Consumer Protection Act 1999

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1999/Acts/Consumer%20Protection%20Act%201999.pdf

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Consumer Protection Act 1999
CONSUMER PROTECTION ACT 1999

1

BERMUDA
1999 : 45

CONSUMER PROTECTION ACT 1999

[Date of Assent 22 December 1999]

[Operative Date ]

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY

1 Citation
2 Definitions

PART II
ADMINISTRATION

3 Establishment of the Board
4 Functions of the Board
5 Minister may give policy

directions
6 Executive Officer
7 Staff
8 Board and staff to maintain

secrecy
9 Liability of Board and staff
10 Annual report

PART III
UNFAIR BUSINESS PRACTICES

11 Unfair business practices
12 Unfair business practices

prohibited
13 Remedies
14 Order to cease unfair business

practice
15 Order for immediate

compliance
16 Appeal from decision of

Minister
17 Assurance of voluntary

compliance
18 Investigations by order of

Minister
19 Offences

CONSUMER PROTECTION ACT 1999

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PART IV
CONSUMER SAFETY

20 General safety requirement
21 Offence
22 Safety regulations
23 Orders and notices to prohibit

supply of goods or give
warning of danger from goods

24 Suspension notices
25 Application to set aside

suspension notice
26 Power to obtain information

PART V
ENFORCEMENT

27 Inspectors
28 Power to make test purchases,

etc.

29 Power to enter premises and to
seize goods, etc.

30 Offences connected to exercise
of powers under section 29

31 Notice of test
32 Compensation

PART VI
MISCELLANEOUS

33 Defence of mistake, accident,
etc.

34 Offences by corporations
35 Regulations
36 Commencement

SCHEDULE

WHEREAS it is expedient to establish the Consumer Affairs
Board and to make provision for the protection of consumers in respect
of unfair business practices and the safety of consumer goods:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

PART I
PRELIMINARY

Citation
1 This Act may be cited as the Consumer Protection Act 1999.

Definitions
2 In this Act—

"the Board" means the Consumer Affairs Board established
under section 3;

"consumer" means a person to whom goods or services are or
may be supplied but does not include a person who receives
the goods or services in the course of a business carried on
by him;

CONSUMER PROTECTION ACT 1999

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"consumer goods" means any goods which are ordinarily
intended for private use or consumption except—

(i) water;

(ii) food;

(iii) controlled drugs as defined in the Misuse of
Drugs Act 1972;

(v) tobacco or tobacco products;

(vi) pharmaceutical or medicinal products available
without prescription;

"consumer representation" means a representation, statement,
offer, request or proposal—

(i) made respecting, or with a view to the supplying
of, goods or services, or both, to a consumer; or

(ii) made for the purpose of, or with a view to
receiving, consideration for goods or services, or
both, supplied or purporting to have been
supplied to a consumer;

"court" means in Part III the Supreme Court, but elsewhere
means a court of summary jurisdiction;

"Executive Officer" means the person appointed under section 6;

"goods" means chattels personal or any right or interest therein
other than choses in action and money, including chattels
that become fixtures, but not including securities as defined
in the Investment Business Act 1998;

"inspector" means a person appointed under section 27;

"the Minister" means the Minister for the time being responsible
for consumer affairs;

"notice to warn" means a notice under section 23(1)(c);

"prescribed" means prescribed by regulations;

"prohibition notice" means a notice under section 23(1)(b);

"prohibition order" means an order under section 23(1)(a);

"safe", in relation to any consumer goods, means such that there
is no risk, or no risk apart from one reduced to a minimum,
that any of the following will (whether immediately or after a
definite or indefinite period) cause the death of, or any
personal injury to, any person whatsoever, that is to say—

CONSUMER PROTECTION ACT 1999

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(i) the goods;

(ii) the keeping, use or consumption of the goods;

(iii) the assembly of any of the goods which are, or
are to be, supplied unassembled;

(iv) any emission or leakage from the goods or, as a
result of the keeping, use or consumption of the
goods, from anything else; or

(v) reliance on accuracy of any measurement,
calculation or other reading made by or by
means of the goods;

"safety provision" means the general safety requirement in
section 20 or any provision of safety regulations, a prohibition
order, a prohibition notice or a suspension notice;

"safety regulations" means regulations made under section 22;

"unfair business practice" means an unfair business practice set
out in section 11.

PART II
ADMINISTRATION

Establishment of the Board
3 (1) There is established a body to be called "the Consumer
Affairs Board" which shall perform the functions assigned to the Board
by this Act and by any other statutory provision.

(2) The Board shall consist of not more than twelve persons
appearing to the Minister to have training, knowledge or experience,
relevant to consumer affairs.

(3) The Minister shall appoint the members of the Board for
such term not exceeding three years as may be specified in their
respective instruments of appointment, and shall appoint from among
them a Chairman and Deputy Chairman.

(4) In the absence of the Chairman, the Deputy Chairman shall
act as Chairman and, in the absence of both the Chairman and the
Deputy Chairman, the members present at a meeting of the Board shall
elect one of them to preside at that meeting.

(5) At a meeting of the Board, seven members shall form a
quorum.

(6) Subject to this Act, the Board shall determine their own
procedure.

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(7) The expenses of the Board shall be met out of funds
appropriated by the Legislature.

