2010

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

                                    				  SERIAL NO. 132  

EXPLANATORY STATEMENT

CONSUMER AFFAIRS AND FAIR TRADING AMENDMENT (NATIONAL UNIFORM LEGISLATION) BILL 2010

GENERAL OUTLINE

This Bill amends the Consumer Affairs and Fair Trading Act so as to apply, as the consumer law of the Northern Territory, the Australian Consumer Law.  The Australian Consumer Law is set out in Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth (which is the renamed Trade Practices Act) and regulations made under section 139G of that Act.
The Bill repeals the current provisions in the Consumer Affairs and Fair Trading Act that will be covered by the Australian Consumer Law, including:
·	Fair trading provisions in Part 5;
·	Product safety and product information provisions in Part 4;
·	Enforcement provisions in Part 6; and
·	Door to door trading provisions in Part 7.
The Bill also repeals the provisions establishing the Consumer Affairs Council.
The Bill makes consequential amendments to other Acts and Regulations.

NOTES ON CLAUSES

Part 1			Preliminary matters

Clause 1.	Short title

The Act will be called the Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010.

Clause 2.	Commencement 

The Act will commence on the day fixed by the Administrator by notice in the Gazette.

Part 2		Amendment of Consumer Affairs and Fair Trading Act 

	This Part amends the Consumer Affairs and Fair Trading Act.

Clause 3.	Act amended

	This Part amends the Consumer Affairs and Fair Trading Act.

Clause 4.	Long title replaced

	The long title to the Act is replaced.

Clause 5.	Section 3 amended

Section 3 is amended to include a reference to new Part 4, Division 4, of the Act, which is a new section that also deals with Crown immunity in relation to the Australian Consumer Law.

Clause 6.	Sections 5A and 5B inserted
 	
	5A	Interpretation provisions do not apply to Australian Consumer Law (NT)

The definitions of terms set out in sections 4 and 5 of the Act do not apply to the interpretation of the Australian Consumer Law (which has its own definitions).

	5B	Reference to this Act includes Australian Consumer Law (NT)

To avoid doubt, the term “this Act” in the Consumer Affairs and Fair Trading Act includes the Australian Consumer Law (NT).

Clause 7.	Section 7 amended

The administration of the Australian Consumer Law is included as a function of the Commissioner of Consumer Affairs, and references to the Consumer Affairs Council are omitted.

Clause 8.	Section 8A repealed

Section 8A is repealed, as the issuing of public warning statements is dealt with as part of the Australian Consumer Law.

Clause 9.	Section 12 amended
	
Section 12 is amended to omit references to the Consumer Affairs Council.

Clause 10.	Part 2, Division 2 repealed
	
Provisions dealing with the establishment, membership, functions and meetings of the Consumer Affairs Council are repealed.

Clause 11.	Section 18 replaced

Section 18, which deals with authorised officers for the purposes of Parts of the Act, is amended to reflect the new numbering of the Parts of the Act.

Clause 12.	Section 21 amended
	
References to the Australian Consumer Law are inserted and references to repealed provisions are omitted.  
Statute Law Revision amendments are made.
Sub-section 7 is omitted as this is dealt with as part of the Australian Consumer Law.

Clause 13.	Parts 4 and 5 (other than section 68A) replaced
	
Part 4 (which deals with product safety) and Part 5 (other than section 68A) (which deals with fair trading) are repealed, and replaced with new Parts 4 and 5.  

New Part 4 applies the Australian Consumer Law as a law of the Territory, and new Part 5 inserts new provisions supporting the Australian Consumer Law.  

Section 68A (which deals with Tort Law Reform and is unrelated to the Australian Consumer Law) is 
re-numbered.

Part 4	Australian Consumer Law

Division 1 	Interpretation

25	Interpretation 
	
Inserts definitions of terms used in, or necessary for the application of, the Australian Consumer Law.

Division 2	Application of Australian Consumer Law

26	Australian Consumer Law text
	
The Australian Consumer Law text consists of Schedule 2 to the Competition and Consumer Act 2010 (Cth) and regulations made under section 139G of that Act.

27	Application of Australian Consumer Law 
	
The Australian Consumer Law text, in force from time to time, applies as a law of the Northern Territory, and is called the Australian Consumer Law (NT).

28	Future modifications of Australian Consumer Law text
	
	A modification to the Australian Consumer Law text can be excluded from being law in the Northern Territory, if a regulation to that effect is made under this Act within two months of the Commonwealth making the modification.

29	Meaning of regulator in Australian Consumer Law for purposes of this jurisdiction
	
The regulator in the Northern Territory for the purposes of the Australian Consumer Law is the Commissioner of Consumer Affairs.

30	Interpretation of Australian Consumer Law
	
The Commonwealth Acts Interpretation Act 1901 (Cth) applies to the Australian Consumer Law, and the Northern Territory Interpretation Act does not.

31	Application of Australian Consumer Law
	
Sub-clause (1) provides that the Australian Consumer Law (NT) applies to persons carrying on business in the Northern Territory, to bodies corporate incorporated under a law of the Northern Territory, to residents of the Northern Territory, and to persons otherwise connected to the Northern Territory.  
Sub-clause (2) provides that the ACL (NT) applies even if the conduct occurs outside the 
Northern Territory, where there is a connection to the Northern Territory under sub-clause (1).

