of Australian Consumer Law
29         (1)   The Acts Interpretation Act 1901 (Commonwealth) applies as a
30               law of this jurisdiction to the Australian Consumer Law (WA).



     page 18
                                                            Fair Trading Bill 2010
                                     The Australian Consumer Law            Part 3
                            References to Australian Consumer Law      Division 3
                                                                              s. 24



1          (2)   For the purposes of subsection (1), the Commonwealth Act
2                mentioned in that subsection applies as if --
3                 (a) the statutory provisions in the Australian Consumer Law
4                        (WA) were a Commonwealth Act; and
5                 (b) the regulations in the Australian Consumer Law (WA) or
6                        instruments under that Law were regulations or
7                        instruments under a Commonwealth Act.
8          (3)   The Interpretation Act 1984 of Western Australia does not
9                apply to --
10                 (a) the Australian Consumer Law (WA); or
11                 (b) any instrument under that Law.
12         (4)   Subsection (3) is subject to section 21.

13   24.         Application of Australian Consumer Law
14         (1)   The Australian Consumer Law (WA) applies to and in relation
15               to --
16                 (a) persons carrying on business within this jurisdiction; or
17                 (b) bodies corporate incorporated or registered under the
18                     law of this jurisdiction; or
19                 (c) persons ordinarily resident in this jurisdiction; or
20                 (d) persons otherwise connected with this jurisdiction.
21         (2)   Subject to subsection (1), the Australian Consumer Law (WA)
22               extends to conduct, and other acts, matters and things, occurring
23               or existing outside or partly outside this jurisdiction (whether
24               within or outside Australia).

25           Division 3 -- References to Australian Consumer Law
26   25.         References to Australian Consumer Law
27         (1)   A reference in any instrument to the Australian Consumer Law
28               is a reference to the Australian Consumer Law of any or all of
29               the participating jurisdictions.


                                                                           page 19
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 4        Application of Australian Consumer Law to Crown
     s. 26



1          (2)   Subsection (1) has effect except so far as the contrary intention
2                appears in the instrument or the context of the reference
3                otherwise requires.

4    26.         References to Australian Consumer Law of other
5                jurisdictions
6          (1)   This section has effect for the purposes of an Act, a law of this
7                jurisdiction or an instrument under an Act or such a law.
8          (2)   If a law of a participating jurisdiction other than this jurisdiction
9                provides that the Australian Consumer Law text as in force for
10               the time being applies as a law of that jurisdiction, the
11               Australian Consumer Law of that jurisdiction is the Australian
12               Consumer Law text, applying as a law of that jurisdiction.

13          Division 4 -- Application of Australian Consumer Law
14                                to Crown
15   27.         Division does not apply to Commonwealth
16               In this Division --
17               participating jurisdiction or other jurisdiction does not include
18               the Commonwealth.

19   28.         Application law of this jurisdiction
20               The application law of this jurisdiction binds (so far as the
21               legislative power of Parliament permits) the Crown in right of
22               this jurisdiction and of each other jurisdiction, so far as the
23               Crown carries on a business, either directly or by an authority of
24               the jurisdiction concerned.

25   29.         Application law of other jurisdictions
26         (1)   The application law of each participating jurisdiction other than
27               this jurisdiction binds the Crown in right of this jurisdiction, so
28               far as the Crown carries on a business, either directly or by an
29               authority of this jurisdiction.


     page 20
                                                               Fair Trading Bill 2010
                                       The Australian Consumer Law             Part 3
                                                       Miscellaneous      Division 5
                                                                                 s. 30



1          (2)   If, because of this Part, a provision of the law of another
2                participating jurisdiction binds the Crown in right of this
3                jurisdiction, the Crown in that right is subject to that provision
4                despite any prerogative right or privilege.

5    30.         Crown not liable to pecuniary penalty or prosecution
6          (1)   Nothing in the application law of this jurisdiction makes the
7                Crown in any capacity liable to a pecuniary penalty or to be
8                prosecuted for an offence.
9          (2)   Without limiting subsection (1), nothing in the application law
10               of a participating jurisdiction makes the Crown in right of this
11               jurisdiction liable to a pecuniary penalty or to be prosecuted for
12               an offence.
13         (3)   The protection in subsection (1) or (2) does not apply to an
14               authority of any jurisdiction.

15                            Division 5 -- Miscellaneous
16   31.         No doubling-up of liabilities
17         (1)   For the purposes of this section, a person is convicted of an
18               offence if a court finds the person guilty of the offence, or
19               accepts a plea of guilty of the offence, whether or not a
20               conviction is recorded.
21         (2)   If --
22                  (a)   an act or omission is an offence against the Australian
23                        Consumer Law (WA) and is also an offence against the
24                        application law of another participating jurisdiction; and
25                 (b)    the offender has been acquitted or convicted of the
26                        offence with which the offender is charged, or has
27                        already been convicted or acquitted of an offence of
28                        which the offender might be convicted upon the
29                        indictment or prosecution notice on which the offender
30                        has been charged, under the application law of the other
31                        participating jurisdiction,

                                                                             page 21
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 5        Miscellaneous
     s. 32



1                the offender is not liable to be prosecuted or punished for the
2                offence against the Australian Consumer Law (WA).
3          (3)   Nothing in subsection (2) prevents the Commissioner from
4                making or issuing a statement under section 57.
5          (4)   If a person has been ordered to pay a pecuniary penalty under
6                the application law of another participating jurisdiction, the
7                person is not liable to a pecuniary penalty under the Australian
8                Consumer Law (WA) in respect of the same conduct.
9    32.         Offences against Australian Consumer Law (WA) to be
10               crimes
11               A person who commits an offence against the Australian
12               Consumer Law (WA) is guilty of a crime.
13               Penalty: the penalty set out in the Australian Consumer Law
14                   (WA).
15               Summary conviction penalty: the lesser of a fine of $36 000 or
16                   the maximum penalty provided by the Australian
17                   Consumer Law (WA) for the offence.
18   33.         Civil evidence and procedure rules apply to proceedings for
19               pecuniary penalty
20               The Court must apply the rules of evidence and procedure for
21               civil matters when hearing proceedings for a pecuniary penalty
22               under the Australian Consumer Law (WA) section 224.
23   34.         Relationship with certain provisions of Health Act 1911
24               Where any provision of the Australian Consumer Law (WA) is
25               inconsistent with the Health Act 1911 section 338B or 338C, the
26               provisions of the Australian Consumer Law (WA) prevail.
27   35.         Relationship with Sale of Goods Act 1895
28         (1)   Where a provision of the Australian Consumer Law (WA)
29               Part 3-2 Division 1 is, in its application to any circumstance,
30               matter or thing, inconsistent with a provision of the Sale of



     page 22
                                                               Fair Trading Bill 2010
                                       The Australian Consumer Law             Part 3
                                                       Miscellaneous      Division 5
                                                                                 s. 36



1                Goods Act 1895 in its application to the same circumstance,
2                matter or thing --
3                 (a) the provision of the Australian Consumer Law (WA)
4                        Part 3-2 Division 1 prevails; and
5                 (b) the provision of the Sale of Goods Act 1895 is
6                        inoperative to the extent of the inconsistency.
7          (2)   This section applies despite --
8                 (a) any rule of law or construction to the contrary; and
9                 (b) an agreement that provides otherwise.

10   36.         Modifications to Australian Consumer Law (WA)
11         (1)   This section makes the modifications to the text of Schedule 2
12               to the Competition and Consumer Act 2010 (Commonwealth),
13               as in force on the commencement of section 19, that, together
14               with the regulations referred to in section 19(1)(b), result in the
15               text that section 19(2) applies as the Australian Consumer Law
16               (WA).
17         (2)   In section 73(1) delete paragraphs (b) and (c) and insert:
18

19                       (b)   on a Saturday:
20                               (i) between midnight and 9 am; or
21                              (ii) between 5 pm and midnight; or
22                       (c)   on any other day:
23                               (i) between midnight and 9 am; or
24                              (ii) between 8 pm and midnight.
25

26         (3)   In section 170(1) delete paragraphs (b) and (c) and insert:
27

28                       (b)   on a Saturday:
29                               (i) between midnight and 9 am; or
30                              (ii) between 5 pm and midnight; or


                                                                              page 23
     Fair Trading Bill 2010
     Part 3            The Australian Consumer Law
     Division 6        Transitional
     s. 37



1                        (c)   on any other day:
2                                (i) between midnight and 9 am; or
3                               (ii) between 8 pm and midnight.
4


5                              Division 6 -- Transitional
6    37.         Proceedings for an injunction already commenced
7          (1)   To the extent that any proceedings to which the Fair Trading
8                Act 1987 section 3C(2)(c) applies are proceedings for an
9                injunction under section 74 or 75 of that Act, the proceedings
10               are taken, after the commencement of this section, to be
11               proceedings for an injunction under the Australian Consumer
12               Law (WA) section 232.
13         (2)   This section overrides the Fair Trading Act 1987
14               section 3C(2)(c).

15   38.         Unfair contract terms
16         (1)   The Australian Consumer Law (WA) Part 2-3 applies to a
17               contract entered into on or after the commencement of this
18               section.
19         (2)   That Part does not apply to a contract entered into before that
20               commencement. However --
21                 (a) if the contract is renewed on or after that
22                      commencement -- that Part applies to the contract as
23                      renewed, on and from the day (the renewal day) on
24                      which the renewal takes effect, in relation to conduct
25                      that occurs on or after the renewal day; or
26                 (b) if a term of the contract is varied on or after that
27                      commencement, and paragraph (a) has not already
28                      applied in relation to the contract -- that Part applies to
29                      the term as varied, on and from the day (the variation
30                      day) on which the variation takes effect, in relation to
31                      conduct that occurs on or after the variation day.

     page 24
                                                              Fair Trading Bill 2010
                                      The Australian Consumer Law             Part 3
                                                        Transitional     Division 6
                                                                                s. 39



1          (3)   If subsection (2)(b) applies to a term of a contract,
2                sections 23(2) and 27 of the Australian Consumer Law (WA)
3                apply to the contract.

4    39.         Unsolicited consumer agreements
5          (1)   The Australian Consumer Law (WA) Part 3-2 Division 2 does
6                not apply to any contract made before the commencement of
7                this section.
8          (2)   The Australian Consumer Law (WA) Part 3-2 Division 2
9                applies to a contract made on or after the commencement of this
10               section even though negotiations leading to the formation of the
11               contract may have taken place before the commencement of this
12               section.
13         (3)   The Door to Door Trading Act 1987 section 3C relates to the
14               application of that Act to contracts made before the
15               commencement of this section.

16   40.         Requests for itemised bills
17               The Australian Consumer Law (WA) section 101 does not apply
18               in relation to a supply of services to the extent that the services
19               were supplied before the commencement of this section.

20   41.         Pecuniary penalties -- having regard to previous findings
21               The reference in the Australian Consumer Law (WA)
22               section 224(2)(c) to proceedings under Chapter 4 or Part 5-2 of
23               that Law includes a reference to proceedings, commenced
24               before the commencement of this section, under or in relation
25               to --
26                 (a) Part VC or VI of the Trade Practices Act 1974
27                       (Commonwealth); or
28                 (b) Part II, V, VI or VII of the Fair Trading Act 1987.




                                                                            page 25
     Fair Trading Bill 2010
     Part 4            Codes of practice
     Division 1        Preliminary
     s. 42



1                          Part 4 -- Codes of practice
2                             Division 1 -- Preliminary
3    42.         Outline
4          (1)   This Part provides for the making of regulations prescribing a
5                code of practice for fair dealing between a particular class of
6                suppliers and consumers, or by a particular class of persons in
7                relation to consumers.
8          (2)   If a person carries on business in contravention of a prescribed
9                code of practice applying to them, the Commissioner can apply
10               to the State Administrative Tribunal for an order requiring the
11               person to comply with the code and rectify the consequence of
12               the contravention of the code.
13         (3)   This section is intended only as a guide to the general scheme
14               and effect of this Part, and does not limit the other provisions of
15               this Part.

16   43.         Term used: code of practice
17               In this Part --
18               code of practice means a code of practice for fair dealing --
19                 (a) between a particular class of suppliers and consumers;
20                        or
21                 (b) by a particular class of persons in relation to consumers;
22                        or
23                 (c) in relation to the supply of a particular kind of goods or
24                        services.




     page 26
                                                              Fair Trading Bill 2010
                                                  Codes of practice           Part 4
                 Development and implementation of codes of practice     Division 2
                                                                                s. 44



1           Division 2 -- Development and implementation of codes
2                                of practice
3    44.         Preparation of draft code of practice by Commissioner
4          (1)   The Commissioner may, with the approval of the Minister,
5                prepare a draft code of practice for submission to the Minister
6                for consideration.
7          (2)   The Commissioner must, if the Minister directs, prepare a draft
8                code of practice for submission to the Minister for
9                consideration.
10         (3)   For the purpose of preparing a draft code of practice, the
11               Commissioner must arrange for consultation with, and invite
12               submissions from, persons and organisations that the
13               Commissioner considers would have an interest in the terms of
14               the proposed draft code.
15         (4)   Without limiting subsection (3), the Commissioner must consult
16               with, and invite submissions from, the following --
17                (a) principal organisations that represent those suppliers that
18                       are likely to be affected by the terms of the draft code of
19                       practice;
20                (b) principal organisations representing consumers.

