Trade Practices Amendment Act (No. 1) 2001
No. 63, 2001
An Act to amend the Trade Practices Act 1974, and for related purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 2
3............ Schedule(s).......................................................................................... 2
Schedule 1—Amendments commencing on the 28th day after Royal Assent 3
Trade Practices Act 1974 3
Schedule 2—Amendments commencing at other times 13
Trade Practices Act 1974 13
Trade Practices Amendment Act (No. 1) 2001
No. 63, 2001
An Act to amend the Trade Practices Act 1974, and for related purposes
[Assented to 28 June 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Trade Practices Amendment Act (No. 1) 2001.
2 Commencement
(1) Subject to subsection (2), this Act commences on the 28th day after the day on which it receives the Royal Assent.
(2) Items 4 and 5 of Schedule 2 commence immediately after the later of:
(a) the commencement of section 1; and
(b) the commencement of item 2 of Schedule 1 to the A New Tax System (Trade Practices Amendment) Act 2000.
(3) The items of Schedule 2 (other than items 4 and 5) commence immediately after the commencement of item 260 of Schedule 1 to the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments commencing on the 28th day after Royal Assent
Trade Practices Act 1974
1 Subsection 50(6) (definition of market)
Omit all the words after “services”, substitute:
in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
2 Subsections 51AC(9) and (10)
Omit “$1,000,000”, substitute “$3,000,000”.
3 At the end of Part IVA
Add:
51ACAA Concurrent operation of State and Territory laws
It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.
4 At the end of Part IVB
Add:
51AEA Concurrent operation of State and Territory laws
It is the Parliament’s intention that a law of a State or Territory should be able to operate concurrently with this Part unless the law is directly inconsistent with this Part.
5 Application of items 3 and 4
The amendments made by items 3 and 4 apply in relation to a law of a State or Territory made before, on or after the commencement of those items.
6 At the end of section 65F
Add:
(10) For the purposes of this section, things that are goods at the time they are supplied are taken to be goods at all times after the supply, even if they become fixtures.
7 At the end of section 65R
Add:
(3) For the purposes of this section, goods includes things that were goods at the time they were supplied but became fixtures after the supply.
8 Application of items 6 and 7
The amendments made by items 6 and 7 apply in relation to goods supplied on or after the commencement of those items.
9 Subsection 79(1)
Omit all the words after “punishable”, substitute “on conviction by a fine not exceeding 2,000 penalty units”.
10 Application of item 9
The amendment made by item 9 only applies in relation to conduct engaged in on or after the commencement of that item.
11 At the end of subsection 79(1)
Add:
Note 1: The amount of a penalty unit is stated in section 4AA of the Crimes Act 1914.
Note 2: If a body corporate is convicted of an offence under this subsection, subsection 4B(3) of the Crimes Act 1914 allows the Court to impose a fine that is not greater than 5 times the maximum fine that could be imposed by the Court on an individual convicted of the offence.
12 Paragraph 79(4)(b)
Omit “80A”, substitute “86C or 86D”.
13 Application of item 12
The amendment made by item 12 only applies in relation to conduct engaged in on or after the commencement of that item.
14 After section 79A
Insert:
79B Preference must be given to compensation for victims
If the Court considers that:
(a) it is appropriate to order a person (the defendant):
(i) to pay a pecuniary penalty under section 76; or
(ii) to impose a fine under section 79;
in respect of a contravention, or an involvement in a contravention, of this Act; and
(b) it is appropriate to order the defendant to pay compensation to a person who has suffered loss or damage in respect of the contravention or the involvement; and
(c) the defendant does not have sufficient financial resources to pay both the pecuniary penalty or fine and the compensation;
the Court must give preference to making an order for compensation.
15 Application of item 14
The amendment made by item 14 does not apply in relation to a proceeding instituted under this Act in relation to a person if, before the commencement of that item, the Court:
(a) ordered the person to pay a pecuniary penalty; or
(b) imposed a fine on the person.
16 Section 80A
Repeal the section.
17 Saving
Despite the repeal of section 80A of the Trade Practices Act 1974 made by item 16, an order made under that section that is in force immediately before the commencement of that item continues in force as if the repeal had not been made.
18 Subsection 82(1)
After “Part IV”, insert “, IVA”.
19 Application of item 18
The amendment made by item 18 only applies in relation to conduct engaged in on or after the commencement of that item.
20 Subsection 82(2)
Omit all the words after “within”, substitute “6 years after the day on which the cause of action that relates to the conduct accrued”.
21 Application of item 20
(1) The amendment made by item 20 applies in relation to conduct engaged in on or after the commencement of that item.
(2) The amendment made by item 20 also applies in relation to conduct engaged in before the commencement of that item, but only if the period that:
(a) relates to the conduct; and
(b) applied under subsection 82(2) of the Trade Practices Act 1974 before the commencement of that item;
had not ended when that item commenced.
22 Section 83
Omit “80A or 81”, substitute “81, 86C or 86D”.
23 Application of item 22
The amendment made by item 22 only applies in relation to conduct engaged in on or after the commencement of that item.
24 After section 86B
Insert:
86C Non‑punitive orders
(1) The Court may, on application by the Commission, make one or more of the orders mentioned in subsection (2) in relation to a person who has engaged in contravening conduct.
(2) The orders that the Court may make in relation to the person are:
(a) a community service order; and
(b) a probation order for a period of no longer than 3 years; and
(c) an order requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(d) an order requiring the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
(4) In this section:
community service order, in relation to a person who has engaged in contravening conduct, means an order directing the person to perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the community.