Functions of the Board
4 The functions of the Board are—

(a) to ensure and protect the rights of consumers and, in
particular to review and keep under review business
practices, to regulate product safety, to ensure the
provision of adequate information to the consumer and
to monitor the timeliness of repairs and other services;

(b) to advise the Minister on any consumer protection
matter referred to the Board by the Minister or which, of
their own initiative, the Board consider appropriate;

(c) to conduct research on consumer matters, and to
educate the public by the production and distribution of
information on the rights of consumers and better
business practices;

(d) to use their good offices in an informal manner to
conciliate and settle consumer complaints or grievances
and to maintain a database of complaints and
grievances;

(e) to encourage businesses to adhere to better business
practices;

(f) to advise on the issue of orders or notices relating to
safety or unfair business practices;

(g) to keep under review the working of this Act and, where
so required by the Minister or, as the Board of their own
initiative consider appropriate, submit to the Minister
proposals for amending it.

Minister may give policy directions
5 The Minister, after consultation with the Board, may give such
general directions as to the policy to be followed by the Board in the
performance of their functions as appear to the Minister to be necessary
in the public interest; and the Board shall give effect to any such
directions.

Executive Officer
6 (1) There shall be appointed a public officer to be Executive
Officer to the Board.

(2) The Board may delegate any of their functions to the
Executive Officer.

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(3) The Executive Officer shall act as secretary to the Board,
shall be responsible for the day to day management of the affairs of the
Board and, subject to the policy directions of the Board or of the Minister
under section 5, shall be responsible for carrying out the functions of the
Board.

(4) The Executive Officer shall—

(a) receive, act on and attempt to settle, complaints
respecting unfair business practices;

(b) maintain available for public inspection a record of—

(i) assurances of voluntary compliance entered into
under Part III;

(ii) orders to cease engaging in unfair business
practices issued under Part III.

Staff
7 There may be appointed such other public officers as the
Minister considers necessary to enable the Board to carry out their
functions.

Board and staff to maintain secrecy
8 The members of the Board, the Executive Officer and every
person acting under the direction of the Board, shall maintain secrecy in
respect of all matters that come to their knowledge in the exercise of their
functions, and shall not communicate any such matter to any person
except for the purpose of carrying out their functions under this Act.

Liability of Board and staff
9 No action, suit, prosecution or other proceeding shall lie against
the members of the Board or any public officer acting on behalf of the
Board in respect of any act done in good faith in execution or intended
execution of any function under this Act.

Annual report
10 (1) Without limiting the duty of the Board to report at any time
on any matter referred to the Board by the Minister, the Board shall, not
later than six months after the end of each year, furnish to the Minister a
report on the activities of the Board in that year.

(2) The Minister shall lay a copy of every such report before
both Houses of the Legislature as soon as practicable after the date on
which it is furnished to him.

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PART III
UNFAIR BUSINESS PRACTICES

Unfair business practices
11 For the purposes of this Part the following shall be deemed to be
unfair business practices—

(a) a false, misleading or deceptive consumer representation
including—

(i) a representation that the goods or services have
sponsorship, approval, performance charac-
teristics, accessories, uses, ingredients, benefits
or quantities they do not have;

(ii) a representation that the person who is to
supply the goods or services has sponsorship,
approval, status, affiliation or connection he
does not have;

(iii) a representation that the goods are of a
particular standard, quality, grade, style or
model, if they are not;

(iv) a representation that the goods are new, or
unused, if they are not or are reconditioned or
reclaimed, provided that the reasonable use of
goods to enable the seller to service, prepare,
test and deliver the goods for the purpose of sale
shall not be deemed to make the goods used for
the purposes of this subparagraph;

(v) a representation that the goods have been used
to an extent that is materially different from the
fact;

(vi) a representation that the goods or services are
available for a reason that does not exist;

(vii) a representation that the goods or services have
been supplied in accordance with a previous
representation, if they have not;

(viii) a representation that the goods or services or
any part thereof are available to the consumer
when the person making the representation
knows or ought to know they will not be
supplied or that he will be unable to supply the
demand for the goods or services that can
reasonably be expected;

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(ix) a representation that a service, part,
replacement or repair is needed, if it is not;

(x) a representation that a specific price advantage
exists, if it does not;

(xi) a representation that misrepresents the
authority of a salesman, representative,
employee or agent to negotiate the final terms of
the proposed transaction;

(xii) a representation that the proposed transaction
involves or does not involve rights, remedies or
obligations if the representation is false or
misleading;

(xiii) a representation using exaggeration, innuendo
or ambiguity as to a material fact or failing to
state a material fact if such use or failure
deceives or tends to deceive;

(xiv) a representation that misrepresents the purpose
or intent of any solicitation of, or any
communication with, a consumer;

(xv) a representation that disparages the goods or
services of another by the false or misleading
representation of material facts relating to those
goods or services;

(xvi) a representation that a repair or service has
been done or a part has been replaced, if it has
not;

(xvii) a representation that because of some defect in
the consumer's home, the health or safety of the
consumer or his family is endangered if the
particular goods or services are not purchased,
if the defect does not exist or if the goods or
services would not remove the danger;

(xviii) a representation that goods or services are
offered at a discounted or sale price unless they
have been offered at the full or undiscounted
price for a period of at least 28 days preceding
the sale;

(xix) a representation that is false or misleading with
respect to the reason why goods or services are
offered at a discounted or sale price;

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(xx) a representation that goods are made in
Bermuda, if they are not;

(xxi) a representation that goods or services supplied
by him are or are of a kind supplied to or
approved by Her Majesty or any member of the
Royal Family, if they are not;

(xxii) such other representations as may be
prescribed;

(b) an unconscionable consumer representation made in
respect of a particular transaction and, in determining
whether or not a consumer representation is
unconscionable, there may be taken into account that
the person making the representation or his employer or
principal knows or ought to know—

