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TRADE PRACTICES REVISION BILL 1986

The Senate, according to Order, resolved itself into Committee for the further consideration of the Bill.

In the Committee

Consideration resumed of clause 22 and of the amendment moved thereto by Senator Vigor, viz: Page 11, proposed new section 52a, at end of proposed section, add the following new sub-section:

""(7) A reference in this section to the supply or possible supply of goods or services includes a reference to the purchase or possible purchase of goods or services.''.

Question-That the words proposed to be added be added-put and negatived.

Senator Durack moved an amendment, viz: Page 11, after proposed sub-section 52a (2), insert the following new sub-section:

""(2a) In determining whether a corporation has engaged in conduct that is, in all the circumstances, unconscionable, the Court shall have regard to the principle of the need for certainty in commercial transactions.''.

Debate ensued.

Question-That the words proposed to be inserted be inserted-put.

The Committee divided-

AYES, 29

Senators- Archer Baume, Michael Baume, Peter Bjelke-Petersen Boswell Brownhill Carrick, Sir John Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Hill Jessop Kilgariff Knowles Lewis MacGibbon Messner Newman Parer Puplick Reid Sheil (Teller) Short Teague Vanstone Watson Withers

NOES, 36

Senators- Aulich Black Bolkus Childs Chipp Coates Colston Cook Cooney Crowley Devlin Elstob Evans Foreman Gietzelt Giles Haines Jones McClelland McKiernan Macklin Maguire Mason Morris Ray Reynolds Richardson Robertson (Teller) Ryan Sanders Sibraa Siddons Tate Vigor Walsh Zakharov

Amendment negatived accordingly.

Senator Vigor, by leave, moved the following amendments together:

Page 10, line 37, leave out ""section is'', insert ""sections are''.

Page 11, after proposed new section 52a, add the following new section:

Disclosure of interest

""52b. A corporation acting as an agent in trade or commerce shall disclose to the principal for whom the corporation is acting-

(a) if the corporation is itself a principal in respect of the same transaction-that fact;

(b) if the corporation is also acting for another principal in respect of the same transaction-

(i) that fact; and

(ii) the identity of the other principal or, if the other principal has requested that his or her identity not be disclosed, that fact; and

(c) if the corporation has any interest, direct or indirect, in the transaction, otherwise than in the capacity of agent for the first-mentioned principal-the nature of that interest.''.

Debate ensued.

Question-That the amendments be agreed to-put.

The Committee divided-

AYES, 7

Senators- Chipp Haines Macklin (Teller) Mason Sanders Siddons Vigor

NOES, 58

Senators- Archer Aulich Baume, Michael Baume, Peter Bjelke-Petersen Black Bolkus Boswell Brownhill Carrick, Sir John Childs Coates Collard Colston Cook Cooney Crichton-Browne Crowley Devlin Durack Elstob Evans Foreman Gietzelt Giles Guilfoyle, Dame Margaret Hamer Hill Jessop Jones Kilgariff Knowles Lewis MacGibbon McIntosh McKiernan Maguire Messner Morris Newman Parer Puplick Ray Reid Reynolds Richardson Robertson (Teller) Ryan Sheil Short Sibraa Tate Teague Vanstone Walsh Watson Withers Zakharov

Amendments negatived accordingly.

Clause 22 agreed to.

Consideration resumed of postponed clause 17 and of the amendment moved thereto by Senator Short, viz: Page 7, paragraph (b), after proposed sub-section 46 (7), add the following new sub-section:

""(8) For the purposes of sub-section (7), an inference may be drawn from the conduct of a corporation only in the absence of any other reasonable explanation for the conduct.''.

Question-That the words proposed to be added be added-put.

The Committee divided-

AYES, 28

Senators- Archer Baume, Michael Baume, Peter Bjelke-Petersen Boswell Brownhill Carrick, Sir John Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Hill Jessop Kilgariff Knowles Lewis MacGibbon Messner Newman Puplick Reid (Teller) Sheil Short Teague Vanstone Watson Withers

NOES, 33

Senators- Aulich Black Childs Chipp Coates Colston Cook Cooney Crowley Devlin Elstob Evans Foreman Gietzelt Giles Haines Jones McIntosh (Teller) McKiernan Macklin Maguire Mason Ray Reynolds Richardson Ryan Sanders Sibraa Siddons Tate Vigor Walsh Zakharov

Amendment negatived accordingly.

On the motion of the Minister for Resources and Energy (Senator Evans) the following amendment was agreed to: Page 7, paragraph (b), proposed sub-section 46 (7), line 21, after ""notwithstanding that,'' insert "", after all the evidence has been considered,''.

