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Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010

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2008-2009-2010

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010

 

 

Schedule of the amendments made by the Senate

 

 

 

 

 

(1)     Schedule  1 , item  1 , page 1 6 (line 2) , before “ In this Schedule: ”, insert “ (1) ”.

(2)     Schedule  1 , item  1 , page 16 (after line 28) , after the definition of assert a right to payment in section  2 , insert:

associate regulator :

                     (a)  for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or

                     (b)  for the purposes of the application of this Schedule as a law of a State or a Territory—means:

                              (i)  the Commission; or

                             (ii)  a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.

(3)     Schedule  1 , item  1 , page 22 (after line 31) , after the definition of materials in section  2 , insert:

mixed supply : see section 3(11).

(4)     Schedule  1 , item  1 , page 28 (after line 9) , at the end of section  2 , add:

             (2)  In this Schedule:

                     (a)  a reference to engaging in conduct is a reference to doing or refusing to do any act, including:

                              (i)  the making of, or the giving effect to a provision of, a contract or arrangement; or

                             (ii)  the arriving at, or the giving effect to a provision of, an understanding; or

                            (iii)  the requiring of the giving of, or the giving of, a covenant; and

                     (b)  a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including:

                              (i)  the making of, or the giving effect to a provision of, a contract or arrangement; or

                             (ii)  the arriving at, or the giving effect to a provision of, an understanding; or

                            (iii)  the requiring of the giving of, or the giving of, a covenant; and

                     (c)  a reference to refusing to do an act includes a reference to:

                              (i)  refraining (otherwise than inadvertently) from doing that act; or

                             (ii)  making it known that that act will not be done; and

                     (d)  a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

(5)     Schedule  1 , item  1 , page 28 (line 10) to page 29 (line 5) , omit section  3 , substitute:

3   Meaning of consumer

Acquiring goods as a consumer

             (1)  A person is taken to have acquired particular goods as a consumer if, and only if:

                     (a)  the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:

                              (i)  $40,000; or

                             (ii)  if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or

                     (b)  the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or

                     (c)  the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.

             (2)  However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:

                     (a)  for the purpose of re-supply; or

                     (b)  for the purpose of using them up or transforming them, in trade or commerce:

                              (i)  in the course of a process of production or manufacture; or

                             (ii)  in the course of repairing or treating other goods or fixtures on land.

Acquiring services as a consumer

             (3)  A person is taken to have acquired particular services as a consumer if, and only if:

                     (a)  the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:

                              (i)  $40,000; or

                             (ii)  if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or

                     (b)  the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.

Amounts paid or payable for purchases

             (4)  For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies.

             (5)  For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be:

                     (a)  if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply—the price at which they could have been purchased from the supplier; or

                     (b)  if:

                              (i)  paragraph (a) does not apply; but

                             (ii)  at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;

                            the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

                     (c)  if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.

Amounts paid or payable for other acquisitions

             (6)  For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies.

             (7)  For the purposes of subsection (1) or (3), if:

                     (a)  goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but

                     (b)  at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;

the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.

             (8)  For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time.

Amounts paid or payable for obtaining credit

             (9)  If:

                     (a)  a person obtains credit in connection with the acquisition of goods or services by him or her; and

                     (b)  the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit;

obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.

Presumption that persons are consumers

           (10)  If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.

Mixed supplies

           (11)  A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.

Supplies to consumers

           (12)  In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.

(6)     Schedule  1 , item  1 , page 46 (line 6) , before “ Without ”, insert “ (1) ”.

(7)     Schedule  1 , item  1 , page 47 (after line 5) , at the end of section  25 , add:

             (2)  Before the Governor-General makes a regulation for the purposes of subsection (1)(n) prescribing a kind of term, or a kind of effect that a term has, the Minister must take into consideration:

                     (a)  the detriment that a term of that kind would cause to consumers; and

                     (b)  the impact on business generally of prescribing that kind of term or effect; and

                     (c)  the public interest.

(8)     Schedule  1 , item  1 , page 79 (after line 3) , at the end of section  61 , add:

             (4)  This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.

(9)     Schedule  1 , item  1 , page 80 (after line 7) , at the end of Subdivision C , add:

64A   Limitation of liability for failures to comply with guarantees

             (1)  A term of a contract for the supply by a person of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee (other than a guarantee under section 51, 52 or 53) to one or more of the following:

                     (a)  the replacement of the goods or the supply of equivalent goods;

                     (b)  the repair of the goods;

                     (c)  the payment of the cost of replacing the goods or of acquiring equivalent goods;

                     (d)  the payment of the cost of having the goods repaired.