21   45.         Regulations prescribing code of practice
22         (1)   The regulations may prescribe a code of practice that --
23                (a) has been submitted to the Minister in accordance with
24                      section 44; and
25                (b) has been approved by the Minister with or without
26                      amendments.
27         (2)   Regulations prescribing a code of practice must provide that the
28               regulations expire on a date specified in the regulations, which
29               must be a date that is not later than the last day of the period of
30               3 years after the date on which the code of practice first takes
31               effect.

                                                                             page 27
     Fair Trading Bill 2010
     Part 4            Codes of practice
     Division 3        Enforcement of codes of practice
     s. 46



1          (3)   Regulations prescribing a code of practice may be amended to
2                remove the expiry date of the regulations if --
3                  (a) the Commissioner undertakes a review of the code of
4                       practice before the regulations expire; and
5                  (b) in undertaking the review, the Commissioner follows the
6                       consultation procedures set out in section 44.

7    46.         Interim code of practice
8          (1)   The regulations may prescribe a code of practice even though
9                the procedures set out in section 44 have not been followed or
10               completed.
11         (2)   A code of practice prescribed under this section is an interim
12               code of practice, and may have effect for a period (not
13               exceeding 6 months) specified in the regulations.

14                Division 3 -- Enforcement of codes of practice
15   47.         State Administrative Tribunal may enforce compliance with
16               code of practice
17         (1)   Where it appears to the Commissioner that a person has carried
18               on business in contravention of a prescribed code of practice
19               applicable to that person, the Commissioner may apply to the
20               State Administrative Tribunal for an order under this section.
21         (2)   Where, on the application of the Commissioner, the State
22               Administrative Tribunal is satisfied that a person has carried on
23               business in contravention of a prescribed code of practice
24               applicable to that person, the Tribunal may make either or both
25               of the following orders --
26                 (a) an order that the person cease contravening the code;
27                 (b) an order that the person rectify any consequence of that
28                       contravention.
29         (3)   The State Administrative Tribunal may make an order under
30               subsection (2) in relation to a person with that person's consent,


     page 28
                                                             Fair Trading Bill 2010
                                                 Codes of practice           Part 4
                                   Enforcement of codes of practice     Division 3
                                                                               s. 48



1                without being satisfied that there are grounds for making the
2                order.
3          (4)   Where the contravention is by a body corporate, and the
4                Tribunal is satisfied that it occurred with the consent or
5                connivance of a person who, at the time of the contravention,
6                was a director of the body corporate or a person concerned in its
7                management, the Tribunal may make the following additional
8                orders --
9                  (a) an order prohibiting the person from continuing to
10                      consent to, or connive at, the contravention;
11                 (b) an order prohibiting the person from consenting to, or
12                      conniving at, a similar contravention by any other body
13                      corporate of which the person is a director or in whose
14                      management the person is concerned.
15         (5)   An order under this section may be made subject to any
16               conditions (whether as to the duration of the order or otherwise)
17               the State Administrative Tribunal thinks fit, including --
18                 (a) conditions relating to the future conduct of the person
19                       affected; and
20                 (b) conditions specifying the action to be taken by the
21                       person to rectify the consequences of the contravention
22                       that is the subject of the order.
23         (6)   A person who fails to comply with an order of the State
24               Administrative Tribunal under this section commits an offence.
25               Penalty: a fine of $50 000.

26   48.         Commissioner may take or defend proceedings relating to
27               contravention of code of practice
28         (1)   This section applies where --
29                (a) a person (other than a body corporate) has made a
30                      complaint to the Commissioner in respect of a matter
31                      arising under a code of practice or in relation to a



                                                                           page 29
     Fair Trading Bill 2010
     Part 4            Codes of practice
     Division 3        Enforcement of codes of practice
     s. 49



1                       contravention or suspected contravention of a code of
2                       practice; and
3                 (b)   the Commissioner, after investigating the complaint, is
4                       satisfied --
5                          (i) that the complainant may, with respect to the
6                               matter, have a right to take proceedings before a
7                               court or the State Administrative Tribunal, or a
8                               defence to proceedings taken before a court or
9                               the State Administrative Tribunal by another
10                              person against the complainant in respect of the
11                              matter; and
12                        (ii) that it is in the public interest that the
13                              Commissioner take or, as the case requires,
14                              defend those proceedings on behalf of the
15                              complainant.
16         (2)   If this section applies, the Commissioner may take or defend
17               those proceedings on behalf of, and in the name of, the
18               complainant.
19         (3)   The Commissioner must not take or defend any proceedings
20               under this section without first obtaining --
21                 (a) the written consent of the complainant, which once
22                       given cannot be revoked unless the Commissioner
23                       consents to the revocation; and
24                (b) the written consent of the Minister, which may be given
25                       subject to any conditions the Minister thinks fit.

26   49.         Provisions applying to proceedings instituted or defended by
27               Commissioner
28         (1)   The following provisions apply in relation to any proceedings
29               instituted or defended by the Commissioner under section 48 on
30               behalf of a complainant --
31                 (a) the Commissioner has, on behalf of the complainant, in
32                        all respects the same rights in and control over the
33                        proceedings, including the right to settle any action or

     page 30
                                                              Fair Trading Bill 2010
                                                  Codes of practice           Part 4
                                    Enforcement of codes of practice     Division 3
                                                                                s. 50



1                        part of any action, as the complainant would have had in
2                        the conduct of those proceedings;
3                 (b)    the Commissioner may, without consulting or seeking
4                        the consent of the complainant, conduct the proceedings
5                        in whatever manner the Commissioner thinks
6                        appropriate and proper;
7                  (c)   any moneys (excluding costs) recovered by the
8                        Commissioner belong and must be paid to the
9                        complainant without deduction, and any amount
10                       awarded against the complainant must be paid by and is
11                       recoverable from the complainant;
12                (d)    in all cases the costs of the proceedings must be borne
13                       by or paid to and retained by the Commissioner as the
14                       case may require;
15                 (e)   if any party to the proceedings files a counterclaim, or if
16                       the complainant on whose behalf the proceedings are
17                       being defended is entitled to file a counterclaim, and that
18                       counterclaim is not related to the cause of action, the
19                       court or, as the case requires, the State Administrative
20                       Tribunal hearing the proceedings --
21                          (i) must, on the application of the Commissioner,
22                                order that the counterclaim be heard separately
23                                and that the consumer be a party to the
24                                counterclaim in the complainant's own right; and
25                         (ii) may make any other orders or give any directions
26                                in that behalf the court or Tribunal thinks fit.
27         (2)   Any money that the Commissioner becomes liable to pay by
28               virtue of this section is to be charged to the Consolidated
29               Account, and this Act, without any further appropriation, is
30               sufficient authority for the payment of the money.

31   50.         No doubling-up of liabilities
32         (1)   For the purposes of this section, a person is convicted of an
33               offence if a court finds the person guilty of the offence, or


                                                                            page 31
     Fair Trading Bill 2010
     Part 4            Codes of practice
     Division 3        Enforcement of codes of practice
     s. 51



1                accepts a plea of guilty of the offence, whether or not a
2                conviction is recorded.
3          (2)   If an act or omission is a contravention of a prescribed code of
4                practice and is also an offence against the Australian Consumer
5                Law (WA), and an order is made under section 47 in respect of
6                that contravention, the offender is not liable to be punished for
7                the offence against the Australian Consumer Law (WA).
8          (3)   If an act or omission is a contravention of a prescribed code of
9                practice and is also an offence against the Australian Consumer
10               Law (WA), and the offender has been convicted of the offence
11               under the Australian Consumer Law (WA), the offender is not
12               liable to have an order made against them under section 47.

13   51.         Action taken for breach of code of practice doesn't preclude
14               other civil action
15         (1)   The fact that the Commissioner has made an application under
16               section 47 in respect of a matter that is alleged to be a
17               contravention of a prescribed code of practice, or that the State
18               Administrative Tribunal has made an order under that section in
19               respect of that matter, does not prevent any other person from
20               taking proceedings before a court or the State Administrative
21               Tribunal in respect of the matter.
22         (2)   Nothing in this section permits a person other than the
23               Commissioner to make an application under section 47.

24   52.         Transitional provision relating to existing codes of practice
25         (1)   Regulations made under the Fair Trading Act 1987 section 84
26               prescribing a code of practice in accordance with section 43(1)
27               of that Act and that were in force immediately before the
28               commencement of this section continue in force after that
29               commencement as if they were made under section 45, but
30               nothing in section 45(2) and (3) applies in relation to those
31               regulations.



     page 32
                                                              Fair Trading Bill 2010
                                                  Codes of practice           Part 4
                                    Enforcement of codes of practice     Division 3
                                                                                s. 53



1          (2)   However, in the case of regulations prescribing a code of
2                practice that first took effect at least 3 years before the
3                commencement of this section, those regulations do not
4                continue in force under subsection (1) unless, within the period
5                of 3 years beginning on the date on which that code of practice
6                first took effect, a review, in accordance with the Fair Trading
7                Act 1987 section 42, has been undertaken.
8          (3)   Where regulations (other than regulations to which
9                subsection (2) applies) continue in force under subsection (1),
10               the regulations expire at the close of the last day of the period of
11               3 years beginning on the date on which the code of practice
12               prescribed by the regulations first took effect unless, within that
13               period --
14                 (a) the Commissioner undertakes a review of the code of
15                       practice; and
16                 (b) in undertaking the review, the Commissioner follows the
17                       consultation procedures set out in section 44.
18         (4)   Regulations made under the Fair Trading Act 1987 section 84
19               prescribing an interim code of practice in accordance with
20               section 43(2) of that Act and that were in force immediately
21               before the commencement of this section continue in force after
22               that commencement as if they were made under section 46.

23   53.         Transitional provisions relating to undertakings under Fair
24               Trading Act 1987 section 44
25         (1)   The following provisions apply to a deed executed under the
26               Fair Trading Act 1987 section 44 and that was in force
27               immediately before the commencement of this section --
28                 (a) the deed continues in force after that commencement;
29                 (b) a person must observe undertakings given by the person
30                       in the deed;
31                 (c) if, on the application of the Commissioner, the State
32                       Administrative Tribunal is satisfied that a person has
33                       failed to observe an undertaking given by the person in


                                                                             page 33
     Fair Trading Bill 2010
     Part 4            Codes of practice
     Division 3        Enforcement of codes of practice
     s. 54



1                       the deed, the State Administrative Tribunal may order
2                       the person --
3                          (i) to observe the undertaking; and
4                         (ii) in the case of an undertaking to rectify the
5                               consequence of a contravention of a code of
6                               practice -- to observe the undertaking within a
7                               time specified by the State Administrative
8                               Tribunal in the order.
9          (2)   A person who contravenes subsection (1)(b) commits an
10               offence.
11               Penalty: a fine of $10 000.
12         (3)   A prosecution for an offence under subsection (2) can be
13               instituted only by the Commissioner, and only with leave of the
14               State Administrative Tribunal given when making an order
15               under subsection (1)(c).
16         (4)   Section 47(3) to (6) apply in relation to proceedings under
17               subsection (1)(c) as if they were proceedings for an order under
18               that section.

19   54.         Transitional provision relating to contravention of existing
20               code of practice
21         (1)   This section applies if --
22                (a) before the commencement of section 52, a person has
23                      carried on business in contravention of a prescribed code
24                      of practice applicable to the person; and
25                (b) the code of practice continues in force under section 52;
26                      and
27                (c) the person did not execute a deed under the Fair
28                      Trading Act 1987 section 44 in relation to the
29                      contravention of the code of practice before the
30                      commencement of this section.




     page 34
                                                       Fair Trading Bill 2010
                                           Codes of practice           Part 4
                             Enforcement of codes of practice     Division 3
                                                                         s. 54



1   (2)   If this section applies --
2            (a) the Commissioner can make an application under
3                  section 47 in respect of the contravention of the code of
4                  practice, as long as the application is made not later than
5                  6 months after the commencement of this section; and
6           (b) the State Administrative Tribunal can deal with the
7                  application under that section accordingly.




                                                                      page 35
     Fair Trading Bill 2010
     Part 5            Administrative provisions
     Division 1        Commissioner
     s. 55



1                    Part 5 -- Administrative provisions
2                            Division 1 -- Commissioner
3    55.         Commissioner
4          (1)   In this section --
5                executive officer has the meaning given by the Public Sector
6                Management Act 1994 section 3(1).
7          (2)   The Minister must, by notice published in the Gazette, designate
8                an executive officer of the Department as the Commissioner for
9                the purposes of this Act.
10         (3)   The Commissioner may be referred to by a title specified by the
11               Minister by notice published in the Gazette.