(i) that the consumer is not reasonably able to
protect his interests because of his physical
infirmity, ignorance, illiteracy, inability to
understand the language of an agreement or
similar factors;

(ii) that the price grossly exceeds the price at which
similar goods or services are readily available to
like consumers;

(iii) that the consumer is unable to receive a
substantial benefit from the subject-matter of
the consumer representation;

(iv) that there is no reasonable probability of
payment of the obligation in full by the
consumer;

(v) that the proposed transaction is excessively one-
sided in favour of someone other than the
consumer;

(vi) that the terms or conditions of the proposed
transaction are so adverse to the consumer as to
be inequitable;

(vii) that he is making a misleading statement of
opinion on which the consumer is likely to rely
to his detriment;

(viii) that he is subjecting the consumer to undue
pressure to enter into the transaction;

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(ix) that the transaction is part of a pyramid or
multi-layer marketing scheme and that fact has
not been disclosed to the consumer.

Unfair business practices prohibited
12 (1) No person shall engage in an unfair business practice.

(2) A person who performs any act referred to in section 11
shall be deemed to be engaging in an unfair business practice.

(3) Every person who engages in an unfair business practice is
guilty of an offence and is liable on summary conviction to a fine of
$10,000 or imprisonment for 6 months.

Remedies
13 (1) Any agreement, whether written, oral or implied, entered
into by a consumer after a consumer representation that is an unfair
business practice and that induced the consumer to enter into the
agreement, may, subject to subsection (2), be rescinded by the consumer
and the consumer is entitled to any remedy therefor that is at law
available, including damages.

(2) Where rescission is not possible because—

(a) restitution is no longer possible; or

(b) rescission would deprive a third party of a right in the
subject-matter of the agreement that he has acquired in
good faith and for value,

the consumer is entitled to recover the amount by which the amount
paid under the agreement exceeds the fair value of the goods or services
received under the agreement or damages, or both.

(3) Where the unfair business practice that induced the
consumer to enter into the agreement comes within paragraph 11(b), the
court may award exemplary or punitive damages.

(4) Subject to subsection (5), each person who makes the
consumer representation referred to in subsection (1) is liable jointly and
severally with the person who entered into the agreement with the
consumer for any amount that the consumer is entitled to under
subsections (1), (2) and (3).

(5) Subsection (4) does not apply to a person who, on behalf of
another person, prints, publishes (including publication by electronic
media), distributes, broadcasts or telecasts a representation or an
advertisement that he accepts in good faith for printing, publishing,
distributing, broadcasting or telecasting in the ordinary course of his
business.

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(6) The liability of an assignee of an agreement under
subsection (1) or any right to payment thereunder is limited to the
amount paid to the assignee under the agreement.

(7) A remedy conferred by subsection (1) may be claimed by the
giving of notice of the claim by the consumer in writing to each other
party to the agreement within six months after the agreement is entered
into.

(8) A notice under subsection (7) may be delivered personally or
sent by registered mail addressed to the person to whom delivery is
required to be made, and delivery by registered mail shall be deemed to
have been made at the time of mailing.

(9) This section applies notwithstanding any agreement or
waiver to the contrary.

Order to cease unfair business practice
14 (1) Where the Executive Officer believes on reasonable and
probable grounds that any person is engaging or has engaged in an
unfair business practice, the Executive Officer may order such person to
cease the unfair business practice specified in the order.

(2) Where the Executive Officer proposes to make an order
under subsection (1), he shall serve notice of his proposal on each
person to be named in the order together with written reasons therefor.

(3) A notice under subsection (2) shall inform each person to be
named in the order that he is entitled to a hearing by the Minister if he
mails or delivers within fifteen days after a notice under subsection (2) is
served on him notice in writing requiring a hearing to the Executive
Officer and the Minister and he may so require such a hearing.

(4) Where a person upon whom a notice is served under
subsection (2) does not require a hearing by the Minister in accordance
with subsection (3), the Executive Officer may carry out the proposal
stated in the notice.

(5) Where a person requires a hearing by the Minister in
accordance with subsection (3), the Minister shall appoint a time for and
hold the hearing and may by order direct the Executive Officer to carry
out his proposal or to refrain from carrying out his proposal and to take
such action as the Minister considers the Executive Officer ought to take
in accordance with this Act.

(6) The Minister may attach such terms and conditions to his
order as he considers appropriate to give effect to the purpose of this Act.

(7) The Executive Officer and the person who has required the
hearing and such other persons as the Minister may specify are parties
to proceedings before the Minister.

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Order for immediate compliance
15 (1) Notwithstanding section 14, the Executive Officer may make
an order under section 14(1) to take effect immediately where, in his
opinion, to do so is necessary for the protection of the public and,
subject to subsections (3) and (4), the order takes effect immediately.

(2) Where the Executive Officer makes an order under
subsection (1), he shall serve each person named in the order with a
copy of the order together with written reasons therefor and a notice
containing the information required to be in a notice referred to in
section 14(2) and (3).

(3) Where a person named in the order requires a hearing by
the Minister in accordance with the notice under subsection (2), the
Minister shall appoint a time for and hold the hearing and may confirm
or set aside the order or exercise such other powers as may be exercised
in a proceeding under section 14.

(4) Where a hearing by the Minister is required, the order
expires fifteen days after the giving of the notice requiring the hearing
but, where the hearing is commenced before the expiration of the order,
the Minister may extend the time of expiration until the hearing is
concluded.