             (2)  A term of a contract for the supply by a person of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee to:

                     (a)  the supplying of the services again; or

                     (b)  the payment of the cost of having the services supplied again.

             (3)  This section does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the person who supplied the goods or services to rely on that term of the contract.

             (4)  In determining for the purposes of subsection (3) whether or not reliance on a term of a contract is fair or reasonable, a court is to have regard to all the circumstances of the case, and in particular to the following matters:

                     (a)  the strength of the bargaining positions of the person who supplied the goods or services and the person to whom the goods or services were supplied (the buyer ) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;

                     (b)  whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;

                     (c)  whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

                     (d)  in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.

(10)   Schedule  1 , item  1 , page 82 (after line 25) , after subsection 69(1) , insert:

          (1A)  The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:

                     (a)  given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or

                     (b)  contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.

(11)   Schedule  1 , item  1 , page 94 (after line 20) , after subsection 88 (1 ), insert:

          (1A)  Subsection (1) does not apply to:

                     (a)  bringing, or asserting an intention to bring, legal proceedings against the consumer; or

                     (b)  taking, or asserting an intention to take, any other action against the consumer;

to enforce a liability under section 85(3), or a liability of a kind referred to in section 85(6).

(12)   Schedule  1 , item  1 , page 125 (line 7) , omit “ of a particular kind ”.

(13)   Schedule  1 , item  1 , page 125 (lines 8 to 10) , omit paragraph 131 ( 1 )( b ), substitute:

                     (b)  the supplier becomes aware of the death or serious injury or illness of any person and:

                              (i)  considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods; or

                             (ii)  becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods;

(14)   Schedule  1 , item  1 , page 125 (lines 17 to 20) , omit paragraphs 131 (2)(a) and ( b ), substitute:

                     (a)  it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods; or

                     (b)  it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods; or

(15)   Schedule  1 , item  1 , page 125 (line 21) , after “ supplier ”, insert “ , or another person, ”.

(16)   Schedule  1 , item  1 , page 125 (line 25) , after “ supplier ”, insert “ , or another person, ”.

(17)   Schedule  1 , item  1 , page 125 (line 27) , after “ supplier ”, insert “ or other person ”.

(18)   Schedule  1 , item  1 , page 126 (line 26) , omit “ of a particular kind ”.

(19)   Schedule  1 , item  1 , page 126 (lines 27 to 29) , omit paragraph 132 ( 1 )( b ), substitute:

                     (b)  the supplier becomes aware of the death or serious injury or illness of any person and:

                              (i)  considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate; or

                             (ii)  becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate;

(20)   Schedule  1 , item  1 , page 127 (lines 1 to 6) , omit paragraphs 132 (2)(a) and ( b ), substitute:

                     (a)  it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods to which the services relate; or

                     (b)  it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods to which the services relate; or

(21)   Schedule  1 , item  1 , page 127 (line 7) , after “ supplier ”, insert “ , or another person, ”.

(22)   Schedule  1 , item  1 , page 127 (line 11) , after “ supplier ”, insert “ , or another person, ”.

(23)   Schedule  1 , item  1 , page 127 (line 13) , after “ supplier ”, insert “ or other person ”.

(24)   Schedule  1 , item  1 , page 128 (after line 6) , at the end of Division  5 , add:

132A   Confidentiality of notices given under this Division

             (1)  A person must not disclose to any other person a notice given under this Division, or any part of or information contained in such a notice, unless the person who gave the notice has consented to the notice, or that part or information, not being treated as confidential.

             (2)  This section does not apply if:

                     (a)  the disclosure is made by the Commonwealth Minister to:

                              (i)  another responsible Minister; or

                             (ii)  the regulator; or

                            (iii)  an associate regulator; or

                     (b)  the disclosure is made by the Commonwealth Minister and the Commonwealth Minister considers that the disclosure is in the public interest; or

                     (c)  the disclosure is made by a member of the staff of the regulator, or an associate regulator, in the performance of his or her duties as such a member of staff, and is made:

                              (i)  to another member of the staff of the regulator or associate regulator; or

                             (ii)  if the person making the disclosure is a member of the staff of the regulator—to an associate regulator; or

                            (iii)  if the person making the disclosure is a member of the staff of an associate regulator—to the regulator or another associate regulator; or

                     (d)  the disclosure is required or authorised by or under law; or

                     (e)  the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty.