12   56.         General functions of Commissioner
13         (1)   The functions of the Commissioner include the following --
14                (a) to promote the interests of consumers and assist them to
15                      a greater awareness in relation to their assessment and
16                      use of goods and services;
17                (b) to collect, collate and disseminate information in respect
18                      of matters affecting the interests of consumers;
19                (c) to receive complaints from consumers concerning
20                      matters affecting their interests as consumers, to
21                      consider and, if the Commissioner considers it
22                      warranted, to investigate those complaints and to take
23                      whatever action in respect of those complaints as seems
24                      proper to the Commissioner;
25                (d) to receive complaints of fraudulent or deceptive
26                      practices in relation to matters that affect or are likely to
27                      affect the interests of consumers, and to make whatever
28                      investigations and inquiries and to take whatever other
29                      action in respect of those complaints as seems proper to
30                      the Commissioner;


     page 36
                                                        Fair Trading Bill 2010
                                    Administrative provisions           Part 5
                                              Commissioner         Division 1
                                                                          s. 56



1           (e)    to advise and assist consumers who seek from the
2                  Commissioner information or guidance on matters
3                  affecting their interests as consumers;
4            (f)   to encourage and undertake the dissemination of
5                  information concerning consumer affairs to producers,
6                  manufacturers and suppliers of goods or services;
7           (g)    to perform any other functions that are conferred or
8                  imposed on the Commissioner by this Act or any other
9                  Act.
10   (2)   Without limiting the generality of subsection (1), the
11         Commissioner is to --
12          (a) make whatever recommendations to the Minister the
13               Commissioner considers necessary or desirable in the
14               interests of consumers and, in particular, investigate and
15               make recommendations to the Minister in relation to any
16               matters that concern the need for, or desirability of,
17               legislative or administrative action in the interests of
18               consumers;
19          (b) advise the Minister on any matters affecting the interests
20               of consumers that the Minister may refer to the
21               Commissioner;
22          (c) make recommendations to the Minister for the
23               establishment and maintenance of means by which --
24                  (i) matters that affect the interests of consumers and
25                        of persons engaged in the production,
26                        manufacture, preparation or supply of goods or
27                        in commerce or in the provision of services may
28                        receive adequate consideration; and
29                 (ii) information concerning those matters and
30                        considerations may be widely disseminated.
31   (3)   The Commissioner may cooperate, associate or consult with
32         organisations that have the power to make investigations of the
33         nature referred to in subsection (2)(a).


                                                                      page 37
     Fair Trading Bill 2010
     Part 5            Administrative provisions
     Division 1        Commissioner
     s. 57



1    57.         Commissioner may issue warnings or information
2          (1)   The Commissioner may publish (in any form) a statement
3                identifying and giving warnings or information about any of the
4                following --
5                  (a) goods that are unsatisfactory or dangerous and persons
6                        who supply or are likely to supply those goods;
7                  (b) services supplied in an unsatisfactory or dangerous
8                        manner and persons who supply or are likely to supply
9                        those services;
10                 (c) unfair business practices and persons who engage or are
11                       likely to engage in those practices;
12                 (d) any other matter that adversely affects or may adversely
13                       affect the interests of consumers in connection with the
14                       acquisition by them of goods or services.
15         (2)   A statement under subsection (1) may identify particular goods,
16               services, business practices, persons, corporate names, business
17               names and trading names.
18         (3)   The Commissioner must not make or issue a statement under
19               this section unless satisfied that it is in the public interest to do
20               so.

21   58.         Instituting or defending legal proceedings on behalf of
22               consumers or businesses
23         (1)   This section applies where --
24                (a) after a complaint or matter has been made or referred to
25                      the Department, the Commissioner is satisfied --
26                         (i) that a consumer has a cause of action or a good
27                              defence to an action; and
28                        (ii) that it is in the public interest or proper to
29                              institute or defend legal proceedings on behalf of
30                              the consumer;
31                      or


     page 38
                                                         Fair Trading Bill 2010
                                     Administrative provisions           Part 5
                                               Commissioner         Division 1
                                                                           s. 58



1           (b)   the Commissioner is satisfied that it is proper to institute
2                 or defend legal proceedings on behalf of a business in
3                 relation to the supply or possible supply of goods or
4                 services in trade or commerce because a matter of public
5                 interest is involved.
6    (2)   If this section applies, the Commissioner may --
7             (a) where subsection (1)(a) applies, on behalf of the
8                   consumer, institute legal proceedings against any other
9                   person, or defend any proceedings brought against the
10                  consumer, with a view to enforcing or protecting the
11                  rights of the consumer in relation to any infringement or
12                  suspected infringement by that other person of those
13                  rights or of any of the provisions of any Act or any other
14                  law relating to the interests of consumers; or
15           (b) where subsection (1)(b) applies, on behalf of the
16                  business, institute legal proceedings against any other
17                  person, or defend any proceedings brought against the
18                  business.
19   (3)   The Commissioner must not institute or defend any proceedings
20         under this section --
21           (a) unless either --
22                   (i) the amount claimed or involved in either case
23                         does not exceed $100 000 or such greater amount
24                         as is prescribed for the purposes of this
25                         paragraph; or
26                  (ii) an order for specific performance of a contract,
27                         or an order in the nature of an order for specific
28                         performance of a contract, is the only remedy
29                         sought in the proceedings;
30                 and
31          (b) without first obtaining --
32                   (i) the written consent of the consumer or, as the
33                         case requires, the business, which once given


                                                                       page 39
     Fair Trading Bill 2010
     Part 5            Administrative provisions
     Division 1        Commissioner
     s. 59



1                                cannot be revoked unless the Commissioner
2                                consents to the revocation; and
3                         (ii)   the written consent of the Minister, which may
4                                be given subject to any conditions the Minister
5                                thinks fit.
6          (4)   The Commissioner may make any investigation or inquiry
7                under Part 6 that the Commissioner considers necessary or
8                desirable for the purposes of --
9                  (a) satisfying himself or herself that it is proper to institute
10                       or defend legal proceedings on behalf of a business
11                       under subsection (1)(b); and
12                 (b) instituting or defending those proceedings; and
13                 (c) conducting those proceedings.
14         (5)   Nothing in subsection (4) limits Part 6.

15   59.         Provisions applying to proceedings instituted or defended by
16               Commissioner
17         (1)   The following provisions apply in relation to any proceedings
18               instituted or defended by the Commissioner under section 58 on
19               behalf of a consumer or business --
20                 (a) the Commissioner has, on behalf of the consumer or
21                        business, in all respects the same rights in and control
22                        over the proceedings, including the right to settle any
23                        action or part of any action, as the consumer or business
24                        would have had in the conduct of those proceedings;
25                 (b) the Commissioner may, without consulting or seeking
26                        the consent of the consumer or business, conduct the
27                        proceedings in whatever manner the Commissioner
28                        thinks appropriate and proper;
29                 (c) any moneys (excluding costs) recovered by the
30                        Commissioner belong and must be paid to the consumer
31                        or business without deduction, and any amount awarded
32                        against the consumer or business must be paid by and is
33                        recoverable from the consumer or business;

     page 40
                                                               Fair Trading Bill 2010
                                           Administrative provisions           Part 5
                                                     Commissioner         Division 1
                                                                                 s. 60



1                 (d)    in all cases the costs of the proceedings must be borne
2                        by or paid to and retained by the Commissioner as the
3                        case may require;
4                  (e)   if any party to the proceedings files a counterclaim, or if
5                        the consumer or business on whose behalf the
6                        proceedings are being defended is entitled to file a
7                        counterclaim, and that counterclaim is not related to the
8                        cause of action and in no way relates to the interests of
9                        the consumer as a consumer or, as the case requires, the
10                       interests of the business as a business, the court hearing
11                       the proceedings --
12                          (i) must, on the application of the Commissioner,
13                                order that the counterclaim be heard separately
14                                and that the consumer or business be a party to
15                                the counterclaim in the consumer's or business's
16                                own right; and
17                         (ii) may make any other orders or give any directions
18                                in that behalf the court thinks fit.
19         (2)   Any money that the Commissioner becomes liable to pay by
20               virtue of this section is to be charged to the Consolidated
21               Account, and this Act, without any further appropriation, is
22               sufficient authority for the payment of the money.

23   60.         Delegation by Commissioner
24         (1)   The Commissioner may delegate to any other person employed
25               in the Department any power or duty of the Commissioner
26               under a provision of this or any other Act.
27         (2)   The delegation must be in writing signed by the Commissioner.
28         (3)   A person to whom a power or duty is delegated under this
29               section cannot delegate that power or duty.
30         (4)   A person exercising or performing a power or duty that has been
31               delegated to the person under this section is to be taken to do so
32               in accordance with the terms of the delegation unless the
33               contrary is shown.

                                                                             page 41
     Fair Trading Bill 2010
     Part 5            Administrative provisions
     Division 2        Offence
     s. 61



1          (5)   Nothing in this section limits the ability of the Commissioner to
2                perform a function through an officer or agent.
3    61.         Judicial notice
4                All courts, judges and persons acting judicially must take
5                judicial notice of --
6                  (a) the official signature of every person who is for the time
7                        being, and every person who has at any time been, the
8                        Commissioner; and
9                  (b) the fact that the person holds or has held that office.

10                              Division 2 -- Offence
11   62.         Advertisements not to imply approval by consumer affairs
12               authority
13         (1)   In this section --
14               consumer affairs authority --
15                 (a) means --
16                          (i) the Department or the chief executive officer or
17                               the Commissioner; or
18                         (ii) any person, or statutory body or authority,
19                               appointed or constituted under any law of the
20                               Commonwealth or of any State or Territory of
21                               the Commonwealth and having powers,
22                               functions and duties under the laws of the
23                               Commonwealth or that State or Territory similar
24                               to those of the Department or the chief executive
25                               officer or the Commissioner under the laws of
26                               this State;
27                        and
28                 (b) includes --
29                          (i) any officer of the Department; and
30                         (ii) any officer or employee of a statutory body or
31                               authority referred to in paragraph (a)(ii) of this
32                               definition;

     page 42
                                                         Fair Trading Bill 2010
                                     Administrative provisions           Part 5
                                                      Offence       Division 2
                                                                           s. 62



1          publish includes --
2            (a) include in a newspaper or other publication published in
3                 this State;
4           (b) disseminate by the exhibition or broadcast of a
5                 photograph, slide, film, video recording, audio recording
6                 or other recording of images or sound;
7            (c) broadcast by radio or for television;
8           (d) include on an internet website or otherwise publicly
9                 disseminate by means of the internet;
10           (e) publicly exhibit in, on, over or under any building,
11                vehicle or place, or in the air, in view of persons in or on
12                any street or public place;
13           (f) include in a document gratuitously sent or delivered to
14                any person or thrown or left on premises occupied by
15                any person or left on a vehicle;
16          (g) make verbally to any person.
17   (2)   A person must not publish or cause to be published any
18         statement --
19           (a) that is intended or is apparently intended to promote the
20                sale, hiring or leasing of goods, or the sale of an estate
21                or interest in any land or building, or the letting or
22                leasing of any land or building or part of a building, or
23                the use of a service rendered for fee or reward; and
24           (b) that states, either expressly or by implication, that any
25                consumer affairs authority has approved, or has
26                refrained from disapproving, the statement or any
27                material particular in the statement or any claim made in
28                the statement or any goods or services depicted or
29                described, whether by a trade name or otherwise, in the
30                statement.
31         Penalty: a fine of $10 000.




                                                                       page 43
    Fair Trading Bill 2010
    Part 5            Administrative provisions
    Division 2        Offence
    s. 62



1      (3)    It is a defence in any proceedings for an offence under
2             subsection (2) if the accused satisfies the court that, before the
3             publication of the statement, the Minister consented in writing
4             to its publication.




    page 44
                                                         Fair Trading Bill 2010
                                Investigation and enforcement            Part 6
                                                 Interpretation     Division 1
                                                                           s. 63



1          Part 6 -- Investigation and enforcement
2                     Division 1 -- Interpretation
3    63.   Terms used
4          In this Part --
5          authorised person means --
6            (a) the Commissioner; and
7            (b) in relation to a power of the Commissioner under a
8                   provision of this Act or any other Act, a person to whom
9                   that power is delegated under section 60; and
10           (c) an investigator;
11         investigator means a person designated under section 64 as an
12         investigator;
13         motor vehicle has the meaning given in the Road Traffic
14         Act 1974 section 5(1).

15                      Division 2 -- Investigators
16   64.   Appointment of investigators
17         The Commissioner may designate any of the following persons
18         as an investigator for the purposes of this Part --
19           (a) any person employed in the Department;
20           (b) any person who --
21                   (i) is an officer of a Public Sector agency that
22                          provides services to the Department; and
23                  (ii) assists in the exercise of the Commissioner's
24                          functions under this Act;
25           (c) any person engaged by the chief executive officer to
26                 assist in the exercise of the Commissioner's functions
27                 under this Act.




                                                                       page 45
     Fair Trading Bill 2010
     Part 6            Investigation and enforcement
     Division 2        Investigators
     s. 65



1    65.         Certificate of appointment as investigator
2          (1)   The Commissioner is to provide each investigator with a
3                document, signed by the Commissioner, certifying that the
4                person is entitled to exercise the powers of an investigator.
5          (2)   A person to whom a document is provided under this section
6                and who ceases to be an investigator must return the document
7                to the Commissioner as soon as practicable.
8          (3)   A person who contravenes subsection (2) without reasonable
9                excuse, the onus of proving which is on the person, commits an
10               offence.
11               Penalty: a fine of $1 000.

12   66.         Investigators to produce certificate of appointment on
13               demand
14               An investigator must produce the document provided under
15               section 65 when demanded by a person in respect of whom the
16               investigator performs, has performed, or is proposing to perform
17               any function under this Act or another Act.

18   67.         Persons assisting investigators
19         (1)   Where an investigator is exercising any of the investigator's
20               powers under this Part, a person (the assistant), including an
21               interpreter, may accompany the investigator to assist the
22               investigator if the investigator considers the assistance is
23               necessary.
24         (2)   The assistant --
25                (a) may do such things and in such manner as the
26                      investigator reasonably requires to assist the investigator
27                      to exercise the investigator's powers; but
28                (b) must not do anything that the investigator does not have
29                      power to do, except as permitted under a warrant under
30                      Division 3.



     page 46
                                                               Fair Trading Bill 2010
                                      Investigation and enforcement            Part 6
                                                     General powers       Division 3
                                                                                 s. 68



1          (3)   Anything done lawfully by the assistant is taken for all purposes
2                to have been done by the investigator.

