Australian Capital Territory Numbered Acts Australian Capital Territory Numbered ActsSchedule 1 Fair Trading Act 1992
(see s 3)
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An Act about fair trading and consumer protection, and for other purposes.
[1.2] Section 1
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1 Name of Act
This Act is the Fair Trading (Australian Consumer Law) Act 1992 .
[1.3] Section 2 , note 1
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Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references ("signpost definitions") to other terms defined elsewhere.
For example, the signpost definition ‘"consumer"—see the Australian Consumer Law (ACT) , section 2 (1).' means that the term ‘consumer' is defined in that law and the definition applies to this Act.
[1.4] New section 4
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4 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1), except the following offences:
• s 37 (4)
• s 43 (2)
• s 45 (6)
• s 52 (2).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg "conduct", "intention", recklessness and strict liability ).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
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Part 2 The Australian Consumer Law
Division 2.1 Definitions
5 Definitions—pt 2
(1) In this part:
"application law "means—
(a) a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.
"Australian Consumer Law "means (according to the context)—
(a) the Australian Consumer Law text; or
(b) the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications.
"Australian Consumer Law text "means the text described in section 6.
"instrument "means any document, including the following:
(a) an Act or an instrument made under an Act;
(b) a law of this jurisdiction or an instrument made under that law;
(c) an award or other industrial determination or order, or an industrial agreement;
(d) any other order (whether executive, judicial or otherwise);
(e) a notice, certificate or licence;
(f) an agreement;
(g) an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;
(h) an indictment, presentment, summons or writ;
(i) any other pleading in, or process issued in connection with, a legal or other proceeding.
"Intergovernmental Agreement "means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.
"jurisdiction "means a State or the Commonwealth.
"law", in relation to a Territory, means a law of, or in force in, that Territory.
"modifications "includes additions, omissions and substitutions.
"month "means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no corresponding day, ending at the expiration of the next month.
"participating jurisdiction "means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications.
"State "includes a Territory.
"Territory "means the Australian Capital Territory or the Northern Territory.
"this jurisdiction" means the Australian Capital Territory.
(2) Terms used in this part and also in the Australian Consumer Law (ACT) have the same meanings in this part as they have in that law.
(3) For this part—
(a) a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and
(b) that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2.2 Application of Australian Consumer Law
6 The Australian Consumer Law text
The Australian Consumer Law text consists of—
(a) the Competition and Consumer Act 2010 (Cwlth), schedule 2; and
(b) the regulations under that Act, section 139G.
Note The Australian Consumer Law text is accessible at www.comlaw.gov.au.
7 Application of Australian Consumer Law
(1) The Australian Consumer Law text, as in force from time to time—
(a) applies as a law of this jurisdiction; and
(b) as so applying may be referred to as the Australian Consumer Law (ACT) ; and
(c) as so applying is a part of this Act.
(2) This section has effect subject to section 8, section 9 and section 10.
8 Future modifications of Australian Consumer Law text
(1) A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 7, if the modification is declared by regulation under this Act to be excluded from the operation of that section.
Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.
(2) A regulation under subsection (1) has effect only if it is notified not later than 3 months after the date of the modification.
(3) Subsection (1) ceases to apply to the modification if a further regulation under this Act so provides.
(4) For this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 (Cwlth).
9 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction
In the Australian Consumer Law (ACT) :
"court" includes the ACAT.
"regulator" means the commissioner for fair trading.
10 Interpretation of Australian Consumer Law
(1) The Acts Interpretation Act 1901 (Cwlth) applies as a law of this jurisdiction to the Australian Consumer Law (ACT) .
(2) For subsection (1), the Commonwealth Act mentioned in that subsection applies as if—
(a) the statutory provisions in the Australian Consumer Law (ACT) were a Commonwealth Act; and
(b) the regulations in the Australian Consumer Law (ACT) or instruments under that law were regulations or instruments under a Commonwealth Act.
(3) The Legislation Act does not apply to—
(a) the Australian Consumer Law (ACT) ; or
(b) any instrument under that law.
11 Application of Australian Consumer Law
(1) The Australian Consumer Law (ACT) applies to and in relation to—
(a) people carrying on business within this jurisdiction; or
(b) bodies corporate incorporated or registered under the law of this jurisdiction; or
(c) people ordinarily resident in this jurisdiction; or
(d) people otherwise connected with this jurisdiction.
(2) Subject to subsection (1), the Australian Consumer Law (ACT) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).
Division 2.3 References to Australian Consumer Law
12 References to Australian Consumer Law
(1) A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
13 References to Australian Consumer Law of other jurisdictions
(1) This section has effect for an Act, a law of this jurisdiction or an instrument under an Act or such a law.
