Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Acts13. After Part IIIA of the Principal Act the following Part is inserted:
“15FKA. (1) Where a person supplies goods and—
(a) it appears to the Minister that the goods are of a kind which will or may cause injury to any person;
(b) the goods are of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard; or
(c) the goods are of a kind in relation to which there is in force a notice under section 15FB, 15FC or 15FD;
and it appears to the Minister that the supplier has not taken satisfactory action to prevent the goods causing injury to any person, the Minister may, by notice in writing published in the Gazette , require the supplier to take action within the period specified in the notice to—
(d) recall the goods in the manner specified in the notice;
(e) disclose to the public, or to a class of persons specified in the order in the manner so specified one or more of the following:
(i) the nature of any defect in the goods identified in the order;
(ii) the circumstances in which the use of the goods is dangerous;
(iii) procedures for disposing of the goods; or
(f) notify the public, or a class of persons specified in the notice, in the manner and within the period so specified, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:
(i) except where the order identifies a dangerous characteristic of the goods—repair the goods;
(ii) replace the goods;
(iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods;
within the period specified in the order.
“(2) If an order so provides, where—
(a) the supplier undertakes to refund the price of the goods; and
(b) a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier;
the amount of the refund may be reduced by an amount, specified in the order, which represents the use which that person has had of the goods.
“(3) If a supplier undertakes to repair goods, the supplier shall cause the goods to be repaired so that—
(a) any defect in the goods identified in the order is remedied; and
(b) if there is a consumer product safety standard for goods of that kind—the goods comply with the standard.
“(4) If a supplier undertakes to replace goods, the supplier shall replace the goods with like goods which—
(a) if a defect in the goods to be replaced was identified in the order—do not contain that defect; and
(b) if there is a consumer product safety standard for goods of that kind—comply with that standard.
“(5) If a supplier undertakes to repair goods or replace goods, the cost of the repair or replacement, including any necessary transport costs, shall be borne by the supplier.
“(6) While an order under subsection (1) is in force, a supplier of goods to which the order relates shall not—
(a) fail to comply with a requirement of, or a direction in, the order;
(b) where the order identifies a defect in the goods—supply goods of the kind to which the order relates and which contain that defect;
(c) in a case other than a case referred to in paragraph (b)—supply goods of the kind to which the order relates;
(d) fail to carry out an undertaking notified by the supplier under subsection (1); or
(e) having given such an undertaking to repair or replace goods—fail to comply with subsection (3), (4) or (5), where applicable.
Penalty:
(a) if the offender is a natural person—$20,000;
(b) if the offender is a body corporate—$100,000.
“(7) Where goods are recalled, whether voluntarily or in accordance with an order under subsection (1), a person who has supplied any of the recalled goods to another person outside the Territory shall, as soon as practicable after the supply of those goods, give notice in writing to that other person—
(a) stating that the goods are subject to recall;
(b) if the goods have a defect—stating the nature of the defect; and
(c) if the goods do not comply with a consumer product safety standard for the goods—setting out the nature of the non-compliance.
Penalty:
(a) if the offender is a natural person—$2,000;
(b) if the offender is a body corporate—$10,000.
“(8) A supplier who voluntarily takes action to recall goods shall, not later than 2 days after that action is taken, give to the Director notice in writing—
(a) stating that the goods are subject to recall;
(b) if the goods have a defect—stating the nature of the defect; and
(c) if the goods do not comply with a consumer product safety standard for the goods—setting out the nature of the non-compliance.
Penalty:
(a) if the offender is a natural person—$2,000;
(b) if the offender is a body corporate—$10,000.
“(9) It is a sufficient compliance with subsection (8) if a copy of the notice relating to the goods is given under section 65R of the Trade Practices Act 1974 of the Commonwealth to the Director.
“15FKB. (1) If the Minister—
(a) makes in conjunction with a consumer product safety order under section 15FC any order under section 15FKA relating to goods the subject of the consumer product safety order; or
(b) has under consideration a draft of any order under section 15FKA that is not proposed to be made in conjunction with a consumer product safety order under section 15FC;
the Minister shall cause to be published in the Gazette a notice that complies with subsection (2) in relation to the order or draft order.