Division 3	References to Australian Consumer Law

32	References to Australian Consumer Law
	
	A reference in any instrument to the Australian Consumer Law means the Australian Consumer Law of any participating jurisdiction.

33	References to Australian Consumer Law of other jurisdictions
	
A reference in another participating jurisdiction to the Australian Consumer Law is a reference to the Australian Consumer Law text applying in that jurisdiction.

Division 4	Application of Australian Consumer Law to Crown 

34	Division does not apply to Commonwealth
	
The Commonwealth is not a participating jurisdiction for the purposes of the Division.

35	Application law of this jurisdiction
	
The Territory, and every other participating jurisdiction, is bound by the Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010 where it is carrying on business.

36	Application law of other jurisdictions
	
The Territory is bound by the Australian Consumer Law in other participating jurisdictions if the Territory is carrying on business.

37	Activities that are not business
	
This clause sets out what activities are not to be considered to be ‘carrying on business’ for the purposes of the Australian Consumer Law.

38	Crown not liable to pecuniary penalty or prosecution

The Crown cannot be liable to any pecuniary penalty or be prosecuted for an offence under the Australian Consumer Law.  This protection does not apply to an authority of the Crown.

Division 5	Miscellaneous matters 

39	Conferral of functions and powers on certain bodies
	
	Authorities and officers of the Commonwealth, who have certain powers under the Australian Consumer Law, have those powers in respect of the Australian Consumer Law as it is applied by this Act.  They also have the power to do all things necessary or convenient to be done in connection with performing those powers.

40	No doubling up of liabilities
	
A person cannot, in more than one jurisdiction, be punished for an offence or liable to a pecuniary penalty under the Australian Consumer Law for the same conduct.
 
Part 5	Provisions supporting application of Australian Consumer Law in Territory

41	Application of Criminal Code

Clarifies the application of the criminal responsibility provisions in Part IIA of the Northern Territory Criminal Code to offences created under the Australian Consumer Law.

42	Finding in proceedings to be evidence

	A finding of fact by a court in relation to certain proceedings under the Australian Consumer Law (for example a prosecution, an injunction, or a civil penalty), can be used as evidence by a person in an action for damages, an application for a compensation order, or an application for an order for redress for consumers.

43	Conduct of directors, employees or agents of bodies corporate

This clause sets out how the ‘state of mind’ of a body corporate in relation to an offence can be established by the conduct of a director, employee or agents of the body corporate, and how a body corporate can become liable for the actions of its directors, employees or agents.

44	Conduct of employees or agents of persons other than bodies corporate

This clause sets out how a principal can become liable for the actions of its employee or agent.

45	Court may make orders to preserve money or other property
	
A court can make an order prohibiting a person from transferring money or other assets if proceedings are being taken against that person under the Australian Consumer Law.

46	Application of Australian Consumer Law (NT) to bills for legal services under the Legal Profession Act
	
If a person is entitled to an itemised account for legal services under the Legal Profession Act, then the person is not also entitled to an itemised account under the Australian Consumer Law.

47	Compliance with standard for supply of electrical appliances

This clause essentially preserves the ability to remake the energy labelling regulations for certain white goods, which were made under product information provisions of the Consumer Affairs and Fair Trading Act.  This clause (and any regulations made under it) ceases to be of effect if an equivalent national product information standard is made by the Commonwealth.

Clause 14.	Section 68A amended
	
Statute law revision amendments are made to section 68A.  References to new section numbers of the Australian Consumer Law are inserted.  The section is renumbered as section 48.  

Clause 15.	Parts 6 and 7 repealed
	
Parts 6 and 7 of Consumer Affairs and Fair Trading Act are repealed.  These Parts deal with enforcement of the fair trading provisions, and with door to door trading, both of which will now be part of the Australian Consumer Law.

Clause 16.	Section 162 amended
	
Statute law revision amendments are made, and references to a new section number of the Australian Consumer Law is inserted.

Clause 17.	Section 168 amended
	
Reference to a new section number of the Australian Consumer Law is inserted.

Clause 18.	Section 330A amended

Reference to a new section number of the Australian Consumer Law is inserted.

Clause 19.	Section 331 amended

A statute law revision amendment is made to the section heading.

The definition of consumer in this section does not apply to the Australian Consumer Law (as it has its own definition of consumer).

Clause 20.	Section 336 replaced

Section 336 (Protection from liability) is rewritten in accordance with modern drafting style.  

Clause 21.	Part 16 heading replaced

	The new heading for Part 16 reads:

	Part 16	Repeals and transitional matters

Clause 22.	Schedule 1 repealed
	
Schedule 1 relates to the Consumer Affairs Council, and is repealed.
		
Clause 23.	Schedule 3 amended
	
Schedule 3 contains savings and transitional provisions relating to the commencement of the Consumer Affairs and Fair Trading Act.  The Schedule is amended to omit provisions relating to the Consumer Affairs Council, and to insert transitional matters related to the commencement of the Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010.