Example: The following are examples of community service orders:
(a) an order requiring a person who has made false representations to make available a training video which explains advertising obligations under this Act; and
(b) an order requiring a person who has engaged in misleading or deceptive conduct in relation to a product to carry out a community awareness program to address the needs of consumers when purchasing the product.
contravening conduct means conduct that:
(a) contravenes Part IV, IVA, IVB or V or section 75AU; or
(b) constitutes an involvement in a contravention of any of those provisions.
probation order, in relation to a person who has engaged in contravening conduct, means an order that is made by the Court for the purpose of ensuring that the person does not engage in the contravening conduct, similar conduct or related conduct during the period of the order, and includes:
(a) an order directing the person to establish a compliance program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(b) an order directing the person to establish an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to revise the internal operations of the person’s business which lead to the person engaging in the contravening conduct.
86D Punitive orders—adverse publicity
(1) The Court may, on application by the Commission, make an adverse publicity order in relation to a person who:
(a) has been ordered to pay a pecuniary penalty under section 76; or
(b) is guilty of an offence under section 79.
(2) In this section, an adverse publicity order, in relation to a person, means an order that:
(a) requires the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; and
(b) requires the person to publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s powers under any other provision of this Act.
25 Application of item 24
The amendment made by item 24 only applies in relation to conduct engaged in on or after the commencement of that item.
26 Subsection 87(1)
Omit “80A or 82”, substitute “82, 86C or 86D”.
27 Application of item 26
The amendment made by item 26 only applies in relation to conduct engaged in on or after the commencement of that item.
28 Subsections 87(1A) and (1B)
Repeal the subsections, substitute:
(1A) Without limiting the generality of section 80, the Court may:
(a) on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IVA, IVB or V; or
(b) on the application of the Commission in accordance with subsection (1B) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), IVA, IVB or V;
make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (2)) if the Court considers that the order or orders concerned will:
(c) compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage; or
(d) prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.
(1B) The Commission may make an application under paragraph (1A)(b) on behalf of one or more persons identified in the application who:
(a) have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), IVA, IVB or V; and
(b) have, before the application is made, consented in writing to the making of the application.
29 Application of item 28
The amendment made by item 28 only applies to conduct engaged in on or after the commencement of that item.
30 Subsection 87(1C)
After “Part” (first occurring), insert “IV,”.
31 Subsection 87(1CA)
Repeal the subsection, substitute:
(1CA) An application under subsection (1A) may be made at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
32 Application of item 31
(1) The amendment made by item 31 applies in relation to conduct engaged in on or after the commencement of that item.
(2) The amendment made by item 31 also applies in relation to conduct engaged in before the commencement of that item, but only if the period that:
(a) relates to the conduct; and
(b) applied under subsection 87(1CA) of the Trade Practices Act 1974 before the commencement of that item;
had not ended when that item commenced.
33 At the end of Part VI
Add:
87CA Intervention by Commission
(1) The Commission may, with the leave of the Court and subject to any conditions imposed by the Court, intervene in any proceeding instituted under this Act.
(2) If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
34 Application of item 33
The amendment made by item 33 only applies in relation to proceedings instituted on or after the commencement of that item.
35 Paragraph 157(1)(d)
Omit “80A”, substitute “86C or 86D”.
36 Application of item 35
The amendment made by item 35 only applies in relation to conduct engaged in on or after the commencement of that item.
37 Subsection 163A(3)
Repeal the subsection, substitute:
(3) The Commission may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of a declaration of the kind that may be made under paragraph (1)(a).
38 Application of item 37
The amendment made by item 37 only applies in relation to matters arising on or after the commencement of that item.
39 At the end of section 171
Add:
(3) The report must also include:
(a) the number of:
(i) notices given by the Commission under section 155; and
(ii) authorisations given by the Commission under subsection 155(2); and
(iii) notices given by the Commission under section 155A; and
(b) a general description of the nature of the matters in respect of which the notices or authorisations were given; and
(c) the number of proceedings brought to challenge the validity of the notices or authorisations; and
(d) the number of entries onto premises pursuant to an authorisation under subsection 155(2); and
(e) the number of complaints received by the Commission; and
(f) a general summary of the kinds of complaints received by the Commission and how it dealt with them; and
(g) a general description of the major matters investigated by the Commission; and
(h) the number of times the Commission has intervened in proceedings and a general description of the reasons for doing so.
40 Subclause 50(6) of the Schedule (definition of market)
Omit all the words after “services”, substitute:
in:
(a) Australia; or
(b) a State; or
(c) a Territory; or
(d) a region of Australia.
Schedule 2—Amendments commencing at other times
Trade Practices Act 1974
1 Subparagraph 79B(1)(a)(ii)
Omit “section 79”, substitute “Part VC”.
2 Subsection 86C(4) (paragraph (a) of the definition of contravening conduct)
Omit “or V”, substitute “,V or VC”.
3 Application of items 1 and 2
The amendments made by items 1 and 2 only apply in relation to conduct engaged in on or after the commencement of those items.
4 Subsection 86C(4) (paragraph (a) of the definition of contravening conduct)
After “75AU”, insert “or 75AYA”.
5 Application of item 4
The amendment made by item 4 only applies in relation to conduct engaged in on or after the commencement of that item.
6 Paragraph 86D(1)(b)
Omit “section 79”, substitute “Part VC”.
7 Subsection 87(1C)
After “Part”, insert “IV,”.
8 Application of items 6 and 7
The amendments made by items 6 and 7 only apply in relation to conduct engaged in on or after the commencement of those items.
[Minister’s second reading speech made in—
House of Representatives on 29 June 2000
Senate on 29 November 2000]
(123/00)