“(2) A notice relating to an order or draft order complies with this subsection if it specifies—
(a) that a supplier of the goods to which the order or draft order relates may, before a day specified in the notice (being a day that is not earlier than 10 days after publication of the notice) lodge with the Product Safety Advisory Committee a request for a conference with that committee; and
(b) in the case of a draft order—the terms of the draft order and a summary of the reasons why it is under consideration.
“(3) Where the Minister causes to be published in the Gazette a notice under subsection (1), the Director shall, within 2 days after its publication or, if it is not practicable to do so within that period, as soon as practicable after the end of that period, either—
(a) cause a copy of the notice to be given to each person who, to the knowledge of the Director, supplies goods to which the notice relates; or
(b) cause a copy of the notice to be published in a daily newspaper published and circulating in the Territory.
“(4) Any failure to comply with subsection (3) in relation to a notice does not invalidate the notice.
“(5) The Product Safety Advisory Committee may allow further time for the lodging of a request for a conference and shall—
(a) where no request for a conference has been lodged inform the Minister accordingly; or
(b) where a request for a conference has been lodged—notify the Minister and each supplier who has duly requested the conference, of the time and place for the holding of the conference, being a time not later than 14 days after the expiration of the time for lodging a request for the conference.
“(6) If a conference is held—
(a) the Product Safety Advisory Committee shall be represented by a member nominated by the Chairperson;
(b) each supplier who has requested the conference, and any other person whose presence at the conference is considered by the Product Safety Advisory Committee to be appropriate, is entitled to be present or be represented; and
(c) the Minister or a person or persons nominated in writing by the Minister is or are entitled to be present.
“(7) A person in attendance at the conference may—
(a) inspect documents in the possession of the member representing the Product Safety Advisory Committee that relate to the goods to which the order or draft order relates (not being documents specifying a secret formula or process); and
(b) be heard by, and make submissions to, the member representing the Product Safety Advisory Committee with respect to the order or draft order.
“(8) The member representing the Product Safety Advisory Committee shall keep a record of proceedings at a conference under this section.
“(9) After a conference is held, the Product Safety Advisory Committee shall—
(a) where the conference related to a draft order—make a written recommendation to the Minister as to whether the Minister should—
(i) publish an order in terms of the draft order;
(ii) publish an order in terms of the draft order with amendments; or
(iii) refrain from publishing an order affecting the goods to which the draft order relates; or
(b) where the conference related to an order under section 15FKA—make a written recommendation to the Minister as to whether the order should remain in force, be varied or be revoked.
“(10) The Product Safety Advisory Committee shall cause a copy of a recommendation made under subsection (9) to be given to each supplier who was present or represented at the conference.
“(11) The Minister is not bound by a recommendation under subsection (9) but, if the Minister decides not to act in accordance with the recommendation, he or she shall publish in the Gazette the reasons for that decision.
“15FKC. (1) If a supplier fails to carry out an undertaking given under section 15FKA to refund the price of goods, the amount that should have been refunded is recoverable as a debt due by the supplier to the person to whom the undertaking was given.
“(2) If a supplier fails to carry out an undertaking under section 15FKA to repair or replace goods, the supplier is deemed to have given instead an undertaking, notified under section 15FKA, to refund the price of the goods within the period specified for the repair or replacement of the goods.
“(3) If—
(a) a person fails to comply with any requirement of an order made under section 15FKA or supplies goods in contravention of such an order disclosing a defect in, or dangerous characteristic of, the goods; and
(b) another person suffers loss or damage because of a defect in, or a dangerous characteristic of, the goods or by not having particular information as to a characteristic of the goods;
the person who suffered the loss or damage is deemed, for the purposes of this Act, to have suffered it because of the failure or contravention.
“15FKD. The liability of an insurer under a contract of insurance with a person, being a contract relating to the recall of goods supplied or proposed to be supplied by the person or to the liability of the person with respect to possible defects in goods supplied or proposed to be supplied by the person, shall not be affected only because the person gives to the Minister, to the Product Safety Advisory Committee or to an officer information relating to any goods supplied or proposed to be supplied by the person.”.