Sub-clause (1) inserts a new heading into the schedule.

Sub-clause (2) omits ‘Schedule’ and inserts ‘Part’, reflecting that the Schedule now has two Parts.

Sub-clause (3) omits paragraph 2 (Consumer Protection), which relates to the Consumer Affairs Council.

Sub-clause (4) makes a statute law revision amendment to paragraph 4(2)(b) of Schedule 3.

	Sub-clause (5) makes statute law revision amendments by omitting roman numerals.

Sub-clause (6) inserts a new Part 2 into the Schedule,		Part 2 Transitional matters for Consumer Affairs and Fair Trading Amendment (National Uniform Legislation) Act 2010

1.	Definitions

Definitions for this Part are inserted. 

2.	 Interpretation Act not affected

This Part does not limit Part III of the Interpretation Act.

3.	 Authorised officers

This provision saves the appointment of authorised officers under the Consumer Affairs and Fair Trading Act.

4.	 Proceedings already commenced

The Consumer Affairs and Fair Trading Act as it previously was, applies to any proceedings already commenced before the amendments commence.

5.	Sale price of motor vehicles partly recoverable if certain offence committed

This saves the operation of section 44, which is being repealed.  This will only apply to things that happened before section 44 was repealed.

6.	Unfair contract terms

This provision sets out how the unfair contract terms provisions of the Australian Consumer Law will apply to contracts entered into before the commencement of the Australian Consumer Law, if they are renewed or varied after the commencement of the Australian Consumer Law.

7.	Requests for itemised bills

Section 101 of the Australian Consumer Law does not apply to the supply of services before the commencement of the Australian Consumer Law.

8.	Pecuniary penalties – having regard to previous findings

A reference to previous findings under the Australian Consumer Law includes a reference to previous findings under the old provisions of Consumer Affairs and Fair Trading Act, or the Trade Practices Act 1974 (Cth), or equivalent state or territory provisions.

9.	 Transitional regulations

Regulations may be made making provision for any unforeseen circumstances relating to the transition to the Australian Consumer Law.  These regulations may have retrospective effect, back to the date of commencement of the relevant provision, but only to the extent that a person is not disadvantaged by decreasing their rights or imposing liabilities.
This clause, and any Regulations made under it, will cease to have effect after 1 year.

Clause 24.	Act further amended

Provides for a Schedule 1, which makes further amendments to the Consumer Affairs and Fair Trading Act consequential to the Australian Consumer Law or of a statute law revision nature.

Part 3	Consequential amendments of other laws 

Clause 25.	Consumer Affairs and Fair Trading Amendment 	Act 2006 amended

The commencement clause to the Consumer Affairs and Fair Trading Amendment Act 2006 is amended so that it commences on the same day as, but immediately after, this Act.

Uncommenced amendments contained in sections 5 to 17, section 20, and the Schedule, are repealed as they are now redundant.

Clause 26.	Consumer Affairs and Fair Trading Amendment 	Regulations (No.2) 2006 amended
	
The uncommenced provisions relating to door-to-door trading are repealed, as they are now redundant with the adoption of the Australian Consumer Law.

Clause 27.	Consumer Affairs and Fair Trading (Motor Vehicle 	Dealers) Regulations amended

The prescribed form for the sale of a used motor vehicle is amended to update references to the relevant legislation.

Clause 28.	Jurisdiction of Courts (Cross-vesting) Act 	amended
	
Section 10 of the Jurisdiction of Courts (Cross-vesting) Act is repealed and replaced.

The effect is that section is re-written so that the references to Trade Practices Act are changed to refer instead to the Australian Consumer Law.  

A new section 16 is inserted, which is a transitional provision dealing with matters that may be before a court before the commencement of the Australian Consumer Law, is inserted.

Clause 29.	Personal Injuries (Liabilities and Damages) Act 	amended
	
	Section 4 is amended to correctly refer to the Australian Consumer Law.

Clause 30.	Other laws amended

Provides for a Schedule 2, which amends other Acts consequential to the adoption of the Australian Consumer Law and the change of the name of the Trade Practices Act.

Clause 31.	Expiry of Part
	
This Part of the Act expires the day after commencement.

Part 4	Repeals 

Clause 32.	Regulations repealed

The regulations set out in Schedule 3 are repealed as, with the adoption of the Australian Consumer Law, they are redundant.

Schedule 1	Consumer Affairs and Fair Trading Act further amended
	
Schedule 1 makes further amendments to the Consumer Affairs and Fair Trading Act consequential to the Australian Consumer Law or of a statute law revision nature.  This includes adding some new definitions and correcting spelling and grammatical errors and cross references.

Schedule 2	Amendments of other laws

Schedule 2 amends other Acts and regulations consequential to the adoption of the Australian Consumer Law, the repeal of the provisions relating to the Consumer Affairs Council, and the change of the name of the Trade Practices Act. 

Schedule 3	Repeals

Any Regulations made under the Consumer Affairs and Fair Trading Act covering matters now dealt with under the Australian Consumer Law are repealed.