3                          Division 3 -- General powers
4    68.         Investigation and inquiry by Commissioner
5          (1)   The Commissioner may, of the Commissioner's own motion,
6                make any investigation or inquiry that the Commissioner
7                considers necessary or expedient for the purposes of carrying
8                out the Commissioner's functions under this Act or any other
9                Act.
10         (2)   An authorised person may make an investigation or inquiry
11               under this section on behalf of the Commissioner.

12   69.         Power of Commissioner to investigate, inquire and obtain
13               information
14         (1)   For the purposes of carrying out any investigation or inquiry in
15               the course of carrying out the Commissioner's functions under
16               this Act or any other Act, an authorised person may --
17                 (a) require any person --
18                         (i) to give whatever information the authorised
19                               person requires in relation to any matter the
20                               subject of an investigation or inquiry; and
21                        (ii) to answer any question put to the person in
22                               relation to any matter the subject of an
23                               investigation or inquiry;
24                       and
25                 (b) require any person to produce any document or thing
26                       relating to an investigation or inquiry; and
27                 (c) enter at all reasonable times and search any premises or
28                       motor vehicle named in a warrant obtained in
29                       accordance with this Division and exercise the powers
30                       set out in the warrant; and



                                                                             page 47
     Fair Trading Bill 2010
     Part 6            Investigation and enforcement
     Division 3        General powers
     s. 69



1               (d)   make a copy or abstract of any document produced or
2                     inspected under this section, or of any entry made in the
3                     document.
4       (2)    A requirement made under subsection (1)(a) --
5               (a) may be made orally or by notice in writing served on the
6                     person required to give information or answer a
7                     question, as the case requires; and
8               (b) must specify the time at or within which the information
9                     is to be given or the question is to be answered, as the
10                    case requires; and
11              (c) may, by its terms, require that the information or answer
12                    required --
13                       (i) be given orally or in writing; and
14                      (ii) be given at or sent or delivered to any place
15                            specified in the requirement; and
16                     (iii) in the case of written information or answers, be
17                            sent or delivered by any means specified in the
18                            requirement; and
19                     (iv) be given on oath or affirmation or by statutory
20                            declaration.
21      (3)    An authorised person may administer an oath or affirmation or
22             witness a statutory declaration for the purposes of
23             subsection (2)(c)(iv).
24      (4)    A requirement made under subsection (1)(b) --
25              (a) must be made by notice in writing served on the person
26                    required to produce a document or thing, unless the
27                    circumstances require the authorised person to have
28                    immediate access to the document or thing, in which
29                    case the requirement may be given orally; and
30              (b) must specify the time at or within which the document
31                    or thing is to be produced; and



     page 48
                                                               Fair Trading Bill 2010
                                      Investigation and enforcement            Part 6
                                                     General powers       Division 3
                                                                                 s. 70



1                  (c)   may, by its terms, require that the document or thing
2                        required be produced --
3                          (i) at any place specified in the requirement; and
4                         (ii) by any means specified in the requirement.
5          (5)   Where, under subsection (1)(a) or (b), an authorised person
6                orally requires a person to give any information, answer any
7                question or produce any document or thing, the authorised
8                person must inform the other person that the other person is
9                required, under this Act or another Act, to give the information,
10               answer the question or produce the document or thing, as the
11               case requires.
12         (6)   Where, under subsection (1)(a) or (b), a person is required by
13               notice in writing to give any information, answer any question
14               or produce any document or thing, the notice must state that the
15               person is required, under this Act or another Act, to give the
16               information, answer the question or produce the document or
17               thing, as the case requires.

18   70.         Conduct of interviews
19         (1)   An interview conducted by an authorised person under
20               section 69(1)(a) must be conducted in private if --
21                 (a) the authorised person considers it appropriate; or
22                 (b) the person being interviewed so requests.
23         (2)   Subsection (1) does not limit the operation of section 67 or
24               prevent a representative of the person being interviewed from
25               being present at the interview.
26         (3)   Subsection (1) may be invoked during an interview by --
27                (a) the authorised person; or
28                (b) the person being interviewed.
29         (4)   If subsection (1) is invoked during an interview, the subsection
30               applies to the remainder of the interview.



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1    71.         Warrant to enter premises or motor vehicle
2          (1)   If an authorised person considers in a particular case that there
3                are reasonable grounds for believing that entry to premises or a
4                motor vehicle is necessary for the purposes of carrying out any
5                investigation or inquiry in the course of carrying out the
6                Commissioner's functions under this Act or any other Act, the
7                authorised person may apply to a magistrate or justice of the
8                peace for a warrant to be issued in respect of those premises or
9                that motor vehicle.
10         (2)   An application for a warrant must --
11                (a) be in writing; and
12                (b) be accompanied by a notice in writing from the
13                      authorised person stating that the person considers in the
14                      particular case that there are reasonable grounds for
15                      believing that entry to premises or a motor vehicle is
16                      necessary for the purposes of carrying out an
17                      investigation or inquiry in the course of carrying out the
18                      Commissioner's functions under this Act or another Act;
19                      and
20                (c) set out the grounds for seeking the warrant; and
21                (d) describe the premises or motor vehicle that are to be
22                      entered.
23         (3)   A magistrate or justice of the peace to whom an application is
24               made under this section must refuse it if --
25                (a) the application does not comply with the requirements
26                     of this Act; or
27                (b) when required to do so by the magistrate or justice of
28                     the peace, the applicant does not give to the magistrate
29                     or justice of the peace more information about the
30                     application.
31         (4)   The information in an application or given to a magistrate or
32               justice of the peace under this section must be verified before
33               the magistrate or justice of the peace on oath or affirmation or

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                                                     General powers       Division 3
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1                by affidavit, and the magistrate or justice of the peace may for
2                that purpose administer an oath or affirmation or take an
3                affidavit.

4    72.         Warrants by telephone, fax or other electronic means
5          (1)   If an authorised person requires a warrant urgently, or a
6                magistrate or justice of the peace is not available within a
7                reasonable distance of the authorised person, the authorised
8                person may apply to a magistrate or justice of the peace by
9                telephone, fax or other electronic means for a warrant under
10               section 71.
11         (2)   The magistrate or justice of the peace may --
12                (a) require communication by voice to the extent that it is
13                     practicable in the circumstances; and
14                (b) make a recording of the whole or any part of any such
15                     communication by voice.
16         (3)   Before applying for the warrant, the authorised person must
17               prepare an affidavit that sets out the grounds on which the
18               warrant is sought.
19         (4)   If it is necessary to do so, the authorised person may apply for
20               the warrant before the affidavit is sworn or affirmed.
21         (5)   The magistrate or justice of the peace may complete and sign
22               the same warrant that the magistrate or justice of the peace
23               would issue under section 74 if the application had been made
24               under section 71 if the magistrate or justice of the peace is
25               satisfied that there are reasonable grounds for issuing the
26               warrant, after having --
27                 (a) considered the terms of the affidavit; and
28                 (b) received such further information (if any) as the
29                       magistrate or justice of the peace requires concerning
30                       the grounds on which the issue of the warrant is sought.




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1    73.         Further provisions relating to warrants by telephone etc.
2          (1)   If a magistrate or justice of the peace completes and signs a
3                warrant under section 72(5) --
4                   (a) the magistrate or justice of the peace must --
5                          (i) tell the authorised person what the terms of the
6                                warrant are; and
7                         (ii) tell the authorised person the day on which and
8                                the time at which the warrant was signed; and
9                        (iii) tell the authorised person the day (not more than
10                               one week after the magistrate or justice of the
11                               peace completes and signs the warrant) on which
12                               the warrant ceases to have effect; and
13                       (iv) record on the warrant the reasons for issuing the
14                               warrant;
15                      and
16                 (b) the authorised person must --
17                         (i) complete a form of warrant in the same terms as
18                               the warrant completed and signed by the
19                               magistrate or justice of the peace; and
20                        (ii) write on the form the name of the magistrate or
21                               justice of the peace and the day on which and the
22                               time at which the warrant was signed.
23         (2)   The authorised person must also, not later than the day after the
24               day of expiry or execution of the warrant, whichever is the
25               earlier, send to the magistrate or justice of the peace --
26                 (a) the form of warrant completed by the authorised person;
27                        and
28                 (b) the affidavit referred to in section 72(3), which must
29                        have been duly sworn or affirmed.




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1          (3)   When the magistrate or justice of the peace receives those
2                documents, the magistrate or justice of the peace must --
3                  (a) attach them to the warrant that the magistrate or justice
4                      of the peace completed and signed; and
5                 (b) deal with them in the way in which the magistrate or
6                      justice of the peace would have dealt with them if the
7                      application had been made under section 71.
8          (4)   A form of warrant duly completed under subsection (1)(b) is
9                authority for the same powers as are authorised by the warrant
10               signed by the magistrate or justice of the peace.
11         (5)   If a magistrate or justice of the peace completes and signs a
12               warrant under section 72(5), in any proceedings a court must
13               assume, unless the contrary is proved, that the exercise of a
14               power was not authorised by the warrant if --
15                  (a) it is material, in those proceedings, for the court to be
16                      satisfied that the exercise of the power was authorised
17                      by this section; and
18                 (b) the warrant is not produced in evidence.

19   74.         Issue of warrant
20         (1)   A magistrate or justice of the peace to whom an application is
21               made under section 71 may issue a warrant if satisfied that the
22               authorised person has reasonable grounds for believing that
23               entry and inspection of the premises or motor vehicle are
24               necessary for the purpose of carrying out an investigation or
25               inquiry under this Act or another Act.
26         (2)   A warrant under subsection (1) authorises the person to whom
27               the warrant is issued --
28                 (a) to enter the premises or motor vehicle named in the
29                      warrant and search the premises or motor vehicle and
30                      any thing that is found on the premises or in or on the
31                      motor vehicle; and



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1               (b)   to inspect documents and other things, and take copies
2                     or extracts from documents found on the premises or in
3                     or on the motor vehicle; and
4               (c)   to inspect, examine, take measurements of, or conduct
5                     tests on, any thing found on the premises, or in or on the
6                     motor vehicle, that is relevant to the investigation or
7                     inquiry; and
8               (d)   to take and remove for examination, analysis or testing a
9                     sample of any thing found on the premises, or in or on
10                    the motor vehicle, that is relevant to the investigation or
11                    inquiry, without paying for the sample; and
12              (e)   to inspect any service carried on in the premises or from
13                    the motor vehicle; and
14              (f)   to take measurements or recordings of any sort; and
15              (g)   to take photographs, sound and video recordings and
16                    drawings of the premises or motor vehicle searched, and
17                    of any thing found in those premises or in or on that
18                    motor vehicle, if the person exercising the power has
19                    reasonable grounds for believing that the photographs or
20                    sound or video recordings or drawings may be relevant
21                    to the purposes of the entry and search; and
22              (h)   to seize things that may be seized under section 79.
23      (3)    The warrant must state --
24              (a) the purpose for which the warrant is issued; and
25              (b) the name of the person to whom the warrant is issued;
26                   and
27              (c) a description of the premises or motor vehicle that may
28                   be entered.
29      (4)    The magistrate or justice of the peace who issues a warrant must
30             cause a record to be made of particulars of the grounds that the
31             magistrate or justice of the peace has relied on to justify the
32             issue of the warrant.



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                                                     General powers       Division 3
                                                                                 s. 75



1    75.         Person with knowledge of computer or computer network
2                or other data storage devices to assist access
3          (1)   In this section --
4                access information includes access codes, passwords, and
5                encryption keys, and any related information that enables access
6                to a computer or other data storage device;
7                specified person means a person who --
8                  (a) is the owner or lessee of the computer or other data
9                         storage device, or is in possession or control of the
10                        computer or other data storage device, an employee of
11                        any of the above, or any service provider who provides
12                        service to the above and holds access information; and
13                 (b) has relevant knowledge of --
14                           (i) the computer or a computer network of which the
15                                computer or other data storage device forms a
16                                part; or
17                          (ii) measures applied to protect data held in, or
18                                accessible from, the computer or other data
19                                storage device.
20         (2)   A person executing a warrant under section 74 may require a
21               specified person to provide access information and other
22               information or assistance that is reasonable and necessary to
23               allow the person executing the warrant to access data held in, or
24               accessible from --
25                 (a) a computer that is on the premises or in or on the motor
26                       vehicle named in the warrant; or
27                 (b) any other data storage device that is on the premises or
28                       in or on the motor vehicle named in the warrant.

29   76.         Further powers conferred by warrant
30         (1)   A warrant under section 74 also authorises the person to whom
31               the warrant is issued --
32                 (a) to bring and use in the premises or in or on the motor
33                      vehicle named in the warrant any equipment, to use any

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1                        equipment found in the premises or in or on the motor
2                        vehicle, and to extract any electricity or other form of
3                        energy from the premises or vehicle to operate the
4                        equipment that it is reasonable to use in the
5                        circumstances, for the purposes of executing the
6                        warrant; and
7                 (b)    to access and copy intangible material from computers
8                        and other data storage devices located at or accessible
9                        from the premises or vehicle named in the warrant
10                       (including copying by means of previewing, cloning, or
11                       other forensic methods either before or after removal for
12                       examination); and
13                 (c)   to use any reasonable measures to --
14                          (i) gain access to any computer or other data storage
15                               device that is at the premises or in or on the
16                               vehicle named in the warrant, or that can be
17                               accessed from a computer or other data storage
18                               device that is at those premises or in or on that
19                               vehicle; and
20                         (ii) create a forensic copy of any material in such a
21                               computer or other data storage device.
22         (2)   This section does not limit section 74, 75 or 78.