(25)   Schedule  1 , item  1 , page 207 (lines 15 to 25) , section  231, omit the item .

(26)   Schedule  1 , item  1 , page 235 (lines 8 to 25) , omit section 265, substitute:

265   Termination of contracts for the supply of services that are connected with rejected goods

             (1)  If:

                     (a)  under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods; and

                     (b)  the supplier is required under section 263(4)(a) to give the consumer a refund; and

                     (c)  a person supplies, in trade or commerce, services to the consumer that are connected with the rejected goods;

the consumer may terminate the contract for the supply of the services.

             (2)  The termination takes effect:

                     (a)  at the time the termination is made known to the supplier of the services (whether by words or by conduct indicating the consumer’s intention to terminate the contract); or

                     (b)  if it is not reasonably practicable to communicate with the supplier of the services—at the time the consumer indicates, by means which are reasonable in the circumstances, his or her intention to terminate the contract.

             (3)  The consumer is entitled to recover, by action against the supplier of the services, a refund of:

                     (a)  any money paid by the consumer for the services; and

                     (b)  an amount that is equal to the value of any other consideration provided by the consumer for the services;

to the extent that the consumer has not already consumed the services at the time the termination takes effect.

(27)   Schedule  1 , item  1 , page 238 (lines 12 to 16) , omit subsection 269 ( 3 ), substitute:

             (3)  The consumer is entitled to recover, by action against the supplier of the services, a refund of:

                     (a)  any money paid by the consumer for the services; and

                     (b)  an amount that is equal to the value of any other consideration provided by the consumer for the services;

to the extent that the consumer has not already consumed the services at the time the termination takes effect.

(28)   Schedule  1 , item  1 , page 244 (after line 34) , at the end of section  276 , add:

             (3)  This section does not apply to a term of a contract that is a term referred to in section 276A(4).

(29)   Schedule  1 , item  1 , page 245 (before line 1) , before section  277 , insert:

276A   Limitation in certain circumstances of liability of manufacturer to seller

             (1)  Despite section 274, if goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that section of the manufacturer of the goods to a person (the supplier ) who supplied the goods to a consumer is limited to a liability to pay to the supplier an amount equal to:

                     (a)  the cost of replacing the goods; or

                     (b)  the cost of obtaining equivalent goods; or

                     (c)  the cost of having the goods repaired;

whichever is the lowest amount.

             (2)  Subsection (1) does not apply in relation to particular goods if the supplier establishes that it is not fair or reasonable for the liability of the manufacturer of the goods to be limited as mentioned in subsection (1).

             (3)  In determining for the purposes of subsection (2) whether or not it is fair or reasonable for the liability of a manufacturer to a supplier in relation to goods to be limited as mentioned in subsection (1), a court is to have regard to all the circumstances of the case, and in particular to the following matters:

                     (a)  the availability of suitable alternative sources of supply of the goods;

                     (b)  the availability of equivalent goods;

                     (c)  whether the goods were manufactured, processed or adapted to the special order of the supplier.

             (4)  This section is subject to any term of a contract between the manufacturer and the supplier imposing on the manufacturer a greater liability than the liability mentioned in subsection (1).

(30)   Schedule  2 , item  1 , page 256 (after line 27) , after the definition of enforcement order in section  130 , insert:

Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).

(31)   Schedule  2 , item  1 , page 322 (after line 2) , after section  139D , insert:

139DA   Application of section 229 of the Australian Consumer Law to a person other than a body corporate

                   If, as a result of the operation of Part 2.4 of the Criminal Code , a person other than a body corporate is:

                     (a)  convicted of an offence (the relevant offence ) against subsection 229(1) of the Australian Consumer Law; or

                     (b)  convicted of an offence (the relevant offence ) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 229(1) of the Australian Consumer Law;

the relevant offence is taken to be punishable on conviction by a fine not exceeding $550.



 

(32)   Schedule  5 , page 351 (after line 23) , after item  6 , insert:

6A  Subsection 4(1) (definition of Family Court Judge )

Repeal the definition.

(33)   Schedule  5 , page 362 (after line 21) , after item 100, insert:

100A  Subsection 87CB(1)

Omit “section 82”, substitute “section 236 of the Australian Consumer Law”.

 

 

 

 

 

Rosemary Laing

Clerk of the Senate

 

 

The Senate

24 June 2010