(5) The Executive Officer and the person who has required the
hearing and such other persons having a direct interest in the order as
the Minister may specify are parties to proceedings before the Minister
under this section.

(6) An order of the Minister under this section or section 14
takes effect immediately but the Minister may grant a stay if notice of an
appeal under section 16 is served on him.

Appeal from decision of Minister
16 (1) Any party to proceedings before the Minister may appeal
from his decision or order to the Supreme Court in accordance with the
rules of court.

(2) Where any party appeals from a decision of the Minister,
the Minister shall forthwith file in the court the record of the proceedings
before him in which the decision was made, which, together with the
transcript of the evidence if it is not part of the record, shall constitute
the record in the appeal.

(3) An appeal under this section may be made on questions of
law or fact or both and the court may exercise all the powers of the
Minister, and for such purpose the court may substitute its opinion for
that of the Minister, or the court may refer the matter back to the

CONSUMER PROTECTION ACT 1999

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Minister for rehearing, in whole or in part, in accordance with such
directions as the court considers proper.

Assurance of voluntary compliance
17 (1) Any person against whom the Executive Officer proposes to
make an order to comply with section 12 may enter into a written
assurance of voluntary compliance in such form as may be approved by
the Minister undertaking to not engage in the specified unfair business
practices after the date thereof.

(2) Where an assurance of voluntary compliance is accepted by
the Executive Officer, the assurance has and shall be given for all
purposes of this Act the force and effect of an order made by the
Executive Officer.

(3) An assurance of voluntary compliance may include such
undertakings as are acceptable to the Executive Officer and the
Executive Officer may receive a bond and collateral therefor as security
for the reimbursement of consumers and for investigation and other
costs in such amount as is satisfactory to the Executive Officer.

Investigations by order of Minister
18 The Minister may by order appoint a person to make an
investigation into any matter to which this Part applies as may be
specified in the Minister's order and the person appointed shall report
the result of his investigation to the Minister and, for the purposes of this
investigation, the person making it has the powers of a commissioner
under the Commissions of Inquiry Act 1935, which Act applies to such
investigation as if it were an inquiry under that Act.

Offences
19 Every person who—

(a) furnishes false information in an investigation under
this Part;

(b) obstructs a person making an investigation under this
Part;

(c) fails to comply with an order made under this Part or an
assurance of voluntary compliance,

is guilty of an offence and is liable on summary conviction to a fine of
$10,000 or imprisonment for 6 months.

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PART IV
CONSUMER SAFETY

General safety requirement
20 For the purposes of this Part consumer goods fail to comply with
the general safety requirement if they are not reasonably safe having
regard to all the circumstances including—

(a) the manner in which, and purposes for which the goods
are marketed, the use of any trade mark in relation to
the goods and any instructions or warnings which are
given with respect to the keeping, use or consumption of
the goods; and

(b) any standards of safety published by the manufacturer
or other authority in the place of origin either for goods
of a description that applies to the goods in question or
for matters relating to goods of that description.

Offence
21 A person is guilty of an offence if he—

(a) supplies any consumer goods which fail to comply with
the general safety requirement, the safety standards
applicable in the place of origin of the goods, or any
prescribed standard;

(b) offers or agrees to supply any such goods; or

(c) exposes or possesses such goods for supply,

and is liable on summary conviction to a fine of $10,000 or
imprisonment for 6 months.

Safety regulations
22 (1) The Minister may make regulations ("safety regulations")
containing such provision as he considers appropriate for the purpose of
securing that consumer goods are safe and that appropriate information
is, and inappropriate information is not, provided in relation to consumer
goods and in particular—

(a) with respect to the composition or contents, design,
construction, finish or packing of consumer goods or
with respect to other matters relating to consumer
goods;

(b) for requiring consumer goods to conform to a particular
standard or to be approved or of a kind approved by a
particular person and for requiring information to be

CONSUMER PROTECTION ACT 1999

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given, and determining the manner in which it is to be
given, for the purpose of indicating that the consumer
goods conform to that standard or are so approved or of
such a kind;

(c) with respect to standards for consumer goods (which
may be standards set out in the regulations or
standards or parts of standards of which particulars
have been published by any person in Bermuda or
elsewhere) and with respect to the approval by the
Minister of standards or parts of standards of which
particulars have been so published;

(d) with respect to the giving, refusal, alteration and
cancellation of approvals for consumer goods or kinds of
consumer goods, with respect to the conditions and
alteration of the conditions, which may be attached to
and the fees which may be charged for approvals and
with respect to appeals against refusals, alterations and
cancellations of such approvals and against the
conditions and alteration of conditions of such
approvals;

(e) with respect to the testing or inspection of consumer
goods, for determining the manner in which any person
by whom any test or inspection required by the
regulations is to be carried out and for determining the
standards to be applied in carrying out such a test or
inspection;

(f) with respect to the ways of dealing with consumer goods
of which some or all do not satisfy a test prescribed by
the regulations or a standard connected with a
procedure so prescribed;

(g) for requiring a warning or instructions or other
information relating to consumer goods to be marked on
or to accompany the goods or to be given in some other
manner in connection with the goods, and for securing
that inappropriate information is not given in respect of
goods either by means of misleading trade marks or
otherwise;

(h) for prohibiting persons from supplying, or from offering
to supply, agreeing to supply, exposing for supply or
possessing for supply consumer goods which the
Minister considers are not safe and consumer goods in
respect of which requirements of the regulations are not
satisfied;

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(i) for prohibiting persons from supplying, or from offering
to supply, agreeing to supply, exposing for supply or
possessing for supply, goods which are designed to be
used as component parts of other goods and which
would if so used cause the other goods to contravene
requirements of the regulations.