23   77.         Compensation for damage to equipment or data
24         (1)   This section applies where --
25                (a) either --
26                         (i) damage is caused to equipment as a result of it
27                              being operated as mentioned in section 76; or
28                        (ii) the data recorded on or accessible from the
29                              equipment is damaged;
30                      and




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                                                     General powers       Division 3
                                                                                 s. 78



1                 (b)   the damage was caused as a result of --
2                          (i) insufficient care being exercised in selecting the
3                              person who was to operate the equipment; or
4                         (ii) insufficient care being exercised by the person
5                              operating the equipment.
6          (2)   Where this section applies, the owner of the equipment or the
7                user of data recorded on or accessible from the equipment is
8                entitled to compensation for the damage.
9          (3)   For the purposes of subsection (1), damage to data includes
10               damage by erasure of data or addition of other data.
11         (4)   An application for compensation is to be made to the
12               Commissioner.
13         (5)   In determining the amount of compensation payable, regard is
14               to be had to whether the occupier of the premises (or the person
15               in charge of the motor vehicle, as the case requires) and his or
16               her employees and agents, if they were available at the time, had
17               provided any warning or guidance as to the operation of the
18               equipment that was appropriate in the circumstances.
19         (6)   Any compensation that is payable under this section is to be
20               charged to the Consolidated Account, and this Act, without
21               further appropriation, is sufficient authority for the payment of
22               the compensation.

23   78.         Execution of warrant
24         (1)   Entry authorised by a warrant under section 74 may be made
25               with whatever assistance and equipment is reasonably necessary
26               for the purpose for which entry is required.
27         (2)   A person executing a warrant under section 74, and a person
28               assisting that person, may use any force that is reasonably
29               necessary for the execution of the warrant.
30         (3)   A warrant authorising the entry and search of a motor vehicle
31               authorises the person executing the warrant to enter any place

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1                where the person has reasonable grounds to believe that the
2                vehicle is, for the purpose of locating it and searching it.
3          (4)   Before entering any premises or motor vehicle under a warrant,
4                the person executing the warrant must show the person, if any,
5                who gives the person entry to the premises or motor vehicle --
6                  (a) in the case of the Commissioner, a document signed by
7                        the Minister and certifying that the person is the
8                        Commissioner; and
9                  (b) in the case of an authorised person other than the
10                       Commissioner, a document signed by the Commissioner
11                       and certifying that that person is an authorised person.
12         (5)   The person executing the warrant must produce it for inspection
13               if asked by --
14                  (a) the occupier or a person in charge of the premises; or
15                 (b) a person in charge of the motor vehicle.
16         (6)   When executing a warrant, an authorised person may require
17               any person who has the control of any premises, motor vehicle
18               or thing that the authorised person is authorised to enter or
19               inspect to furnish reasonable access to it and to give other
20               reasonable assistance.
21         (7)   A warrant ceases to have effect on the earliest of the
22               following --
23                 (a) at the end of the period of one month after its issue;
24                 (b) if it is withdrawn by the magistrate or justice of the
25                      peace who issued it;
26                 (c) when it is executed.

27   79.         Seizure
28         (1)   An authorised person may seize a document or other thing that
29               is produced or given in response to a requirement under this
30               Division, or that is found as the result of executing a warrant
31               under this Division.


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                                                     General powers       Division 3
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1          (2)   However, a document or other thing cannot be seized unless the
2                authorised person reasonably suspects that the document or
3                thing --
4                  (a) is being, or has been, used to commit a breach of this
5                        Act or another Act that confers functions on the
6                        Commissioner; or
7                  (b) may provide evidence of the commission of a breach of
8                        this Act or another Act that confers functions on the
9                        Commissioner.
10         (3)   As soon as practicable after the document or other thing is
11               seized, the authorised person must give a receipt for it to the
12               person from whom it was seized.
13         (4)   The receipt must clearly describe the document or thing seized
14               and its condition.
15         (5)   If, for any reason, it is not practicable to comply with
16               subsection (3), the authorised person must --
17                  (a) leave the receipt at the place of seizure; and
18                 (b) ensure the receipt is left in a reasonably secure way and
19                        in a conspicuous position.

20   80.         Copies of seized things to be provided
21         (1)   This section applies if the person executing a warrant relating to
22               premises seizes, under section 79 --
23                 (a) a document, film, computer file or other thing that can
24                      be readily copied; or
25                 (b) a storage device, the information in which can be readily
26                      copied.
27         (2)   Where this section applies, the person executing the warrant
28               must, if requested to do so by the occupier of the premises or
29               another person who apparently represents the occupier and who
30               is present when the warrant is executed, give a copy of the
31               document, film, computer file, thing or information to that
32               person as soon as practicable after the seizure.

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1          (3)   Subsection (2) does not apply if possession by the occupier of
2                the document, film, computer file, thing or information could
3                constitute an offence.

4    81.         Access to things seized
5          (1)   Until a thing seized under section 79 is forfeited or returned, the
6                person in whose custody the seized thing is must allow its
7                owner to inspect it and, if it is a document, to copy it.
8          (2)   Subsection (1) does not apply if it is impracticable or would be
9                unreasonable to allow the inspection or copying.

10   82.         Return of seized things
11         (1)   Where a document or other thing is seized under section 79, an
12               authorised person may retain the document or other thing for as
13               long as is reasonably necessary for the purposes of --
14                 (a) the investigation to which the document or other thing is
15                       relevant; and
16                 (b) any proceedings to which the document or other thing is
17                       relevant.
18         (2)   When the retention of the document or other thing ceases to be
19               reasonably necessary for those purposes, the authorised person
20               must ensure that the document or other thing is delivered to the
21               person who appears to the authorised person to be entitled to
22               possession of it.

23   83.         SAT review: seizure
24         (1)   A person aggrieved by the seizure of any thing under section 79
25               may apply to the State Administrative Tribunal for a review of
26               the decision to seize the thing.
27         (2)   In dealing with an application under subsection (1), the State
28               Administrative Tribunal may determine whether the thing
29               seized must be destroyed, disposed of, forfeited to the State,
30               restored to the person from whom it was seized or otherwise
31               dealt with.

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1          (3)   Subsection (2) does not limit the powers that the State
2                Administrative Tribunal Act 2004 gives the State Administrative
3                Tribunal.

4    84.         Forfeiture of seized thing
5          (1)   The Commissioner may determine that a thing seized under
6                section 79 is forfeited to the State if the authorised person who
7                seized the thing --
8                  (a) cannot find its owner, after making reasonable inquiries;
9                        or
10                 (b) cannot return the thing to the owner or other person
11                       entitled to possession of the thing, after making
12                       reasonable efforts.
13         (2)   In applying subsection (1) --
14                 (a) subsection (1)(a) does not require the authorised person
15                       to make inquiries if it would be unreasonable to make
16                       inquiries to find the owner; and
17                 (b) subsection (1)(b) does not require the authorised person
18                       to make efforts if it would be unreasonable to make
19                       efforts to return the thing to the owner or other person
20                       entitled to possession of the thing.
21         (3)   Regard must be had to a thing's nature, condition and value in
22               deciding --
23                 (a) whether it is reasonable to make inquiries or efforts; and
24                 (b) if making inquiries or efforts, what inquiries or efforts,
25                      including the period over which they are made, are
26                      reasonable.

27   85.         Dealing with forfeited things
28         (1)   On the forfeiture of a thing to the State under section 84, the
29               thing becomes the property of the State, and may be dealt with
30               as the chief executive officer considers appropriate.



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1          (2)   Without limiting subsection (1), the chief executive officer may
2                cause the thing to be destroyed, sold or disposed of.

3    86.         Privilege against self-incrimination doesn't apply
4          (1)   Where under section 69 a person is required to give any
5                information, or answer any question or produce any document
6                or thing --
7                  (a) that person cannot refuse to comply with that
8                        requirement on the ground that the information, answer,
9                        document or thing may tend to incriminate the person or
10                       render the person liable to any penalty; but
11                 (b) the information or answer given, or document or thing
12                       produced, by the person is not admissible in evidence in
13                       any proceedings against the person other than
14                       proceedings in respect of an offence against
15                       section 88(1)(b).
16         (2)   This section is without prejudice to the provisions of the
17               Evidence Act 1906 section 11.

18   87.         Information
19         (1)   Information concerning the affairs of a person that is obtained
20               under this Division by an authorised person may (for the
21               purposes of section 112 (which relates to the confidentiality of
22               information officially obtained)) be recorded, used or disclosed
23               on the basis that it has been acquired by the authorised person
24               for the purposes of this Act.
25         (2)   Where an authorised person copies a document under
26               section 69(1)(d) or when executing a warrant --
27                 (a) the authorised person may certify the copy as being a
28                       true and accurate copy of the document; and
29                 (b) in the absence of proof to the contrary, the certified copy
30                       is to be accepted by any court or tribunal as evidence of,
31                       and as having equal validity as, the original.



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                                                           Offences       Division 4
                                                                                 s. 88



1                               Division 4 -- Offences
2    88.         Failure to cooperate with investigation
3          (1)   A person commits an offence who, without reasonable excuse
4                (proof of which lies on the person), when required under
5                Division 3 to give any information, answer any question or
6                produce any document or thing --
7                  (a) fails to give that information or answer that question at
8                        or within the time specified in the requirement; or
9                  (b) gives any information or answer that is false or
10                       misleading in any material particular; or
11                 (c) fails to produce that document or thing at or within the
12                       time specified in the requirement.
13               Penalty: a fine of $10 000.
14         (2)   It is a defence in any proceeding for an offence under
15               subsection (1)(a) or (c) for the accused to show --
16                  (a) that, in the case of an alleged offence arising out of a
17                        requirement made orally under section 69, the
18                        authorised person did not, when making the
19                        requirement, inform the accused that he or she was
20                        required under this Act or the other Act that is relevant
21                        to give the information, answer the question or produce
22                        the document or thing, as the case requires; or
23                  (b) that, in the case of an alleged offence arising out of a
24                        requirement made by notice in writing under section 69,
25                        the notice did not state that the accused was required
26                        under this Act or the other Act that is relevant to give
27                        the information, answer the question or produce the
28                        document or thing, as the case requires; or
29                  (c) that the time specified in the requirement did not give
30                        the accused sufficient notice to enable him or her to
31                        comply with the requirement; or
32                  (d) that, in any case, the authorised person did not, before
33                        making the requirement, have reasonable grounds to

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1                       believe that compliance with the requirement would
2                       materially assist in the investigation or inquiry being
3                       carried out.

4    89.         Obstructing authorised person
5          (1)   A person must not prevent or attempt to prevent an authorised
6                person from entering premises or a motor vehicle in the exercise
7                of the authorised person's powers under section 69.
8                Penalty: a fine of $2 000.
9          (2)   A person must not obstruct or impede an authorised person in
10               the exercise of the authorised person's powers under section 69.
11               Penalty: a fine of $2 000.
12         (3)   A person must comply with a requirement to assist an
13               authorised person executing a warrant under section 74 when
14               requested to do so under section 75(2).
15               Penalty: a fine of $2 000.
16         (4)   A person must comply with a requirement to furnish reasonable
17               access to a place or motor vehicle, or to give other reasonable
18               assistance to an authorised person under section 78(6).
19               Penalty: a fine of $2 000.
20         (5)   For the purposes of this section, a reference to an authorised
21               person includes an assistant accompanying an investigator in
22               accordance with section 67.




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                                                           Preliminary      Division 1
                                                                                   s. 90



1                Part 7 -- Criminal and civil proceedings
2                             Division 1 -- Preliminary
3    90.         Term used: person involved in contravention
4                A reference in this Division to a person involved in a
5                contravention of a provision of this Act is to be read as a
6                reference to a person who --
7                  (a) has aided, abetted, counselled or procured the
8                        contravention; or
9                  (b) has induced, whether by threats or promises or
10                       otherwise, the contravention; or
11                 (c) has been in any way, directly or indirectly, knowingly
12                       concerned in, or party to, the contravention; or
13                 (d) has conspired with others to effect the contravention; or
14                 (e) has attempted to contravene the provision, or to do any
15                       act of a kind referred to in paragraph (a), (b), (c) or (d).

16                      Division 2 -- Criminal proceedings
17   91.         Time limit for commencing proceedings
18               Proceedings for an offence against this Act may be commenced
19               within 3 years after the alleged commission of the offence.

20   92.         Who may institute criminal proceedings
21         (1)   Prosecutions for offences against this Act may be instituted by
22               the Commissioner or by a person authorised in writing by the
23               Commissioner.
24         (2)   No other person may institute a prosecution for an offence
25               against this Act unless written consent to the institution of the
26               prosecution is given by --
27                 (a) the Commissioner; or



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     Division 2        Criminal proceedings
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1                 (b)   a person authorised in writing by the Commissioner to
2                       give consents under this section.
3          (3)   In proceedings for an offence against this Act, a document
4                giving consent to the institution of a prosecution and purporting
5                to have been signed by the Commissioner, or by an authorised
6                person, is evidence of that consent without proof of the
7                signature.

8    93.         Court of summary jurisdiction to be constituted by
9                magistrate
10               A court of summary jurisdiction dealing with an offence under
11               this Act is to be constituted by a magistrate.