(2) If a law of a participating jurisdiction other than this jurisdiction provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2.4 Application of Australian Consumer Law to jurisdictions
14 Division does not apply to Commonwealth
In this division, "participating jurisdiction" or other jurisdiction does not include the Commonwealth.
15 Application law of this jurisdiction
The application law of this jurisdiction binds (so far as the legislative power of the Legislative Assembly allows) each participating jurisdiction, so far as the jurisdiction carries on a business, either directly or by an authority of the jurisdiction concerned.
16 Application law of other jurisdictions
(1) The application law of each participating jurisdiction other than this jurisdiction binds this jurisdiction, so far as this jurisdiction carries on a business, either directly or by an authority of this jurisdiction.
(2) If, because of this part, a provision of the law of another participating jurisdiction binds this jurisdiction, this jurisdiction is subject to that provision despite any prerogative right or privilege.
17 Activities that are not business
(1) For section 15 and section 16, the following do not amount to carrying on a business:
(a) imposing or collecting—
(i) taxes; or
(ii) levies; or
(iii) fees for authorisations;
(b) granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);
(c) a transaction involving—
(i) only people who are all acting for the same jurisdiction (and none of whom is an authority of a State); or
(ii) only people who are all acting for the same authority of a State; or
(iii) only a State and 1 or more non-commercial authorities of that State; or
(iv) only non-commercial authorities of the same State;
(d) the acquisition of primary products by a government body under legislation, unless the acquisition occurs because—
(i) the body chooses to acquire the products; or
(ii) the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.
(2) Subsection (1) does not limit the things that do not amount to carrying on a business for section 15 and section 16.
(3) In this section:
acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.
"authorisation "means a licence, permit, certificate or other authorisation that allows the holder of the authorisation to supply goods or services.
"government body "means a State or an authority of a State.
"primary products" means—
(a) agricultural or horticultural produce; or
(b) crops, whether on or attached to the land or not; or
(c) animals (whether dead or alive); or
(d) the bodily produce (including natural increase) of animals.
(4) For this section, an authority of a State is non-commercial if—
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial corporation.
18 Jurisdictions not liable to pecuniary penalty or prosecution
(1) Nothing in the application law of this jurisdiction makes any jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.
(2) Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.
Division 2.5 Miscellaneous
19 Conferral of functions and powers on certain bodies
(1) The authorities and officers of the Commonwealth mentioned in the Australian Consumer Law (ACT) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (ACT) .
(2) In addition to the powers mentioned in subsection (1), the authorities and officers mentioned in that subsection have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers mentioned in that subsection.
20 No doubling-up of liabilities
(1) If—
(a) an act or omission is an offence against the Australian Consumer Law (ACT) and is also an offence against an application law of another participating jurisdiction; and
(b) the offender has been punished for the offence under the application law of the other jurisdiction;
the offender is not liable to be punished for the offence against the Australian Consumer Law (ACT) .
(2) If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (ACT) in relation to the same conduct.
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shall
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must
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so
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(1) If the commissioner believes on reasonable grounds that a person in carrying on a business has not complied with an approved code, the commissioner may request the person to give within a stated time a written undertaking about 1 or more of the following:
(a) stopping the conduct;
(b) future compliance with the code;
(c) the action the person will take to rectify any consequence of the non-compliance.
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37 Enforcement of undertakings
(1) If a person fails to comply with a request by the commissioner to give an undertaking under section 36, the commissioner may apply to the Magistrates Court for an order under subsection (2).
(2) If the court is satisfied that there were grounds for requesting the undertaking, the court may make 1 or more of the following orders:
(a) an order directing the person to do something that would have been required to be done under the undertaking if the undertaking had been given;
(b) any other order that the court considers appropriate.
(3) If the commissioner considers that a person has breached an undertaking, the commissioner may apply to the Magistrates Court for an order under subsection (4).
(4) If the court is satisfied that the person has breached the undertaking, the court may make 1 or more of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) any other order that the court considers appropriate.
(5) A person commits an offence if the person fails to comply with an order under this section.
Maximum penalty: 50 penalty units.
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39 Register of undertakings
(1) The commissioner must keep a register of undertakings.
(2) The register may include any other information the commissioner considers appropriate.
(3) The register may be kept in any form, including electronically, that the commissioner decides.
(4) The commissioner may correct any mistake, error or omission in the register.
(5) The commissioner may change a detail included in the register to keep the register up-to-date.
(6) The register must be available for public inspection,
free of charge, during normal business hours on any business day.