(2) Safety regulations may—

(a) make different provisions for different circumstances or
provision relating only to specified circumstances;

(b) provide for exemptions from any provision of the
regulations;

(c) create offences and provide that a person who commits
an offence against the regulations is liable on summary
conviction to a fine of $5,000 or imprisonment for 6
months;

(d) contain such incidental and supplemental provisions as
the Minister considers appropriate.

(3) Safety regulations made under this section are subject to
the negative resolution procedure.

Orders and notices to prohibit supply of goods or give warning of
danger from goods
23 (1) The Minister may—

(a) make orders ("prohibition orders") prohibiting persons
from supplying, or from offering to supply, agreeing to
supply, exposing for supply or possessing for supply—

(i) any consumer goods which the Minister
considers are not safe and which are described
in the orders; and

(ii) any consumer goods which are designed to be
used as component parts of other consumer
goods and which would if so used cause the
other consumer goods to be consumer goods
described in the orders in pursuance of sub-
paragraph (i);

(b) serve on any person a notice ("prohibition notice")
prohibiting the person, except with the consent of the
Minister and in accordance with the conditions, if any,
on which the consent is given from supplying, or from
offering to supply, agreeing to supply, exposing for
supply or possessing for supply, any consumer goods

CONSUMER PROTECTION ACT 1999

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which the Minister considers are not safe and which are
described in the notice;

(c) serve on any person a notice ("notice to warn") requiring
the person to publish, in a form and manner and on
occasions specified in the notice and at his own expense,
a warning about any consumer goods so specified which
the Minister considers are not safe and which the person
supplies or has supplied.

(2) Part I of the Schedule shall have effect with respect to
prohibition orders, Part II of the Schedule shall have effect with respect
to prohibition notices and Part III of the Schedule shall have effect with
respect to notices to warn; and section 22(2) shall apply to prohibition
orders as it applies to safety regulations.

(3) A person who contravenes a prohibition order, a prohibition
notice or a notice to warn is liable on summary conviction to a fine of
$10,000 or to imprisonment for 6 months.

Suspension notices
24 (1) Where the Minister has reasonable grounds for suspecting
that any safety provision has been contravened in relation to any
consumer goods, he may serve a notice ("a suspension notice")
prohibiting the person on whom it is served, for such period ending not
more than 6 months after the date of the notice as is specified therein,
from supplying the goods, offering to supply then, agreeing to supply
them or exposing them for supply without the consent of the Minister.

(2) A suspension notice shall—

(a) describe the consumer goods in a manner sufficient to
identify them;

(b) set out the grounds on which the Minister suspects that
a safety provision has been contravened in relation to
the consumer goods; and

(c) state that the person on whom the notice is served may
apply under section 25 for an order setting aside the
notice.

(3) A consent of the Minister under subsection (1) may impose
such conditions on the doing of anything for which the consent is
required as the Minister considers appropriate.

(4) Any person who contravenes a suspension notice is guilty of
an offence and is liable on summary conviction to a fine of $10,000 or to
imprisonment for 6 months.

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Application to set aside suspension notice
25 (1) Any person having an interest in any consumer goods in
respect of which a suspension notice is in force may apply to a
magistrate for an order setting aside the notice.

(2) On an application under subsection (1) the magistrate shall
make an order setting aside the suspension notice only if he is satisfied
that there has been no contravention of any safety provision in relation
to the consumer goods.

Power to obtain information
26 (1) If the Minister considers that, for the purpose of deciding
whether to make, vary or revoke safety regulations or a prohibition order
or to serve, vary or revoke a prohibition notice or to serve or revoke a
notice to warn, he requires information which another person is likely to
be able to furnish, the Minister may serve on the other person a notice
requiring the person—

(a) to furnish to the Minister within a period specified in the
notice, such information as is so specified;

(b) to produce such documents as are specified in the notice
at a time and place so specified and to permit a person
appointed by the Minister for the purpose to take copies
of the documents at that time and place.

(2) A person is guilty of an offence if he—

(a) fails, without reasonable cause, to comply with a notice
served on him under subsection (1); or

(b) in purporting to comply with a requirement which by
virtue of subsection (1)(a) is contained in a notice served
on him under that subsection, furnishes information
which he knows is false in a material particular or
recklessly furnishes information which is false in a
material particular.

(3) A person guilty of an offence under subsection (2)—

(a) in the case of an offence under paragraph (a) of that
subsection, is liable on summary conviction to a fine of
$10,000 or to imprisonment for 6 months; and

(b) in the case of an offence under paragraph (b) of that
subsection, is liable on summary conviction to a fine of
$15,000 or to imprisonment for 12 months.

(4) No information obtained by virtue of this section shall be
disclosed except—

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(a) for the purpose of any criminal proceedings or any
investigation with a view to such proceedings;

(b) for the purpose of facilitating the performance by the
Executive Officer of his functions under Part III or for the
purpose of any proceedings under Part III;

(c) for the purpose of enabling the Minister to decide
whether to make, vary or revoke safety regulations or a
prohibition order or whether to serve, vary or revoke a
prohibition notice or to serve or revoke a notice to warn;
or

(d) in a prohibition notice, a notice to warn or a warning
published as required by a notice to warn or in a
warning about goods which is published by the Minister;

but the prohibition on disclosure imposed by this subsection does not
apply to publicised information.

(5) A person who discloses information in contravention of
subsection (4) is liable on summary conviction to a fine of $10,000 or to
imprisonment for 6 months.