12   94.         Other powers of courts in criminal proceedings
13         (1)   Where proceedings in the Supreme Court or the District Court
14               are taken against a person for contravening, or being involved in
15               a contravention of, a provision of this Act, the Court, in addition
16               to dealing with the offence charged, may --
17                 (a) grant an injunction under section 99 or 100 against the
18                       person in relation to --
19                         (i) the conduct that constitutes, or is alleged to
20                              constitute, the contravention; or
21                        (ii) other conduct of that kind;
22                       and
23                 (b) make an order under section 105 in relation to the
24                       contravention.
25         (2)   If a person is convicted of an offence against this Act, the court
26               by which the conviction was effected may order the offender to
27               reimburse the Department for the cost of purchasing or testing
28               any goods to which the conviction relates.
29         (3)   Where a person is, by any conviction or order of a court,
30               adjudged to pay a fine, or costs or other sum of money in



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1                respect of an offence against this Act, the court by which the
2                conviction or order was effected or made may --
3                  (a) exercise any power that the court has apart from this
4                        section; or
5                  (b) on the application of the Minister or the Commissioner,
6                        order that the amount unpaid be recoverable as if it were
7                        a judgment debt payable by the defaulter to the Crown
8                        under a judgment entered up in the court.

9    95.         Offences by directors, employers, and vicarious liability
10         (1)   Where a corporation within the meaning of the Corporations
11               Act 2001 (Commonwealth) or any other body of persons,
12               corporate or unincorporate, is convicted of an offence against
13               this Act, each person who, at the time of the commission of that
14               offence, was a director of the corporation or was the manager,
15               secretary or other similar officer of that body, or who purported
16               to act in any of those capacities, is also guilty of an offence
17               unless the person proves --
18                 (a) that the offence was committed without the person's
19                        knowledge, or that the person did not authorise or permit
20                        the commission of the offence; and
21                 (b) that the person was not in a position to influence the
22                        conduct of that corporation or body or, being in such a
23                        position, could not by the exercise of reasonable
24                        diligence have prevented the commission of the offence.
25         (2)   A person who is guilty of an offence by virtue of subsection (1)
26               is liable to a penalty not exceeding the penalty prescribed for the
27               offence of which the corporation or body was convicted.
28         (3)   Where the affairs of a body of persons are managed by its
29               members, subsection (1) applies in relation to the acts and
30               defaults of a member in connection with the member's function
31               of management as if the person were the manager of that body.
32         (4)   Where the employee or agent of a person (person A) is
33               convicted of an offence against this Act, each person (person B)

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1              who, at the time of the commission of the offence, was
2              person A's employer or principal --
3                (a) is also guilty of an offence, unless person B proves that
4                      person B could not by the exercise of reasonable
5                      diligence have prevented the commission of the offence
6                      of which person A was convicted; and
7                (b) is liable to a penalty not exceeding the penalty
8                      prescribed for the offence of which person A was
9                      convicted.
10      (5)    Where a person has committed an offence against the Australian
11             Consumer Law (WA) Part 2-1 or Part 2-2 or Part 3-1 (other than
12             Divisions 2 and 3), or would have committed an offence but for
13             the fact that the person could establish a defence under
14             section 96 or 97, and the contravention, or what would have
15             constituted the contravention, was due to the act or default of
16             another person --
17               (a) that other person --
18                        (i) is also guilty of an offence and liable to the same
19                              penalty as is provided for the offence against the
20                              Australian Consumer Law (WA) Part 2-1 or
21                              Part 2-2 or Part 3-1 (other than Divisions 2
22                              and 3); and
23                       (ii) may be charged and convicted of the offence,
24                              whether or not proceedings are taken against the
25                              first-mentioned person for the offence against the
26                              Australian Consumer Law (WA) Part 2-1 or
27                              Part 2-2 or Part 3-1 (other than Divisions 2
28                              and 3);
29                     and
30               (b) the first-mentioned person is a competent and
31                     compellable witness in any proceedings taken against
32                     that other person in respect of the offence.




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1    96.         Defence: reasonable mistake
2          (1)   In a prosecution under this Part for an offence against this Act,
3                it is a defence if the accused establishes that the contravention in
4                respect of which the proceeding was instituted was due to
5                reasonable mistake of fact, including a mistake of fact caused by
6                reasonable reliance on information supplied by another person.
7          (2)   However, subsection (1) does not apply in relation to
8                information relied upon by the accused that was supplied to the
9                accused by another person who was, at the time when the
10               contravention occurred --
11                 (a) an employee or agent of the accused; or
12                 (b) if the accused is a body corporate, a director, employee
13                      or agent of the accused.
14         (3)   If a defence provided by subsection (1) involves an allegation
15               that a contravention was due to reliance on information supplied
16               by another person, the accused is not entitled to rely on that
17               defence unless --
18                  (a) the court gives leave; or
19                 (b) the accused has, not later than 7 days before the day on
20                       which the hearing of the proceeding commences, served
21                       on the person who instituted the proceeding a notice in
22                       writing giving whatever information the accused then
23                       had that would identify or assist in identifying the other
24                       person.

25   97.         Defence: act or default of another person etc.
26         (1)   In a prosecution under this Part for an offence against this Act,
27               it is a defence if the accused establishes that --
28                  (a) the contravention in respect of which the proceeding
29                        was instituted was due to --
30                           (i) the act or default of another person; or
31                          (ii) an accident; or


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1                        (iii) some other cause beyond the accused's control;
2                       and
3                 (b)   the accused took reasonable precautions and could not
4                       by the exercise of due diligence have prevented the
5                       commission of the offence.
6          (2)   However, subsection (1) does not apply in relation to the act or
7                default of another person who was, at the time when the
8                contravention occurred --
9                  (a) an employee or agent of the accused; or
10                 (b) if the accused is a body corporate, a director, employee
11                       or agent of the accused.
12         (3)   If a defence provided by subsection (1) involves an allegation
13               that a contravention was due to the act or default of another
14               person, the accused is not entitled to rely on that defence
15               unless --
16                  (a) the court gives leave; or
17                 (b) the accused has, not later than 7 days before the day on
18                       which the hearing of the proceeding commences, served
19                       on the person who instituted the proceeding a notice in
20                       writing giving whatever information the accused then
21                       had that would identify or assist in identifying the other
22                       person.

23   98.         Defence: publication of advertisements in ordinary course of
24               business
25               In a proceeding under this Part in relation to a contravention of
26               this Act committed by the publication of an advertisement, it is
27               a defence if it is established --
28                 (a) that the accused is a person whose business it is to
29                       publish or arrange for the publication of advertisements;
30                       and
31                 (b) that the accused received the advertisement for
32                       publication in the ordinary course of business; and


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1                  (c)   that the accused did not know and had no reason to
2                        suspect that its publication would amount to a
3                        contravention of this Act.

4                          Division 3 -- Civil proceedings
5    99.         Injunctions in restraint of conduct
6          (1)   The Supreme Court or the District Court, on the application of
7                the Minister, the Commissioner or any other person, may grant
8                an injunction in whatever terms the Court determines to be
9                appropriate where the Court is satisfied that a person --
10                 (a) has engaged, or is proposing to engage, in conduct that
11                       constitutes or would constitute a contravention of a
12                       provision of this Act; or
13                 (b) is involved in a contravention of a provision of this Act.
14         (2)   The power of the Court to grant an injunction restraining a
15               person (person A) from engaging in conduct may be
16               exercised --
17                 (a) whether or not it appears to the Court that person A
18                       intends to engage again, or to continue to engage, in
19                       conduct of that kind; and
20                 (b) whether or not person A has previously engaged in
21                       conduct of that kind; and
22                 (c) whether or not there is an imminent danger of
23                       substantial damage to any person if person A engages in
24                       conduct of that kind.
25   100.        Other injunctions
26         (1)   The Supreme Court or the District Court, on the application of
27               the Commissioner, may grant an injunction in whatever terms
28               the Court determines to be appropriate where the Court is
29               satisfied that a person has engaged, or is proposing to engage, in
30               conduct that constitutes, or would constitute, or is involved in, a
31               contravention of --
32                 (a) an interim ban or a permanent ban under the Australian
33                       Consumer Law (WA) Part 3-3 Division 2; or

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1                (b)   a provision of any other legislation administered by the
2                      Minister or of an order made under any such legislation,
3                      being a provision relevant to the alleged contravention;
4                      or
5                (c)   a provision of a prescribed code of practice in force
6                      under Part 4 in respect of which the Commissioner has
7                      applied to the State Administrative Tribunal under
8                      section 47; or
9                (d)   a provision of an order of the State Administrative
10                     Tribunal under section 47.
11      (2)    If the Court is satisfied, on the application of the Commissioner,
12             that a person has engaged in conduct constituting, or is involved
13             in, a contravention of a provision of this Act, the Court may
14             grant an injunction requiring that person to take specified action
15             to remedy any adverse consequence of that conduct,
16             including --
17                (a) an order requiring that person or a person involved in
18                     the contravention to disclose, in the way and to the
19                     persons specified in the order, such information as is so
20                     specified, being information that the person has
21                     possession of or access to; or
22               (b) an order requiring the person or a person involved in the
23                     contravention to publish, at the person's own expense
24                     and in the way specified in the order, an advertisement
25                     in the terms specified in, or determined in accordance
26                     with, the order.

27   101.      Injunctions generally
28      (1)    An injunction granted under this Division may be, or include, an
29             injunction restraining a person from carrying on a business of
30             supplying goods or services (whether or not as part of, or
31             incidental to, the carrying on of another business) --
32               (a) for a specified period; or
33               (b) except on specified terms and conditions.


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1       (2)   The power of the Court to grant an injunction under this
2             Division requiring a person to do an act or thing may be
3             exercised --
4               (a) whether or not it appears to the Court that the person
5                     intends to refuse or fail again, or to continue to refuse or
6                     fail, to do that act or thing; and
7               (b) whether or not the person has previously refused or
8                     failed to do that act or thing; and
9               (c) whether or not there is an imminent danger of
10                    substantial damage to any person if the first-mentioned
11                    person refuses or fails to do that act or thing.

12   102.     Interim injunctions
13      (1)   An interim injunction may be granted under this Division
14            pending final determination of the application.
15      (2)   Where the Minister or the Commissioner makes an application
16            to the Court for the grant of an injunction under this Division,
17            the Court must not require the applicant or any other person, as
18            a condition of granting an interim injunction, to give any
19            undertakings as to damages or costs.
20      (3)   If, in a case to which subsection (2) does not apply, the Court
21            would, but for this subsection, require a person to give an
22            undertaking as to damages or costs, then --
23               (a) if the Minister gives the undertaking, the Court must
24                     accept the undertaking by the Minister; and
25              (b) the Court must not require a further undertaking from
26                     any other person.

27   103.     Final injunction by consent
28            A final injunction may, by consent of the parties, be granted
29            under this Division without proof that proper grounds for the
30            injunction exist.



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1    104.      Injunction may be rescinded or varied
2              An injunction under this Division may be rescinded or varied at
3              any time.

4    105.      Other orders
5       (1)    Without limiting the generality of section 99 or 100, if, in a
6              proceeding instituted under this Part, or for an offence against
7              this Act, the Supreme Court or the District Court is satisfied that
8              a person has suffered, or is likely to suffer, loss or damage by
9              reason of conduct of another person that contravened a
10             provision of this Act, the Court may make such order or orders
11             as the Court thinks appropriate against the person who engaged
12             in the conduct or a person who was involved in the
13             contravention for the purpose of compensating the
14             first-mentioned person wholly or in part for the loss or damage
15             or of preventing or reducing the extent of the loss or damage.
16      (2)    The Court may make an order under this section whether or not
17             an injunction under this Division or any other relief is granted or
18             any other order is made in the proceedings.
19      (3)    Whether or not other proceedings have been instituted under
20             this Act in relation to a contravention, the Court may make
21             orders under this section --
22               (a) on the application of a person who has suffered, or is
23                     likely to suffer, loss or damage by reason of the
24                     contravention; or
25               (b) on the application of the Commissioner on behalf of one
26                     or more such persons made with the written consent of
27                     each such person.
28      (4)    The orders that may be made under this section include the
29             following --
30               (a) an order declaring the whole or any part of a contract
31                    made between the person who suffered, or is likely to
32                    suffer, the loss or damage and the person who engaged
33                    in the conduct or a person who was involved in the

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1          contravention constituted by the conduct, or of a
2          collateral arrangement relating to such a contract, to be
3          void and, if the Court thinks fit, to have been void from
4          its beginning or at all times on and after such date,
5          before the date on which the order is made, as is
6          specified in the order;
7    (b)   an order varying such a contract or arrangement in such
8          manner as is specified in the order and, if the court
9          thinks fit, declaring the contract or arrangement to have
10         had effect as so varied on and after such date, before the
11         date on which the order is made, as is so specified;
12   (c)   an order refusing to enforce any or all of the provisions
13         of such a contract or arrangement;
14   (d)   an order directing the person who engaged in the
15         conduct or a person who was involved in the
16         contravention constituted by the conduct to refund
17         money or return property to the person who suffered the
18         loss or damage;
19   (e)   an order directing the person who engaged in the
20         conduct or a person who was involved in the
21         contravention constituted by the conduct to pay to the
22         person who suffered the loss or damage the amount of
23         the loss or damage;
24   (f)   an order directing the person who engaged in the
25         conduct or a person who was involved in the
26         contravention constituted by the conduct, at the person's
27         own expense, to supply specified services to the person
28         who suffered, or is likely to suffer, the loss or damage;
29   (g)   an order, in relation to an instrument creating or
30         transferring an interest in land, directing the person who
31         engaged in the conduct or a person who was involved in
32         the contravention constituted by the conduct to execute
33         an instrument that --
34            (i) varies, or has the effect of varying, the
35                 first-mentioned instrument; or

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1                       (ii)   terminates or otherwise affects, or has the effect
2                              of terminating or otherwise affecting, the
3                              operation or effect of the first-mentioned
4                              instrument.
5       (5)    The powers conferred on the Supreme Court and the District
6              Court under this section in relation to a contract or arrangement
7              do not affect any powers that any other court may have in
8              relation to the contract or arrangement in proceedings instituted
9              in that other court in respect of the contract or arrangement.