[1.15] Sections 32 to 39 (as amended)
renumber as sections 21 to 27
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Part 4 Advisory committees
28 Establishment of advisory committees
(1) The Minister may establish advisory committees to provide advice to the Minister or the commissioner about fair trading and consumer protection.
(2) An instrument establishing a committee is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
(3) An advisory committee must provide advice as required by the Minister or the commissioner and may provide advice on its own initiative.
(4) In exercising its functions, an advisory committee may consult with members of the public and with other entities interested in fair trading and consumer protection matters.
29 Advisory committee membership
An advisory committee is made up of—
(a) the commissioner; and
(b) other members appointed by the Minister who the Minister considers have the experience or expertise in relation to fair trading and consumer protection matters to qualify the person to exercise the functions of a committee member.
30 Advisory committee—general procedure
(1) Meetings of an advisory committee are to be held when and where it decides.
(2) An advisory committee may conduct its proceedings (including its meetings) as it considers appropriate.
31 Reimbursement of expenses for advisory committee members
(1) A member of an advisory committee is not entitled to be paid for the exercise of the member's functions.
(2) However, a member may apply to the commissioner for reimbursement of expenses reasonably incurred by the member for the purpose of attending a meeting of a committee.
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[1.18] Section 51C, new definition of code
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"code" means the National Credit Code.
[1.19] Sections 51C to 51E (as amended)
renumber as sections 62 to 64
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Part 7 Miscellaneous
65 Certificate evidence
(1) A certificate that appears to be signed by the commissioner, and states any of the following matters, is evidence of the matter:
(a) that a stated investigation made, or being made, by the commissioner or another stated person was made, or is being made, under part 5;
(b) that on a stated date, or during a stated period, a stated person was an investigator.
(2) A court must accept a certificate under this section as proof of the matters stated in it if there is no evidence to the contrary.
66 Protection of officials from liability
(1) In this section:
"official" means—
(a) the commissioner; or
(b) a person who is exercising, or has exercised, a function under this Act; or
(c) a person who is, or has been, engaged in the administration of this Act.
(2) An official, or anyone engaging in conduct under the direction of an official, is not civilly liable for conduct engaged in honestly and without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a function under this Act.
(3) Any liability that would, apart from this section, attach to an official attaches instead to the Territory.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
67 Regulation-making power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.
(2) A regulation may create offences and fix maximum penalties of not more than 20 penalty units for the offences.
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Schedule 1 Australian consumer law transitional provisions
1.1 Definitions—sch 1
In this schedule:
"commencement day" means 1 January 2011.
"repealed Acts" means—
(a) the Door-to-Door Trading Act 1991 ; and
(b) the Fair Trading (Consumer Affairs) Act 1973 ; and
(c) the Lay-by Sales Agreements Act 1963.
1.2 Transitional—reference to a repealed Act
(1) In any Act, instrument made under an Act or a document, a reference to a repealed Act is, in relation to anything to which the Australian Consumer Law (ACT) applies, a reference to the Australian Consumer Law (ACT) .
(2) In any Act, instrument made under an Act or a document, a reference to a provision of a repealed Act is, in relation to anything to which the Australian Consumer Law (ACT) applies, a reference to the corresponding provision of the Australian Consumer Law (ACT) .
(3) In any Act, instrument made under an Act or a document, a reference to anything that is no longer applicable because of the repeal or amendment of a repealed Act by this Act and for which there is a corresponding thing under the Australian Consumer Law (ACT) , is taken to be a reference to the corresponding thing under the Australian Consumer Law (ACT) , if the context allows and if otherwise appropriate.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
1.3 Transitional—advisory committees
(1) Subsection (2) applies to an advisory committee established under the Fair Trading (Consumer Affairs) Act 1973 , section 3 in existence immediately before commencement day.
(2) The committee is taken to be an advisory committee established under this Act.
(3) Subsection (4) applies if, immediately before commencement day, a person is a member of an advisory committee under the Fair Trading (Consumer Affairs) Act 1973 , section 3.
(4) The person is taken to be a member of the relevant committee under this Act.
1.4 Transitional—regulations
(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the repeal of the repealed Acts.
(2) A regulation may modify this schedule (including in relation to another territory law) to make provision in relation to anything that, in the Executive's opinion, is not, or is not adequately or appropriately, dealt with in this schedule.
(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act.
1.5 Expiry—sch 1
(1) This schedule expires on 1 January 2014.
(2) This schedule is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.
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• ACT
• contravene
• liability
• month
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• ACAT
[1.24] Dictionary, definition of acquire
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[1.25] Dictionary, new definition of advisory committee
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"advisory committee" means a committee established under section 28.
