CONSUMER AFFAIRS AND FAIR TRADING AMENDMENT BILL 2006

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

SERIAL NO.  58

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Bill amends the Consumer Affairs and Fair Trading Act so as to:

·	clarify that the Minister and the Commissioner of Consumer Affairs may make, in the public interest, public warning statements about goods, services, businesses or individuals; 
·	amend Part 7 so that the consumer protection provisions dealing with door to door selling also apply to contracts formed as a result of unsolicited telephone calls (ie “telemarketing”);
·	amend the definition of ‘motor vehicle’ in section 125 so as to provide that a vehicle propelled by ‘hydrocarbon’ is a motor vehicle for the purposes of the Act;
·	amend provisions currently allowing for the Minister to make declarations, effectively excluding certain motor vehicles from the application of the Act, so that such exemptions are made by Regulation; and
·	make various statute law revision amendments identified by Parliamentary Counsel.

NOTES ON CLAUSES

PART 1 – PRELIMINARY MATTERS

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  The Bill when passed may be cited as the 
Consumer Affairs and Fair Trading Amendment Bill 2006.

Clause 2.	 Commencement

The Act will commence on a date fixed by Gazette notice.
 
Clause 3.	 Act amended

The Act being amended by this Bill is the Consumer Affairs and Fair Trading Act.

Clause 4.	New section 8A 
	
8A.	Public warning statements

This new section in the Act makes it clear that the Commissioner and the Minister can make public statements warning the public about goods, services, business practices, individuals or businesses that are unsatisfactory in some way.

The new provision is intended to clarify the effect of existing sections 7(1)(a) and (d) and 336. 

This section is based on similar provisions in the Fair Trading Acts in other jurisdictions (for example section 41A of the Fair Trading (Consumer Affairs) Act 1973 (ACT).

Clause 5.	

Amendment of section 96 (power of Court to 	prohibit payment or transfer of money or other property)

This is a statute law revision provision.

The specific provision providing that the penalty for breaching an order of the court under this section that is committed by a body-corporate is five times that of the penalty for an individual, is omitted.  

The reason is that the Justice Legislation Amendment Act 2006 (passed in the April 2006 Sittings) amended the Interpretation Act so that the penalty for a body corporate is automatically five times that for an individual.  

Parliamentary Counsel will in future automatically make such statute law revision changes to legislation whenever an Act etc is amended.

Clause 6.	Amendment of Part 7 heading

The heading to this Part is changed to reflect that the Part will also deal with telemarketing.

Clause 7.	Amendment of section 97 (Interpretation of Part 7)
 
Section 97(1) has an amendment of a statute law revision nature, with the removal of the words “unless the contrary intention appears”.  

The reason is that the Justice Legislation Amendment Act 2006 (passed in the April 2006 Sittings) amended the Interpretation Act so that these words are redundant.  

Parliamentary Counsel will in future automatically make such a statute law revision change to legislation whenever an Act etc is amended.

A new definition of “cooling-off period” is inserted in section 101A to accommodate “telemarketing”.

A new definition of “dealer” is inserted in section 97A to accommodate “telemarketing”.

A definition of “telemarketing” is inserted in section 97(1).  This is similar to the existing definition of door-to-door trading but refers to the making of telephone calls instead of calling on people.

The definition of door-to-door trading is amended to reflect there is now a definition of “telemarketing”.

Clause 8.	New section 97A
 
97A.	Dealer

A new definition of dealer is inserted to accommodate “telemarketing”.

Clause 9.	Amendment of section 98 (Contracts to which Part 7 applies)

Section 98(1) is amended so as to apply Part 7 to contracts formed over the telephone (ie “telemarketing”).  

Clause 10.	Amendment of section 100 (Certain Part 7 contracts to be prescribed contracts)

The dollar value of contracts which are “prescribed contracts” will in future be set out only in the regulations.

Clause 11.	Amendment of section 101 (Requirements in relation to prescribed contracts)

Similar disclosure requirements are imposed on contracts made by traditional door-to-door traders and telemarketers.

The consumer in a telemarketing arrangement must be fully informed of the terms of the contract, including the right to cooling off period.

Under a telemarketing arrangement, the consumer must be given a copy of the contract, and other information, within 5 days.  With the consumer’s consent, the documents can be emailed.

Clause 12.	New section 101A
	
101A.	Cooling-off period
	
The cooling off period for a traditional door-to-door sale contract remains at 10 days.  For a telemarketing contract, the cooling-off period of 10 days starts from when the contracts and other documents are received by the consumer.

Clause 13.	Amendment of Part 7, Division 3 heading

The heading to this Part is changed to reflect that the Part will also deal with telemarketing.

Clause 14.	Amendment of section 103 (Dealers not to call during certain hours)

This section will also apply to telemarketers.

Clause 15.	Amendment of section 104 (Dealers to indicate their purpose for making calls)

This section will now also apply to telemarketers.

Because this section will now also apply to telemarketers, the section is amended so that the requirement that a seller produce an identity card will only apply to door-to-door traders.

Clause 16.	New section 105A

A telemarketer must end the telephone call when requested to do so by a consumer. The telemarketer must not call that person again for at least 30 days.

This provision is intended to prevent harassment.

Clause 17.	Amendment of section 107 (right of consumer to rescind in certain circumstances)

A consumer has the right to rescind a contract if the seller breaches new section 105A.	

Clause 18.	Amendment of section 125 (Definitions for purposes of Part 10)

The definition of “motor vehicle” is amended to include a vehicle that is propelled by hydrocarbon.  This overcomes a potential technical issue arising from the development of non-petroleum based hydrocarbon fuels.

Exemption from the application of this section will in future be made by Regulation rather than Ministerial Declaration.

Clause 19.	Amendment of section 169 (Exclusions from duty 	to repair)

Exemption from the application of this section will in future be made by Regulation rather than Ministerial Declaration.

Clause 20.	Further amendments

Provides for a schedule of statute law revision type amendments.

Schedule:	
The schedule amends the penalty provisions in the Act to omit the specific provisions providing that the penalty for a body-corporate is five times that of the penalty for an individual.  

The reason is that the Justice Legislation Amendment Act 2006 (passed in the April 2006 Sittings) amended the Interpretation Act so that the penalty for a body corporate is automatically five times that for an individual. 

Parliamentary Counsel will, in future, automatically make such statute law revision changes to legislation whenever an Act etc is amended.

The amendments to the penalty provisions have no effect on the actual penalties that can be applied either to individuals or corporate bodies.