10   106.      Power of Supreme Court and District Court to prohibit
11             payment or transfer of money or other property
12      (1)    In this section, a person (the first person) is an associate of
13             another person if --
14               (a) the first person holds money or other property on behalf
15                      of the other person; or
16               (b) if the other person is a body corporate, the first person is
17                      a wholly-owned subsidiary (within the meaning of the
18                      Corporations Act 2001 (Commonwealth)) of the other
19                      person.
20      (2)    A Court may, on the application of the Minister or the
21             Commissioner, make an order or orders of the kind specified in
22             subsection (4) if --
23               (a) proceedings of a kind referred to in subsection (3) have
24                    been taken against a person, or proceedings of a kind
25                    referred to in subsection (3)(d) may be taken against a
26                    person; and
27               (b) the Court is satisfied that it is necessary or desirable to
28                    make the order or orders for the purpose of preserving
29                    money or other property held by, or on behalf of, the
30                    person if the person is liable or may become liable under
31                    this Act --
32                      (i) to pay moneys by way of a fine, damages,
33                             compensation, refund or otherwise; or


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1                    (ii) to transfer, sell or return other property;
2                  and
3            (c)   the Court is satisfied that the making of the order or
4                  orders will not unduly prejudice the rights and interests
5                  of any other person.
6    (3)   For the purposes of subsection (2)(a), the kinds of proceedings
7          taken against the person are as follows --
8            (a) proceedings in the Supreme Court or the District Court
9                  against the person for an offence against this Act;
10           (b) an application under section 99 or 100 for an injunction
11                 against the person in relation to a contravention of a
12                 provision of this Act;
13           (c) an action under the Australian Consumer Law (WA)
14                 section 236(1) against the person in relation to a
15                 contravention of a provision of this Act;
16           (d) an application for an order under section 105 against a
17                 person in relation to a contravention of a provision of
18                 this Act.
19   (4)   The Court may make the following orders under subsection (2)
20         in relation to money or other property held by, or on behalf of, a
21         person (the respondent) --
22           (a) an order prohibiting, either absolutely or subject to
23                  conditions, a person who is indebted to the respondent,
24                  or to an associate of the respondent, from making a
25                  payment, in total or partial discharge of the debt --
26                    (i) to the respondent; or
27                   (ii) to another person at the direction or request of
28                          the respondent;




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1                (b)   an order prohibiting, either absolutely or subject to
2                      conditions, a person who is holding money or other
3                      property on behalf of the respondent, or on behalf of an
4                      associate of the respondent --
5                         (i) from paying all or any of the money to the
6                               respondent, or to another person at the direction
7                               or request of the respondent; or
8                        (ii) from transferring the other property to the
9                               respondent, or to another person at the direction
10                              or request of the respondent, or otherwise parting
11                              with possession of that property;
12               (c)   an order prohibiting, either absolutely or subject to
13                     conditions, the taking or sending by any person of
14                     money of the respondent, or of an associate of the
15                     respondent, to a place outside the State;
16               (d)   an order prohibiting, either absolutely or subject to
17                     conditions, the taking, sending or transfer by any person
18                     of other property of the respondent, or of an associate of
19                     the respondent, to a place outside the State;
20               (e)   if the respondent is a natural person, an order appointing
21                     a receiver or trustee of the property, or of part of the
22                     property, of the respondent with such powers as are
23                     specified in the order.
24      (5)    If the Court makes an order under this section, the order
25             operates --
26                (a) for a period specified in the order (which must not be
27                     longer than 30 days if the application for the order was
28                     made in the absence of the person against whom the
29                     order is sought); or
30               (b) if proceedings in relation to which the order is made are
31                     concluded before the end of that period, until the
32                     conclusion of those proceedings.




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1       (6)   This section --
2              (a) has effect subject to the Bankruptcy Act 1966
3                    (Commonwealth); and
4              (b) does not affect any other powers of the Supreme Court
5                    or the District Court.

6    107.     Offence to contravene order under section 106
7             A person commits an offence who contravenes or fails to
8             comply with an order by the Supreme Court or the District
9             Court under section 106 that is applicable to the person.
10            Penalty:
11                (a) in the case of a body corporate, a fine of $1 100 000;
12                (b) in the case of a person other than a body corporate, a
13                      fine of $220 000.

14   108.     Finding in certain proceedings to be evidence
15      (1)   In an action against a person under the Australian Consumer
16            Law (WA) section 236(1) --
17              (a) a finding of a fact by a court to which subsection (3)
18                    applies is prima facie evidence of that fact; and
19              (b) the finding may be proved by production of a document
20                    under the seal of the court from which the finding
21                    appears.
22      (2)   In proceedings for an order against a person under
23            section 105(3) or the Australian Consumer Law (WA)
24            section 237(1), 238(1) or 239(1) --
25              (a) a finding of a fact by a court to which subsection (3)
26                    applies is prima facie evidence of that fact; and
27              (b) the finding may be proved by production of a document
28                    under the seal of the court from which the finding
29                    appears.




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1       (3)    This subsection applies to a finding of fact by a court that is
2              made in proceedings under section 99 or 100, or the Australian
3              Consumer Law (WA) section 228, 232, 246, 247 or 248, or for
4              an offence against this Act, in which the person has been found
5              to have contravened, or to have been involved in a
6              contravention of, a provision of the Australian Consumer Law
7              (WA) Chapter 2, 3 or 4.

8           Division 4 -- Further provisions relating to proceedings
9    109.      References to state of mind
10             A reference in sections 110 and 111 to the state of mind of a
11             person includes a reference to --
12               (a) the knowledge, intention, opinion, belief or purpose of
13                     the person; and
14               (b) the person's reasons for that intention, opinion, belief or
15                     purpose.

16   110.      Conduct and state of mind of directors, employees or agents
17             of bodies corporate
18      (1)    Where, in a proceeding under this Part or the Australian
19             Consumer Law (WA) in respect of conduct that is engaged in by
20             a body corporate and to which this Part or the Australian
21             Consumer Law (WA) applies, it is necessary to establish the
22             state of mind of the body corporate, it is sufficient to show --
23               (a) that a director, employee or agent of the body corporate
24                      engaged in that conduct within the scope of the person's
25                      actual or apparent authority; and
26               (b) that the director, employee or agent had that state of
27                      mind.




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1       (2)   Conduct of the kind set out in paragraph (a) or (b) that is
2             engaged in on behalf of a body corporate is to be treated, for the
3             purposes of this Act, as having been engaged in by the body
4             corporate as well --
5               (a) conduct by a director, employee or agent of the body
6                    corporate within the scope of the person's actual or
7                    apparent authority; or
8               (b) conduct by any other person at the direction or with the
9                    consent or agreement (whether express or implied) of a
10                   director, employee or agent of the body corporate, if the
11                   giving of the direction, consent or agreement is within
12                   the scope of the actual or apparent authority of the
13                   director, employee or agent.

14   111.     Conduct of employees or agents of persons other than bodies
15            corporate
16      (1)   Where, in a proceeding under this Part or the Australian
17            Consumer Law (WA) in respect of conduct that is engaged in by
18            a person (the principal) other than a body corporate and to
19            which this Part or the Australian Consumer Law (WA) applies, it
20            is necessary to establish the state of mind of the principal, it is
21            sufficient to show --
22              (a) that an employee or agent of the principal engaged in
23                    that conduct within the scope of the person's actual or
24                    apparent authority; and
25              (b) that the employee or agent had that state of mind.
26      (2)   Conduct of the kind set out in paragraph (a) or (b) that is
27            engaged in on behalf of a person (the principal) other than a
28            body corporate is to be treated, for the purposes of this Act, as
29            having been engaged in by the principal as well --
30              (a) conduct by an employee or agent of the principal within
31                   the scope of the person's actual or apparent authority; or




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1               (b)   conduct by any other person, at the direction or with the
2                     consent or agreement (whether express or implied) of an
3                     employee or agent of the principal, if the giving of the
4                     direction, consent or agreement is within the scope of
5                     the actual or apparent authority of the employee or
6                     agent.




    page 82
                                                           Fair Trading Bill 2010
                                                   Miscellaneous           Part 8

                                                                           s. 112



1                         Part 8 -- Miscellaneous
2    112.     Confidentiality of information officially obtained
3       (1)   In this section --
4             personal information means information concerning the affairs
5             of a person.
6       (2)   A person must not, either directly or indirectly, make a record
7             of, or divulge or communicate to any other person, any personal
8             information obtained by him or her by reason of his or her
9             office, position, employment or engagement under or for the
10            purposes of this Act.
11            Penalty: a fine of $20 000.
12      (3)   Subsection (2) does not prohibit the recording, divulging or
13            communicating of any personal information --
14              (a) with the consent of the person to whom the information
15                   relates, or each of them if there is more than one; or
16              (b) in a manner that could not reasonably be expected to
17                   lead to the identification of any person to whom the
18                   information relates; or
19              (c) for the purposes of performing a function under or in
20                   connection with this Act; or
21              (d) for the purposes of legal proceedings arising out of the
22                   administration of this Act or another written law; or
23              (e) for the purpose of the investigation of any suspected
24                   offence or the conduct of proceedings against any
25                   person for any offence.
26      (4)   Nothing in this section affects the operation of the
27            Parliamentary Privileges Act 1891.




                                                                         page 83
     Fair Trading Bill 2010
     Part 8            Miscellaneous

     s. 113



1    113.      Commissioner can use or disclose information for any
2              purpose connected with legislation administered by
3              Department
4       (1)    This section applies to information that is obtained by a person
5              by reason of his or her office, position, employment or
6              engagement under or for the purposes of this Act.
7       (2)    Without limiting section 112(3), the fact that information to
8              which this section applies is obtained in connection with the
9              performance of a particular function under this Act does not
10             prevent that information from being used or disclosed in
11             connection with the performance of --
12               (a) any other function under this Act; or
13               (b) any function under any other written law that is
14                    administered through the Department.

15   114.      Protection from liability for wrongdoing
16      (1)    In this section --
17               (a) a reference to the doing of anything includes a reference
18                      to an omission to do anything; and
19               (b) liability includes liability for defamation.
20      (2)    A person is not liable for anything that the person has done, in
21             good faith, in the course of the operations of the Department or
22             the administration of this Act.
23      (3)    The Crown is also relieved of any liability that it might
24             otherwise have had for another person having done anything as
25             described in subsection (2).
26      (4)    The protection given by this section applies even though the
27             thing done as described in subsection (2) may have been
28             capable of being done whether or not this Act had been enacted.
29      (5)    This section is subject to the Chattel Securities Act 1987
30             sections 24 and 25.



     page 84
                                                            Fair Trading Bill 2010
                                                    Miscellaneous           Part 8

                                                                            s. 115



1    115.     Protection from liability for publishing official statements
2       (1)   In this section --
3             liability includes liability for defamation.
4       (2)   This section applies to statements made or issued by a person in
5             the course of the operations of the Department or the
6             administration of this Act.
7       (3)   A person is not liable for publishing, in good faith --
8              (a) a statement to which this section applies; or
9              (b) a fair report or summary of a statement to which this
10                   section applies.
11      (4)   Nothing in this section limits section 114.

12   116.     Regulations
13      (1)   The Governor may make regulations prescribing all matters that
14            are required or permitted by this Act to be prescribed, or are
15            necessary or convenient to be prescribed for giving effect to the
16            purposes of this Act.
17      (2)   A regulation may create an offence punishable by a penalty of a
18            fine not exceeding $2 000.
19      (3)   Without limiting subsection (1), regulations made under that
20            subsection may --
21              (a) prescribe calling hours with respect to unsolicited
22                   consumer agreements under the Australian Consumer
23                   Law (WA) section 73;
24              (b) provide that the Australian Consumer Law (WA)
25                   Part 3-2 Division 2 (unsolicited consumer agreements)
26                   does not apply, or provisions of that Division that are
27                   specified in the regulations do not apply, to or in relation
28                   to agreements of a kind specified in the regulations.




                                                                          page 85
    Fair Trading Bill 2010
    Part 8            Miscellaneous

    s. 116



1      (4)    Regulations made under subsection (3)(a) may alter the
2             operation of the Australian Consumer Law (WA) sections 73(1)
3             and 170(1).
4      (5)    Regulations made under subsection (3)(b) may alter the
5             operation of the Australian Consumer Law (WA) Part 3-2
6             Division 2.




    page 86
                                                            Fair Trading Bill 2010
                                           Transitional provisions          Part 9

                                                                            s. 117



1                   Part 9 -- Transitional provisions
2    117.     Transitional regulations
3       (1)   If there is not sufficient provision in this Act for dealing with a
4             transitional matter, regulations under this Act may prescribe all
5             matters that are required or necessary or convenient to be
6             prescribed for dealing with the matter.
7       (2)   In subsection (1) --
8             transitional matter --
9               (a) means a matter that needs to be dealt with for the
10                    purpose of effecting the transition from the provisions of
11                    the Consumer Affairs Act 1971, Door to Door Trading
12                    Act 1987 and Fair Trading Act 1987 to the provisions of
13                    this Act; and
14              (b) includes a saving or application matter.
15      (3)   Regulations made under subsection (1) may provide that
16            specified provisions of a written law --
17              (a) do not apply to or in relation to any matter; or
18              (b) apply with specified modifications to or in relation to
19                    any matter.
20      (4)   If regulations under subsection (1) provide that a specified state
21            of affairs is taken to have existed, or not to have existed, on and
22            from a day that is earlier than the day on which the regulations
23            are published in the Gazette but not earlier than the day this
24            section comes into operation, the regulations have effect
25            according to their terms.
26      (5)   In subsections (3) and (4) --
27            specified means specified or described in the regulations.