[1.26] Dictionary, definition of annual percentage rate
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"annual percentage rate", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.27] Dictionary, new definition of application law
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"application law", for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.28] Dictionary, definition of arrive at
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[1.29] Dictionary, new definitions
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"Australian Consumer Law", for part 2 (The Australian Consumer Law)—see section 5 (1).
"Australian Consumer Law (ACT)" means the provisions applying in this jurisdiction because of section 7.
"Australian Consumer Law text", for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.30] Dictionary, definition of business
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"business"—see the Australian Consumer Law (ACT) , section 2 (1).
[1.31] Dictionary, new definition of business premises
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"business premises", for division 5.2 (Investigations)—see section 35.
[1.32] Dictionary, definition of code
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"code", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.33] Dictionary, definition of commissioner
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"commissioner" means the Commissioner for Fair Trading appointed under section 32.
[1.34] Dictionary, definition of conduct
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[1.35] Dictionary, new definition of connected
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"connected", for division 5.2 (Investigations)—see section 35.
[1.36] Dictionary, definitions of consumer and contract document
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"consumer"—see the Australian Consumer Law (ACT) , section 2 (1).
"contract document", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.37] Dictionary, new definition of court
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"court" includes any tribunal or person having authority under a law, or by consent of parties, to receive evidence.
[1.38] Dictionary, definition of covenant
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[1.39] Dictionary, definitions of credit , credit contract and credit fees and charges
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"credit", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
"credit contract", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
"credit fees and charges", for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.40] Dictionary, definitions of disposal and engaging
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[1.41] Dictionary, new definition of fair trading legislation
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"fair trading legislation" means—
(a) the Agents Act 2003 ; or
(b) the Australian Consumer Law (ACT) ; or
(c) the Eggs (Labelling and Sale) Act 2001 ; or
(d) the Fair Trading (Australian Consumer Law) Act 1992 ; or
(e) the Liquor Act 2010 ; or
(f) the Security Industry Act 2003 .
[1.42] Dictionary, definition of fair trading legislation , new paragraph (ea)
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(ea) the Plastic Shopping Bags Ban Act 2010 ; or
[1.43] Dictionary, definition of goods
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"goods"—see the Australian Consumer Law (ACT) , section 2 (1).
[1.44] Dictionary, new definitions
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"identity card" means an identity card issued to an investigator under section 37.
"instrument", for part 2 (The Australian Consumer Law)—see section 5 (1).
"Intergovernmental Agreement", for part 2 (The Australian Consumer Law)—see section 5 (1).
"investigation" means an investigation under part 5.
"investigator" means the commissioner or a person who is authorised by the commissioner under section 36.
[1.45] Dictionary, definition of involved
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[1.46] Dictionary, new definitions
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"jurisdiction", for part 2 (The Australian Consumer Law)—see section 5 (1).
"law", in relation to a Territory, for part 2 (The Australian Consumer Law)—see section 5 (1).
"modifications", for part 2 (The Australian Consumer Law)—see section 5 (1).
"month", for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.47] Dictionary, definition of new participant
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[1.48] Dictionary, new definitions of occupier and offence
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"occupier", of premises, for division 5.2 (Investigations)—see section 35.
"offence", for division 5.2 (Investigations)—see section 35.
[1.49] Dictionary, definition of offering
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[1.50] Dictionary, new definition of other jurisdiction
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"other jurisdiction", for division 2.4 (Application of Australian Consumer Law to jurisdictions)—see section 14.
[1.51] Dictionary, definitions of participant and participate
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[1.52] Dictionary, new definition of participating jurisdiction
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"participating jurisdiction"—
(a) for part 2 (The Australian Consumer Law)—see section 5 (1); and
(b) for division 2.4 (Application of Australian Consumer Law to jurisdictions)—see section 14.
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participation payment
payment
price
provision
published
pyramid selling scheme
recruitment payment
refusing
require
resupply
send
[1.54] Dictionary, definition of services
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"services"—see the Australian Consumer Law (ACT) , section 2 (1).
[1.55] Dictionary, definition of share
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[1.56] Dictionary, new definition of State
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"State", for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.57] Dictionary, definition of statement
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[1.58] Dictionary, new definition of supplier
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"supplier"—see the Australian Consumer Law (ACT) , section 2 (1).
[1.59] Dictionary, definition of supply
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"supply"—see the Australian Consumer Law (ACT) , section 2 (1).
[1.60] Dictionary, new definitions of Territory and this jurisdiction
insert
"Territory", for part 2 (The Australian Consumer Law)—see section 5 (1).
"this jurisdiction", for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.61] Dictionary, definitions of trade or commerce, unsolicited goods and unsolicited services
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