PART V
ENFORCEMENT

Inspectors
27 The Minister may designate the Executive Officer and other
persons to be inspectors for the purpose of enforcement of this Act and
the regulations and shall furnish every such person with a certificate of
his designation signed by the Minister and the person so designated.

Power to make test purchases, etc.
28 Any inspector may, for the purposes of enforcement of this Act or
the regulations, make test purchases of goods or otherwise ascertain
whether the safety provisions or any other provisions of this Act or the
regulations or of an order under this Act are being complied with.

Power to enter premises and to seize goods, etc.
29 (1) An inspector who has reasonable cause to believe that an
offence under this Act or the regulations has been committed, may at all
reasonable times and on production, if required, of his credentials enter
any premises other than premises or parts of premises used exclusively
as a dwelling house and while there may—

(a) inspect any goods found;

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(b) require any person carrying on a business on the
premises or employed in or connected with the business
to produce books or documents relating to the business
and to permit the inspector to take copies of or any entry
in such books or documents;

(c) examine any procedure (including any arrangements for
carrying out a test connected with the production of
goods);

(d) seize and detain goods for testing;

(e) seize and detain goods or documents which he believes
may be required as evidence in proceedings under this
Act;

(f) for the purpose of exercising his powers to seize goods
under this section and to the extent that it is reasonably
necessary in order to ensure compliance with any
provision referred to in section 28, require any person
having authority to do so to break open any container,
and if the person does not comply, the inspector may do
so himself.

(2) An inspector who seizes goods or documents in exercise of
his powers under subsection (1) shall, in a written statement specifying
the nature and amount of items seized, inform the person from whom
they are seized.

(3) For the purpose of proceedings taken or transactions made
under this Act, the written statement of an inspector given under
subsection (2) has effect as a receipt for the goods or documents seized.

(4) A magistrate who is satisfied by sworn information in
writing that there are reasonable grounds to believe that—

(a) goods, books or documents which an inspector has
power to inspect are on any premises and that their
inspection is likely to disclose evidence of the
commission of an offence under this Act or the
regulations; or

(b) an offence under this Act or the regulations has been, is
being, or is about to be committed on any premises;

and that—

(c) admission to the premises has been or is likely to be
refused and that notice of intention to apply for a
warrant under this subsection has been given to the
occupier; or

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(d) an application for admission or the giving of the notice
mentioned in paragraph (c) would defeat the object of the
entry or that the premises are unoccupied or that the
occupier is temporarily absent and it might defeat the
object of the entry to await his return,

may by warrant under his hand, which shall continue in force for a
period of one month, authorise any inspector to enter the premises, if
need be by force.

(5) An inspector who enters premises by virtue of this section
may take with him such other persons and equipment as appears
necessary to him, and on leaving premises which he enters by virtue of a
warrant under subsection (4), where either the premises are unoccupied
or the occupier is temporarily absent, he shall affix a notice in a
conspicuous place stating that the premises were entered for the purpose
of this section, and as far as practicable shall leave the premises as
effectively secured against trespassers as he found them.

Offences connected to exercise of powers under section 29
30 A person who—

(a) wilfully obstructs an inspector acting in the exercise of
any power conferred on him by or under section 29;

(b) wilfully fails to comply with any requirement properly
made to him by an inspector under section 29;

(c) without reasonable cause fails to give an inspector
acting under section 29, such assistance or information
as he may reasonably require of the person for the
performance of the inspector's functions under this Part;

(d) in giving information as mentioned in paragraph (c)
makes a statement which he knows to be false;

(e) not being an inspector purports to act as an inspector
under this Act;

(f) discloses to another person, where the disclosure is not
made in the performance of his duty—

(i) information with respect to a manufacturing
process or trade secret obtained by him in
premises which he has entered by virtue of
section 29; or

(ii) information otherwise obtained by him under
this Act;

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is guilty of an offence and is liable on summary conviction to a fine of
$10,000 or imprisonment for 6 months.

Notice of test
31 (1) Where goods seized or purchased by an inspector in
pursuance of this Part are submitted to a test, the inspector shall—

(a) if the goods were seized, inform the person from whom
they were seized of the result of the test;

(b) if the goods were purchased and the test leads to
proceedings for an offence under this Act, inform the
person from whom the goods were purchased of the
result of the test;

and where as a result of the test proceedings for an offence are instituted
against a person, the inspector shall allow the person to have the goods
tested independently if it is reasonably practicable to do so.

(2) The Minister may by order provide for the testing of goods
seized or purchased by an inspector in pursuance of this Act and in
particular may in those orders provide that the test be carried out at the
Ministry's expense in a manner, by a person, and at a laboratory or
testing facility specified in the order.

Compensation
32 (1) Where in the exercise of his powers under section 29 an
inspector seizes and detains any goods, and the owner suffers loss by
reason of the goods being seized or by reason that, during the detention,
the goods are lost or damaged or deteriorate, unless the owner is
convicted of an offence under this Act committed in relation to the goods,
the owner is entitled to compensation for the loss so suffered.

(2) Any disputed question as to the right to or the amount of
any compensation payable under this section shall on the written
application of the owner or of the Attorney-General be determined as
follows—

(a) if the amount of the compensation claimed does not
exceed $10,000, by a magistrate; or

(b) if the amount of the compensation claimed exceeds
$10,000 by a judge of the Supreme Court,

in like manner as if the magistrate or the judge were a single arbitrator
appointed pursuant to the provisions of the Arbitration Act 1986, and
the provisions of that Act shall apply accordingly.