                                                                          page 87
     Fair Trading Bill 2010
     Part 9            Transitional provisions

     s. 118



1       (6)    If regulations contain a provision referred to in subsection (4),
2              the provision does not operate so as --
3                 (a) to affect, in a manner prejudicial to any person (other
4                      than the State), the rights of that person existing before
5                      the day of publication of those regulations; or
6                (b) to impose liabilities on any person (other than the State
7                      or an authority of the State) in respect of anything done
8                      or omitted to be done before the day of publication of
9                      those regulations.
10      (7)    Regulations made under subsection (1) in relation to a matter
11             referred to in subsection (3) must be made within such period as
12             is reasonably and practicably necessary to deal with a
13             transitional matter that arises as a result of the enactment of this
14             Act.

15   118.      Saving - Fair Trading (Product Information Standard)
16             Regulations 2005 Part 4 (builders plates for recreational
17             vessels)
18      (1)    The Fair Trading (Product Information Standard)
19             Regulations 2005 (other than Parts 2 and 3) continue in force
20             after the commencement of this section as if those regulations
21             were an information standard under the Australian Consumer
22             Law (WA) Part 3-4, and may be enforced accordingly.
23      (2)    The regulations continued in force by subsection (1) may be
24             repealed as if they were regulations made under section 116.

25   119.      Transitional provision: recall of defective goods
26             If an order under the Fair Trading Act 1987 section 54(2) has
27             effect immediately before the commencement of Part 10, that
28             order continues to have effect on and after that commencement
29             as if it were a recall notice issued under the Australian
30             Consumer Law (WA) section 122(1).




     page 88
                                                           Fair Trading Bill 2010
                                          Transitional provisions          Part 9

                                                                          s. 120



1    120.     Transitional provision: delegations
2       (1)   If a delegation under the Consumer Affairs Act 1971 section 23
3             has effect immediately before the commencement of Part 10,
4             that delegation continues to have effect on and after that
5             commencement as if it had taken place under section 60.
6       (2)   This section does not limit the Interpretation Act 1984 Part V.

7    121.     Application of Interpretation Act 1984 to expiring Acts
8             To avoid doubt, the provisions of the Interpretation Act 1984
9             (for example, sections 16(1), 36 and 38) about the repeal of
10            written laws and the substitution of other written laws for those
11            so repealed apply to the Consumer Affairs Act 1971, Door to
12            Door Trading Act 1987 and Fair Trading Act 1987 as if, on the
13            commencement of Part 10, those Acts were repealed and
14            re-enacted by this Act.




                                                                        page 89
     Fair Trading Bill 2010
     Part 10           Amendments
     Division 1        Consumer Affairs Act 1971 amended
     s. 122



1                          Part 10 -- Amendments
2              Division 1 -- Consumer Affairs Act 1971 amended
3    122.      Act amended
4              This Division amends the Consumer Affairs Act 1971.

5    123.      Sections 2A to 2D inserted
6              After section 2 insert:
7


8           2A.      Application of Act limited
9              (1)   This Act does not apply on or after the date on which
10                   the Fair Trading Act 2010 Part 10 comes into force.
11             (2)   This section is subject to sections 2C and 2D.

12          2B.      Expiry of Act
13             (1)   This Act expires on a day fixed by proclamation.
14             (2)   A proclamation cannot be made under subsection (1)
15                   unless the Commissioner has given the Minister a
16                   certificate signed by the Commissioner stating that the
17                   operation of this Act is no longer necessary.
18             (3)   In subsection (2) --
19                   Commissioner has the meaning given in the Fair
20                   Trading Act 2010 section 6.

21          2C.      Act continues to apply for certain purposes
22             (1)   In this section --
23                   commencement day means the day on which the Fair
24                   Trading Act 2010 Part 10 comes into force.




     page 90
                                                          Fair Trading Bill 2010
                                                   Amendments           Part 10
                         Door to Door Trading Act 1987 amended       Division 2
                                                                          s. 124



1             (2)   This Act continues to apply on and after the
2                   commencement day only for the following purposes --
3                     (a) the investigation and prosecution of offences
4                          against this Act committed before the
5                          commencement day;
6                     (b) the continuation, settlement or discontinuation
7                          of proceedings, under or in relation to this Act,
8                          that were commenced, but not concluded,
9                          before the commencement day.

10          2D.     Acts or omissions that occurred before the
11                  commencement day
12            (1)   This Act continues to apply on and after the
13                  commencement day (as defined in section 2C(1)) in
14                  relation to acts or omissions that occurred before the
15                  commencement day.
16            (2)   Without limiting subsection (1), action may be taken
17                  under this Act in relation to those acts or omissions.
18


19          Division 2 -- Door to Door Trading Act 1987 amended
20   124.     Act amended
21            This Division amends the Door to Door Trading Act 1987.

22   125.     Sections 3A to 3D inserted
23            After section 2 insert:
24


25          3A.     Application of Act limited
26            (1)   This Act does not apply on or after the date on which
27                  the Fair Trading Act 2010 Part 10 comes into force.
28            (2)   This section is subject to sections 3C and 3D.


                                                                        page 91
     Fair Trading Bill 2010
     Part 10           Amendments
     Division 2        Door to Door Trading Act 1987 amended
     s. 125



1          3B.       Expiry of Act
2              (1)   This Act expires on a day fixed by proclamation.
3              (2)   A proclamation cannot be made under subsection (1)
4                    unless the Commissioner has given the Minister a
5                    certificate signed by the Commissioner stating that the
6                    operation of this Act is no longer necessary.
7              (3)   In subsection (2) --
8                    Commissioner has the meaning given in the Fair
9                    Trading Act 2010 section 6.

10         3C.       Act continues to apply for certain purposes
11             (1)   In this section --
12                   commencement day means the day on which the Fair
13                   Trading Act 2010 Part 10 comes into force.
14             (2)   This Act continues to apply on and after the
15                   commencement day to contracts made before the
16                   commencement day.
17             (3)   This Act continues to apply on and after the
18                   commencement day only for the following purposes --
19                     (a) the investigation and prosecution of offences
20                          against this Act committed before the
21                          commencement day;
22                     (b) the giving, withdrawal or payment of
23                          infringement notices in respect of offences
24                          against this Act committed before the
25                          commencement day;
26                     (c) the continuation, settlement or discontinuation
27                          of proceedings, under or in relation to this Act,
28                          that were commenced, but not concluded,
29                          before the commencement day.
30             (4)   To avoid doubt, the Door to Door Trading
31                   Regulations 1987 continue in force on and after the

     page 92
                                                            Fair Trading Bill 2010
                                                     Amendments           Part 10
                                   Fair Trading Act 1987 amended       Division 3
                                                                            s. 126



1                    commencement day for the purposes of subsection (3)
2                    and section 3D and for no other purpose.

3           3D.      Acts or omissions that occurred before the
4                    commencement day
5             (1)    This Act continues to apply on and after the
6                    commencement day (as defined in section 3C(1)) in
7                    relation to acts or omissions that occurred before the
8                    commencement day.
9             (2)    Without limiting subsection (1), action may be taken
10                   under this Act in relation to those acts or omissions.
11


12                Division 3 -- Fair Trading Act 1987 amended
13   126.     Act amended
14            This Division amends the Fair Trading Act 1987.

15   127.     Sections 3A to 3D inserted
16            After section 2 insert:
17


18          3A.      Application of Act limited
19            (1)    This Act does not apply on or after the date on which
20                   the Fair Trading Act 2010 Part 10 comes into force.
21            (2)    This section is subject to sections 3C and 3D.

22          3B.      Expiry of Act
23            (1)    This Act expires on a day fixed by proclamation.
24            (2)    A proclamation cannot be made under subsection (1)
25                   unless the Commissioner has given the Minister a
26                   certificate signed by the Commissioner stating that the
27                   operation of this Act is no longer necessary.


                                                                          page 93
     Fair Trading Bill 2010
     Part 10           Amendments
     Division 3        Fair Trading Act 1987 amended
     s. 127



1              (3)   In subsection (2) --
2                    Commissioner has the meaning given in the Fair
3                    Trading Act 2010 section 6.

4          3C.       Act continues to apply for certain purposes
5              (1)   In this section --
6                    commencement day means the day on which the Fair
7                    Trading Act 2010 Part 10 comes into force.
8              (2)   This Act continues to apply on and after the
9                    commencement day only for the following purposes --
10                     (a) the investigation and prosecution of offences
11                          against this Act committed before the
12                          commencement day;
13                     (b) the giving, withdrawal or payment of
14                          infringement notices under section 73 in respect
15                          of offences against this Act committed before
16                          the commencement day;
17                     (c) the continuation, settlement or discontinuation
18                          of proceedings, under or in relation to this Act,
19                          that were commenced, but not concluded,
20                          before the commencement day.
21             (3)   To avoid doubt, the Fair Trading (Infringement
22                   Notices) Regulations 2006 continue in force on and
23                   after the commencement day for the purposes of
24                   subsection (3) and section 3D and for no other purpose.
25             (4)   Subsection (2)(c) is subject to the Fair Trading
26                   Act 2010 section 37.

27         3D.       Acts or omissions that occurred before the
28                   commencement day
29             (1)   This Act continues to apply on and after the
30                   commencement day (as defined in section 3C(1)) in



     page 94
                                                 Fair Trading Bill 2010
                                          Amendments           Part 10
                        Fair Trading Act 1987 amended       Division 3
                                                                 s. 127



1         relation to acts or omissions that occurred before the
2         commencement day.
3   (2)   Without limiting subsection (1), action may be taken
4         under this Act in relation to those acts or omissions.
5




                                                               page 95
     Fair Trading Bill 2010
     Schedule 1        Acts that override this Act

     s.



1                 Schedule 1 -- Acts that override this Act
2                                                                            [s. 15]
3    The following enactments are specified for the purpose of section 15(1)(a) --
4    Agricultural Products Act 1929
5    Agriculture and Related Resources Protection Act 1976
6    Dangerous Goods Safety Act 2004
7    Fertilizers Act 1977
8    Firearms Act 1973
9    Health Act 1911
10   Mines Safety and Inspection Act 1994
11   Motor Vehicle Dealers Act 1973
12   Occupational Safety and Health Act 1984
13   Plant Diseases Act 1914
14   Poisons Act 1964
15   Radiation Safety Act 1975
16   Road Traffic Act 1974
17   Seeds Act 1981
18   Spear-guns Control Act 1955
19   Trade Measurement Act 2006
20   Veterinary Chemical Control and Animal Feeding Stuffs Act 1976.




21




     page 96
                                                                                     Fair Trading Bill 2010



                                                                                                  Defined Terms



                                       Defined Terms
      [This is a list of terms defined and the provisions where they are defined.
                             The list is not part of the law.]
Defined Term                                                                                              Provision(s)
access information ......................................................................................... 76(1)
acquire ..................................................................................................................6
application law............................................................................................... 17(1)
assistant.......................................................................................................... 68(1)
Australian Consumer Law ............................................................................. 17(1)
Australian Consumer Law (WA) ............................................................... 6, 17(1)
Australian Consumer Law text ...................................................................... 17(1)
authorised person ................................................................................................64
business.................................................................................................................6
code of practice...................................................................................................44
Commissioner .......................................................................................................6
consumer...................................................................................................... 6, 7(1)
consumer affairs authority ............................................................................. 63(1)
Department ...........................................................................................................6
disposal .................................................................................................................6
document ..............................................................................................................6
executive officer ............................................................................................ 56(1)
first person ................................................................................................... 107(1)
goods.....................................................................................................................6
instrument ...................................................................................................... 17(1)
interest ..................................................................................................................6
Intergovernmental Agreement ....................................................................... 17(1)
investigator ........................................................................................................64
jurisdiction ..................................................................................................... 17(1)
law ................................................................................................................. 17(1)
liability.............................................................................................115(1), 116(1)
modifications ................................................................................................. 17(1)
motor vehicle ......................................................................................................64
other jurisdiction.................................................................................................27
participating jurisdiction.......................................................................... 17(1), 27
person A.............................................................................................96(4), 100(2)
person B......................................................................................................... 96(4)
personal information.................................................................................... 113(1)
principal.................................................................................................112(1), (2)
provision ...............................................................................................................6
publish ........................................................................................................... 63(1)
regulator..............................................................................................................22
renewal day.................................................................................................... 39(2)
respondent.................................................................................................... 107(4)


                                                                                                              page 97
Fair Trading Bill 2010



Defined Terms



      re-supply ...............................................................................................................6
      services ........................................................................................................ 6, 8(1)
      specified....................................................................................................... 118(5)
      specified person ............................................................................................. 76(1)
      State ............................................................................................................... 17(1)
      supplier .................................................................................................................6
      supply ...................................................................................................................6
      Territory......................................................................................................... 17(1)
      this jurisdiction .............................................................................................. 17(1)
      trade or commerce ................................................................................................6
      transitional matter ........................................................................................ 118(2)
      variation day .................................................................................................. 39(2)




 


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