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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

Clause 38 further considered.

On the motion of Senator Haines the following amendment was debated and agreed to: Page 35, lines 1 to 10, leave out the clause, insert the following clause:

Warranties in relation to the supply of services

""38. Section 74 of the Principal Act is amended-

(a) by inserting in sub-section (2) "(other than services of a professional nature provided by a qualified architect or engineer)' after "services' (first occurring); and

(b) by omitting sub-section (3) and substituting the following sub-section:

"(3) A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred under-

(a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or

(b) a contract of insurance.'.''.

Clause 38, as amended, agreed to.

Clauses 39 to 45, by leave, taken together and agreed to.

Senator Haines moved an amendment, viz: Page 38, after clause 45, insert the following new clause:

""45a. (1) After section 74g of the Principal Act, the following section is inserted:

Liability of manufacturer or importer in respect of certain defective motor vehicles

"74ga. (1) In this section-

""authorized service agent'', in relation to the manufacturer of a motor vehicle, means a person authorized by the manufacturer to effect repairs to the motor vehicle for the purposes of the express warranty given by the manufacturer in respect of the motor vehicle;

""motor vehicle'' includes a motor cycle.

"(2) This section applies in relation to a motor vehicle where a consumer has acquired the motor vehicle in circumstances in which an express warranty given, in or in relation to trade or commerce, by a corporation that is the manufacturer of the motor vehicle is applicable in respect of the acquisition.

"(3) Where this section applies in relation to a motor vehicle, a consumer becomes entitled to a remedy under this section in respect of that motor vehicle where, while the relevant warranty is still in force and within one year from the date on which the motor vehicle was first supplied to a consumer-

(a) on not less than 4 occasions, an authorized service agent has been given an opportunity of remedying a particular defect to which the warranty is applicable (whether or not the authorized service agent is the same person on each occasion) and the defect has not been satisfactorily remedied; or

(b) the motor vehicle has been out of service for more than 30 days (whether in a continuous period or not) by reason of any defect or defects to which the warranty is applicable notwithstanding that reasonable and prompt steps have been taken to enable an authorized service agent to attend to the defect or defects.

"(4) Where a consumer who is entitled to a remedy under this section informs the manufacturer, or an authorized service agent, in writing, that he wishes to avail himself of that remedy and arranges for the surrender of the motor vehicle to the manufacturer or an authorized service agent, the manufacturer shall, at the option of the manufacturer, either-

(a) supply to the consumer, without charge, a new motor vehicle substantially the same (except as regards defects) as the motor vehicle concerned and covered by a warranty corresponding to the original warranty on the surrendered vehicle; or

(b) make a payment, in accordance with this section, of an amount equal to the amount that was, in the transaction by which a consumer first acquired the motor vehicle, treated as the cash price of the motor vehicle, less a fair deduction for depreciation having regard to the distance over which the motor vehicle has been driven and any damage to the motor vehicle not attributable to defects covered by the warranty.

"(5) A payment by the manufacturer in accordance with paragraph (4) (b) shall be made to, or divided among, the person or persons who have a legal interest (including a security interest) in the motor vehicle concerned at the time of its surrender and, if there is more than one such person, in such shares as are agreed among them or determined by the Court in accordance with this section.

"(6) If the manufacturer is uncertain as to the person to whom a payment should be made or as to the proper shares of persons in such a payment, the manufacturer may pay the amount into the Court.

"(7) The Court may, on the application of any person interested, make such orders (including mandatory injunctions) as it thinks necessary and just for giving effect to this section, including orders-

(a) for the just disbursement of moneys paid into the Court; and

(b) for declaring, or adjusting in such a manner as is just, the rights and liabilities of persons arising out of transactions in relation to a motor vehicle surrendered in accordance with this section or in relation to moneys paid by a manufacturer under this section.

"(8) Where a new motor vehicle is supplied by a manufacturer to a consumer in accordance with paragraph (4) (a), the same rights and liabilities exist in and in relation to the new motor vehicle as existed in relation to the surrendered motor vehicle.

"(9) Where a manufacturer supplies a new motor vehicle or makes a payment in accordance with this section, all rights and title in the motor vehicle originally supplied vest in the manufacturer, free from all securities.'.

""(2) The amendment made by sub-section (1) applies in respect of motor vehicles first acquired by consumers on or after the day fixed for the coming into operation of this section.''.

Debate ensued.

Question-That the proposed new clause be inserted in the Bill-put.

The Committee divided-

AYES, 6

Senators- Haines Macklin (Teller) Mason Sanders Siddons Vigor

NOES, 57

Senators- Archer Aulich Baume, Michael Baume, Peter Bjelke-Petersen Black Boswell Brownhill Carrick, Sir John Childs Coleman Collard Colston Cook Cooney Crichton-Browne Crowley Devlin Durack Elstob Evans Foreman Gietzelt Giles Grimes 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 Watson Withers Zakharov

Amendment negatived accordingly.

Ordered-That the Chairman of Committees (Senator Hamer) report progress and ask leave to sit again.

The President resumed the Chair; and Senator Hamer reported that the Committee had considered the Bill, made progress, and asked leave to sit again.

Ordered-That the Committee have leave to sit again at a later hour of the day.