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PART VI
MISCELLANEOUS

Defence of mistake, accident, etc.
33 (1) In any proceedings for an offence under this Act it shall,
subject to subsection (2), be a defence for the person charged to prove—

(a) that the commission of the offence was due to a mistake
or to reliance on information supplied to him or to the
act or default of another person, an accident or some
other cause beyond his control; and

(b) that he took all reasonable precautions and exercised all
due diligence to avoid the commission of such an offence
by himself or any person under his control.

(2) If in any case the defence provided by subsection (1)
involves the allegation that the commission of the offence was due to the
act or default of another person or to reliance on information supplied by
another person, the person charged shall not, without leave of the court,
be entitled to rely on that defence unless, he has served on the
prosecutor a notice in writing giving such information identifying or
assisting in the identification of that other person as was then in his
possession.

Offences by corporations
34 Where an offence under this Act which is committed by a body
corporate is proved to have been committed with the consent or
connivance of, or to be attributable to any neglect on the part of, any
director, manager, secretary or other similar officer of the body
corporate, he, as well as the body corporate, shall be guilty of that
offence and shall be liable to be proceeded against and punished
accordingly.

Regulations
35 (1) The Minister may make regulations generally for any matter
the Minister considers necessary to give effect to this Act and, in
particular—

(a) respecting the marking and display of prices on goods;

(b) regulating the date stamping of food products and the
sale at discounted prices of out of date food products.

(2) Regulations under subsection (1) may create offences and
provide that a person who commits an offence against the regulations is
liable on summary conviction to a fine of $5,000.

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(3) Regulations made under this section are subject to the
negative resolution procedure.

Commencement
36 This Act or any provision thereof comes into operation on such
day as the Minister may appoint by notice published in the Gazette.

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SCHEDULE Section 23(2)

PROHIBITION ORDERS, PROHIBITION NOTICES AND
NOTICES TO WARN

PART I
PROHIBITION ORDERS

1. If the Minister proposes to make a prohibition order ("an order"),
then, subject to paragraph 5, he shall before he makes the order—

(a) publish, in such manner as he thinks fit a notice
stating—

(i) that he proposes to make the order and, in such
terms as he thinks fit, the proposed effect of the
order; and

(ii) that any person may make representations in
writing to the Minister about the proposed order
before a date specified in the notice (which must
be after the expiration of the period of twenty-
eight days beginning with the date of the first
publication of the notice); and

(b) consider any such representations made within that
period.

2. The effect of an order must not be more restrictive, but may be
less restrictive, than the proposed effect of it as stated in the notice.

3. Without prejudice to the power to make a further order and
subject to paragraph 4, an order shall cease to have effect at the
expiration of a period specified in the order which must not be longer
than twelve months beginning with the date on which the order comes
into force.

4. An order may revoke a previous order or may vary it otherwise
than by providing for it to be in force after expiration of twelve months
beginning with the date of the coming into force of the previous order.

5. Paragraphs 1 and 2 shall not apply to an order if the order
contains a statement that in the opinion of the Minister the risk of
danger connected with the consumer goods to which the order relates is
such that the order must be made without delay.

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PART II
PROHIBITION NOTICES

Preliminary

6. In this Part—

"notice" means a prohibition notice;

"notification" means a notification in writing;

"the trader" in relation to a proposed notice or an actual notice
means the person on whom the proposed notice is proposed
to be served or on whom the actual notice has been served.

7. A notice must specify the date on which it comes into force.

General Procedure

8. If the Minister proposes to serve a notice in respect of any
consumer goods, then, subject to paragraph 14, he shall before he serves
the notice serve on the trader a notification—

(a) stating that the Minister proposes to serve on him a
notice in respect of the consumer goods; and

(b) specifying the consumer goods in a manner sufficient to
identify them and stating that, for the reasons set out in
the notification, the Minister considers that the goods
are not safe; and

(c) stating that the trader may make representations, in
writing or both in writing and orally, for the purpose of
satisfying the Minister that the consumer goods are safe
but that if the trader intends to make such
representations he must, before the expiration of the
period of fourteen days beginning with the day when the
notification is served on him, inform the Minister of his
intention indicating whether the representations are to
be in writing only or both in writing and oral.

9. Subject to paragraph 14, the Minister shall not serve a notice on
the trader in respect of any consumer goods before the expiration of the
period of fourteen days beginning with the day on which the Minister
served on him a notification in pursuance of paragraph 8 relating to the
goods; and if within that period the trader informs the Minister as
mentioned in paragraph 8(c), then—

(a) the Minister shall not serve a notice on the trader in
consequence of the notification before the expiration of

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the period of twenty-eight days beginning with the day
aforesaid; and

(b) if during that period the trader makes to the Minister
such written representations as are mentioned in
paragraph 8(c) the Minister shall not serve a notice on
the trader in consequence of the notification before the
Minister has considered the report of a person appointed
in pursuance of paragraph 10 in consequence of the
representations.

10. Where, in consequence of the service on the trader of a
notification in pursuance of paragraph 8, the trader informs the Minister
as mentioned in paragraph 8(c) within the period so mentioned and
makes to the Minister within that period or the fourteen days beginning
with the end of that period such written representations as are so
mentioned, the Minister shall—

(a) appoint a person to consider the written represen-
tations; and

(b) if the trader informed the Minister in pursuance of
paragraph 8(c) that the representations would be both
written and oral, inform the trader of the place and time
(which must not be before the expiration of the fourteen
days and of seven days beginning with the day when the
information is given to the trader) at which the oral
representations may be made to the person appointed;

and the trader or his representative may at that place and time make to
the person appointed oral representations for the purpose of satisfying
the Minister that the consumer goods in question are safe and may call
and examine witnesses in connection with the representations.