Clause 17, as amended, agreed to.

Clauses 23 to 34, by leave, taken together and agreed to.

Clause 35 read-

Senator Durack moved an amendment, viz: Page 16, proposed paragraph 65b (1) (a), lines 5 to 7, at end of paragraph, add ""together with a statement indicating why it is thought that the goods will or may cause such injury''.

Debate ensued.

Question-That the words proposed to be added be added-put and negatived.

Senator Durack, by leave, moved the following further amendments together:

Page 16, proposed paragraphs 65c (1) (b) and (c), lines 28 to 31, leave out the paragraphs, insert the following word and paragraph:

""or (b) in respect of which there is in force an order under sub-section (5) or (7).''.

Page 17, proposed sub-sections 65c (5), (6) and (7), lines 8 to 21, leave out the sub-sections, insert the following sub-sections:

""(5) Subject to section 65j, where, on the application of the Minister, the Court is satisfied that goods of a particular kind will or may cause injury to any person, the Court may make an order declaring that the goods are unsafe goods.

""(6) An order made under sub-section (5) remains in force until the end of 18 months after the date on which the order is made, or such shorter period as is specified in the order, unless the order is rescinded before the end of that period.

""(7) Subject to section 65j, where-

(a) a period of 18 months has elapsed after the date on which an order is made under sub-section (6), being an order in respect of which no shorter period of operation is specified; or

(b) the period specified in an order made under sub-section (6) which specifies a period of less than 18 months has elapsed; and

(c) there is not a prescribed consumer product safety standard in respect of the goods,

the Court may, on the application of the Minister,

(d) in a case to which paragraph (a) applies, make an order declaring that the goods are unsafe goods; or

(e) in a case to which paragraph (b) applies-

(i) if the Court is satisfied that the goods will or may cause injury to any person-make an order declaring that the goods are unsafe goods, and such order shall remain in force for a period of 1 year from the date on which the order is made; or

(ii) make a permanent order declaring that the goods are unsafe goods.''.

Page 17, proposed sub-section 65c (9), lines 33 to 41, leave out the sub-section, insert the following sub-sections:

""(9) Where-

(a) the supplying of goods by a corporation constitutes a contravention of this section by reason that there is in force an order under this section declaring the goods to be unsafe goods; and

(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by reason of a contravention of a provision of Part V.

""(10) An order under sub-section (5) may be varied or rescinded by the Court at any time.''.

Pages 19 and 20, proposed sub-sections 65f (1), (2) and (3), line 28 (page 19) to line 33 (page 20), leave out the sub-sections, insert the following sub-sections:

""(1) Subject to section 65j, where-

(a) a corporation (in this section referred to as the "supplier'), in trade or commerce, supplies on or after 1 July 1986 goods that are intended to be used, or are of a kind likely to be used, by a consumer;

(b) any one or more of the following conditions are met-

(i) the goods are goods of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard;

(ii) the goods are goods of a kind in relation to which there is in force an order under sub-section 65c (5) or (7); or

(iii) the Court is satisfied that the goods are goods of a kind which will or may cause injury to any person; and

(c) the Court is satisfied that the supplier has not taken satisfactory action to prevent the goods causing injury to any person,

the Court may, on the application of the Minister, make one or more of the following orders-

(d) an order requiring the supplier to take action within the period specified in the order to recall the goods;

(e) an order requiring the supplier to disclose to the public, or to a class of persons specified in the order, in the manner and within the period specified in the order, one or more of the following-

(i) the nature of a defect in, or a dangerous characteristic of, the goods identified in the order;

(ii) the circumstances, being circumstances identified in the order, in which the use of the goods is dangerous; or

(iii) procedures for disposing of the goods specified in the order; or

(f) an order requiring the supplier to inform the public, or a class of persons specified in the order, in the manner and within the period specified in the order, that the supplier undertakes to do whichever of the following the supplier thinks 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) Notwithstanding sub-paragraph (1) (f) (iii), where the Court, in an order made under sub-section (1), requires the supplier to take action under paragraph (1) (f), the Court may specify in the order that, where-

(a) the supplier chooses 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 a refund may be reduced by the supplier by an amount attributable to the use which a person has had of the goods, being an amount calculated in a manner specified in the order.

""(3) The Court may, where it makes an order under paragraph (1) (e) or (1) (f), give directions as to the manner in which the supplier is to carry out the recall of goods provided for in the order.''.

Page 20, proposed paragraph 65F (4) (a), line 36, leave out ""notice'', insert ""order''.