11. The person appointed in pursuance of paragraph 10 to consider
written representations with respect to any goods shall, after considering
the representations, any oral representations made in pursuance of that
paragraph with respect to the goods and any statements made by
witnesses in connection with the oral representations, make a report
(including recommendations) to the Minister about the representations
and the proposed notice.

12. If at any time after the Minister has served a notification on the
trader in pursuance of paragraph 8 the Minister decides not to serve a
notice on him in consequence of the notification, the Minister shall
inform him of the decision; and after the Minister informs him of the
decision the notification and anything done in consequence of it in
pursuance of the preceding paragraphs shall be disregarded for the
purposes of those paragraphs.

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13. Where a notification is served on the trader in respect of any
consumer goods in pursuance of paragraph 8, a notice served on him in
consequence of the notification may relate to some only of those goods.

Special Procedure

14. Paragraphs 8 to 13 do not apply to a notice which contains a
statement that the Minister considers that the risk of danger connected
with the consumer goods to which the notice relates is such that the
notice must come into force without delay; and references to a notice in
paragraphs 15 to 18 are to a notice containing such a statement.

15. A notice in respect of any consumer goods must—

(a) state that, for the reasons set out in the notice, the
Minister considers that the goods are not safe; and

(b) state that the trader may, at such time as the trader
thinks fit, make representations in writing to the
Minister for the purpose of satisfying him that the
consumer goods are safe.

16. If representations in writing about a notice are made by the
trader to the Minister, the Minister shall consider the representations
and either revoke the notice and inform the trader that he has revoked it
or—

(a) appoint a person to consider the representations; and

(b) serve on the trader a notification stating that he may
make to the person appointed oral representations for
the purpose mentioned in paragraph 15 and specifying
the place and time (which, except with the agreement of
the trader, must not be before the date of service of the
notification) at which the oral representations may be
made,

and the trader or his representative may at that place and time make to
the person appointed oral representations and may call and examine
witnesses in connection with the representations.

17. The person appointed in pursuance of paragraph 16 to consider
written representations with respect to any consumer goods shall, after
considering the representations, any oral representations made in
pursuance of that paragraph with respect to the goods and any
statements made by witnesses in connection with the oral
representations, make a report including recommendations to the
Minister about the representations and the notice in question.

18. Where the Minister has appointed a person in pursuance of
paragraph 16 to consider any representations relating to a notice then,

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without prejudice to the operation of paragraphs 19 and 20, paragraphs
16 and 17 shall not apply to any subsequent representations in writing
about the notice.

Other Representations

19. If at any time the trader on whom a notice has been served
makes representations in writing to the Minister for the purpose of
satisfying him that the consumer goods to which the notice relates are
safe and, by virtue of paragraph 18, paragraph 16 does not apply to the
representations, the Minister shall consider the representations and
serve on the trader, before the expiration of one month beginning with
the day when the Minister receives the representations, a notification
stating—

(a) that the Minister will revoke the notice or vary it or
declines to do so; or

(b) that the Minister has appointed a person to consider the
representations and that the trader may make to the
person appointed, at a place specified in the notification
and a time so specified (which, except with the
agreement of the trader, must not be before the
expiration of the period of twenty-one days beginning
with the date of service of the notification), oral
representations for the purpose,

and the trader or his representative may at that place and time make to
the person appointed oral representations and may call and examine
witnesses in connection with the representations.

20. The person appointed in pursuance of paragraph 19 to consider
written representations with respect to any consumer goods shall, after
considering the representations, any oral representations made in
pursuance of that paragraph with respect to the goods and any
statements made by witnesses in connection with the oral
representations, make a report including recommendations to the
Minister about the representations and the notice in question.

Miscellaneous

21. The Minister may revoke or vary a notice by serving on the trader
a notification stating that the notice is revoked or, as the case may be, is
varied as specified in the notification; but the Minister shall not have
power to vary a notice so as to make the effect of the notice more
restrictive for the trader.

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22. The Minister shall consider any report made to him in
pursuance of paragraph 17 or 20 and, after considering the report,
inform the trader of his decision with respect to the notice in question.

PART III
NOTICES TO WARN

23. If the Minister proposes to serve on a person a notice to warn in
respect of any consumer goods, the Minister shall, before he serves the
notice, serve on the person a notification in writing—

(a) containing a draft of the notice and stating that the
Minister proposes to serve on the person such a notice
in the form of the draft;

(b) stating that, for the reasons set out in the notification,
the Minister considers that the consumer goods specified
in the draft are not safe; and

(c) stating that the person may make representations, in
writing or both in writing and orally, for the purpose of
satisfying the Minister that the consumer goods are safe
but that if the person intends to make such
representations he must, before the expiration of the
period of fourteen days beginning with the day when the
notification is served on him, inform the Minister of his
intentions indicating whether the representations are to
be in writing only or both in writing and oral.

24. Paragraphs 9 to 13 and 21 shall with the necessary
modifications have effect in relation to a notice to warn as they have
effect in relation to a prohibition notice but as if—

(a) the reference to paragraph 14 in paragraph 9 were
omitted;

(b) for the references to paragraph 8 in paragraphs 9, 10,
12 and 13 there were substituted references to
paragraph 23;

(c) in paragraph 13 for the words from "relate" onwards
there were substituted the words "be less onerous than
the draft of the notice contained in the notification"; and

(d) in paragraph 21 the words "or vary" and the words from
"or, as" onwards were omitted.