Page 21, proposed paragraph 65F (5) (a), line 2, leave out ""notice'', insert ""order''.

Page 21, proposed sub-section 65F (7), line 10, leave out ""a requirement made by the Minister'', insert ""an order made''.

Page 21, after proposed sub-section 65F (9), add the following new sub-section:

""(10) An order under sub-section (1) may be of limited duration or may be expressed to have effect for a period specified in the order and may be varied or rescinded by the Court at any time.''.

Page 21, proposed section 65G, lines 30 to 41, leave out the section, insert the following section:

""65G. Where an order under sub-section 65F (1) is in force in relation to a corporation, the corporation shall not in trade or commerce-

(a) where the order identifies a defect in, or a dangerous characteristic of, the goods-supply goods of the kind to which the order relates which contain that defect or have that characteristic; or

(b) in any other case-supply goods of the kind to which the order relates.''.

Page 22, proposed section 65H, lines 2 to 13, leave out the section, insert the following section:

""65H. Where-

(a) a corporation refuses or fails to comply with an order under sub-section 65F (1); or

(b) contravenes section 65G by supplying goods of a kind in relation to which an order under sub-section 65F (1) is in force; and

(c) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by reason of a contravention of a provision of Part V.''.

Page 22, proposed sub-sections 65J (1), (2) and (3), lines 15 to 35, leave out the sub-sections, insert the following sub-sections:

""(1) Subject to section 65L, before making application to the Court for an order under sub-section 65C (5) or (7) or 65F (1) in relation to goods of a particular kind, the Minister shall prepare-

(a) a draft of the order for which the Minister proposes to apply; and

(b) a summary of the reasons upon which the Minister intends to rely in support of the application,

and shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a "supplier') who has supplied or proposes to supply goods of that kind to notify the Commission, within the period (in this section referred to as the "relevant period') of 10 days commencing on the day specified in the notice, being not earlier than the day on which that notice is published in the Gazette, whether the supplier wishes the Commission to hold a conference in relation to the proposed application.

""(2) A notice of the kind referred to in sub-section (1) shall set out a copy of the draft order for which the Minister proposes to apply and a copy of the summary of reasons in support of the application.

""(3) If no supplier notifies the Commission in writing within the relevant period or within such longer period as the Commission allows that the supplier wishes the Commission to hold a conference in relation to the proposed application, the Commission shall notify the Minister accordingly.''.

Page 22, proposed sub-section 65J (4), line 39, leave out ""publication of a notice under sub-section 65C (5) or (7) or 65F (1)'', insert ""application''.

Page 23, proposed section 65K, lines 24 to 35, leave out the section, insert the following section:

""65K. As soon as practicable after the conclusion of a conference in relation to a proposed application under sub-section 65C (5) or (7) or 65F (1) the Commission shall-

(a) by notice in writing given to the Minister, recommend that-

(i) the Minister make the application for an order in the same terms as the draft order referred to in sub-section 65j (1);

(ii) the Minister make the application for the order with such modifications as are specified by the Commission; or

(iii) the Minister not make application for the order; and

(b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.''.

Pages 23 and 24, proposed section 65l, line 37 (page 23) to line 13 (page 24), leave out the section, insert the following section:

""65l. (1) Where it appears to the Minister that goods of a particular kind create an imminent risk of death, serious illness or serious injury, the Minister may, by notice in writing published in the Gazette, certify that fact.

""(2) Where the Minister publishes a notice in the Gazette under sub-section (1)-

(a) in a case where the notice is published before the Minister has taken any action under sub-section 65j (1) in relation to goods of a particular kind-section 65j does not apply in relation to the application that the Minister may make to the Court for an order under sub-section 65c (5) or 65f (1) in relation to goods of that kind; or

(b) in any other case-any action taken by the Minister under sub-section 65j (1) in relation to goods of a particular kind ceases to have effect and, if a conference has, under section 65j, been arranged or such a conference has commenced or been completed without the Commission making a recommendation under section 65k, the Minister may make an application to the Court for an order under sub-section 65c (5) or 65f (1) without regard to the action taken under sub-section 65j (1).''.

Page 24, proposed sub-section 65m (1), lines 15 to 27, leave out the sub-section, insert the following sub-section:

""(1) Where-

(a) an order has been made under sub-section 65C (5) in relation to goods of a particular kind; or

(b) the Minister publishes a notice under section 65L in relation to goods of that kind,

the Minister shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a "supplier') who supplied or proposes to supply goods of that kind to notify the Commission within the period (in this section referred to as the "relevant period') of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in the Gazette, to notify the Commission whether the supplier wishes the Commission to hold a conference.''.

Page 24, proposed sub-section 65M (2), line 31, leave out ""notice published under sub-section 65C (5)'', insert ""order made under sub-section 65C (5)''.

Pages 24 and 25, proposed section 65N, line 39 (page 24) to line 5 (page 25), leave out the section, insert the following section:

""65N. As soon as practicable after the conclusion of a conference under section 65M the Commission shall-

(a) by notice in writing given to the Minister, recommend that the Minister:

(i) apply to the Court for an order that the order made under sub-section 65C (5)-

(A) be rescinded; or

(B) be varied;

(ii) take no action in relation to the order; or

(iii) rescind, vary, or take no action in relation to the notice under section 65L; and

(b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.''.

Page 25, proposed section 65P, lines 7 to 15, leave out the section, insert the following section:

""65P. Where the Commission, under section 65K or 65N, makes a recommendation to the Minister-

(a) the Minister shall have regard to the recommendation; and

(b) where the Minister decides to act otherwise than in accordance with the recommendation, the Minister shall, by notice in writing published in the Gazette, set out the reasons for the Minister's decision.''.

Page 27, after proposed section 65R, insert the following new section:

""65ra. A supplier or other person shall not be prejudiced with respect to rights against or obligations to any other person by voluntarily taking action to give effect to the provisions of this Division.''.

Debate ensued.

Question-That the amendments be agreed to-put.

The Committee divided-

AYES, 27

Senators- Archer Baume, Michael Baume, Peter Bjelke-Petersen Boswell Brownhill Carrick, Sir John Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Hill Jessop Kilgariff (Teller) Knowles Lewis MacGibbon Messner Newman Parer Puplick Sheil Teague Vanstone Watson Withers

NOES, 34

Senators- Aulich Black Bolkus Childs Chipp Coleman Colston Cook Cooney Devlin Elstob Evans Foreman Gietzelt Giles Haines Jones McIntosh (Teller) McKiernan Macklin Maguire Mason Morris Ray Reynolds Richardson Robertson Ryan Sanders Sibraa Siddons Tate Vigor Zakharov

Amendments negatived accordingly.

Senator Haines moved an amendment, viz: Page 28, at end of clause, add the following new section:

Cessation of Division in respect of foods and drinks

""65u. At the expiration of 2 years after the day on which this Division comes into operation, this Division shall cease to have effect in respect of goods which are foods and drinks intended for human consumption.''.

Debate ensued.

Question-That the words proposed to be added be added-put.

The Committee divided-

AYES, 35

Senators- Archer Baume, Michael Baume, Peter Bjelke-Petersen Boswell Brownhill Carrick, Sir John Chipp Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Haines Hamer Hill Jessop Kilgariff (Teller) Knowles Lewis MacGibbon Macklin Mason Messner Newman Parer Puplick Sanders Sheil Short Siddons Teague Vanstone Vigor Watson Withers

NOES, 28

Senators- Aulich Black Bolkus Childs Coleman Colston Cook Cooney Devlin Elstob Evans Foreman Gietzelt Giles Jones McIntosh (Teller) McKiernan Maguire Morris Ray Reynolds Richardson Robertson Ryan Sibraa Tate Walsh Zakharov

Amendment agreed to accordingly.

Clause 35, as amended, agreed to.

Clauses 36 and 37, by leave, taken together and agreed to.

Clause 38 read-

Senator Durack moved an amendment, viz: Page 35, after proposed paragraph 74 (3) (b), add the following word and paragraph:

""or (c) a contract for or in relation to the provision of services of a professional nature.''.

Debate ensued.

Question-That the words proposed to be added be added-put.

The Committee divided-

AYES, 29

Senators- Archer Baume, Michael Baume, Peter Bjelke-Petersen Boswell Brownhill Carrick, Sir John Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Hill Jessop Kilgariff Knowles Lewis MacGibbon Messner Newman Parer Puplick Reid (Teller) Sheil Short Teague Vanstone Watson Withers

NOES, 35

Senators- Aulich Black Bolkus Childs Chipp Coleman Colston Cook Cooney Crowley Elstob Evans Foreman Gietzelt Giles Haines Jones (Teller) McIntosh McKiernan Macklin Maguire Mason Morris Ray Reynolds Richardson Robertson Ryan Sanders Sibraa Siddons Tate Vigor Walsh Zakharov

Amendment negatived accordingly.

And it being 10.30 p.m.: The Chairman of Committees (Senator Hamer), under Sessional Order, put the Question-That he do leave the Chair and report to the Senate.

Question-put and passed.

The President resumed the Chair; and Senator Hamer reported accordingly.