Fair Trading Regulations 2009

i Fair Trading Regulations 2009 S.R. No. 86/2009 TABLE OF PROVISIONS Regulation Page 1 Objectives 1 2 Authorising provision 1 3 Commencement 2 4 Revocation 2 5 Definition 2 6 Persons section 27 of the Act does not apply to 2 7 Telephone marketing agreements exempted from Division 2A of Part 4 of the Act 2 8 Telephone marketing agreements exempted from sections 67E and 67H of the Act 4 9 Telephone marketing agreements exempted from section 80 of the Act 4 10 Form of lay-by cancellation form 4 11 Conciliation 5 12 Form of embargo notice 5 13 Infringement notice offences and penalties 5 __________________ SCHEDULES 7 SCHEDULE 1—Revocations 7 SCHEDULE 2—Forms 8 Form 1—Lay-by Cancellation Form 8 Form 2—Embargo Notice 9 SCHEDULE 3—Infringement Notice Offences and Penalties 10 ═══════════════ -- 1 of 12 -- 1 STATUTORY RULES 2009 S.R. No. 86/2009 Fair Trading Act 1999 Fair Trading Regulations 2009 The Governor in Council makes the following Regulations: Dated: 5 August 2009 Responsible Minister: TONY ROBINSON Minister for Consumer Affairs TOBY HALLIGAN Clerk of the Executive Council 1 Objectives The objectives of these Regulations are— (a) to prescribe forms for the purposes of the Fair Trading Act 1999; and (b) to prescribe certain persons and bodies for the purposes of that Act; and (c) to provide for exemptions relating to telephone marketing agreements; and (d) to specify offences in respect of which an infringement notice may be issued and to prescribe infringement penalties; and (e) to provide for any other matters authorised to be prescribed under the Fair Trading Act 1999. 2 Authorising provision These Regulations are made under section 165 of the Fair Trading Act 1999. -- 2 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 2 3 Commencement These Regulations come into operation on 16 August 2009. 4 Revocation The Regulations referred to in Schedule 1 are revoked. 5 Definition In these Regulations, the Act means the Fair Trading Act 1999. 6 Persons section 27 of the Act does not apply to The following persons are prescribed for the purposes of section 27(5)(a)(iv) of the Act— (a) each member of the Victorian Country Press Association Limited (ACN 004 405 761) and each person who is a related body corporate of such a member; (b) each member of the Australasian Religious Press Association Inc. and each person who is a related body corporate of such a member. 7 Telephone marketing agreements exempted from Division 2A of Part 4 of the Act The following classes of telephone marketing agreement are exempt from the provisions of Division 2A of Part 4 of the Act— (a) an agreement for the supply of a financial product, or a managed investment scheme, within the meaning of the Corporations Act; Note The hawking of certain financial products and managed investment schemes is prohibited under the Corporations Act (see sections 992A and 992AA of that Act). r. 3 -- 3 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 3 (b) if an agreement for the supply of goods or services exists between a purchaser and a supplier, an agreement between the purchaser and the supplier for the supply of goods or services that are of the same kind as those supplied under the existing agreement; Examples An example of such an exempted agreement is where the purchaser has joined a scheme (such as a wine society or club) and agrees to allow the supplier subsequently to telephone the purchaser to offer goods or services in connection with the scheme. In that case, the subsequent agreement for the supply of those goods or services is exempt. An example of a telephone marketing agreement that is not for the supply of goods or services that are of the same kind as those supplied under an existing agreement is if a supplier of telecommunications services, who has an existing agreement with a purchaser for the supply of a landline telephone service, telephones the purchaser for the purpose of negotiating an agreement for the supply of a mobile telephone service or an Internet service. In such a case, the subsequent agreement for the supply of those other services is not exempt. (c) if an agreement for the supply of goods or services exists between a purchaser and a supplier, a subsequent agreement between the purchaser and the supplier for the purposes of— (i) maintaining the goods or services provided under the existing agreement; or Example The rectification of a fault in the goods supplied under the existing agreement. r. 7 -- 4 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 4 (ii) making a minor change to the terms of the existing agreement. Example A change to the address to which payments are to be sent under an agreement for the supply of a mobile telephone service. 8 Telephone marketing agreements exempted from sections 67E and 67H of the Act A telephone marketing agreement for the supply of classified advertising is exempt from sections 67E and 67H of the Act if the agreement entitles the purchaser to cancel the agreement at any time until the expiry of the publication deadline by telephoning the supplier or the person acting on behalf of the supplier. 9 Telephone marketing agreements exempted from section 80 of the Act (1) A telephone marketing agreement for services that are supplied to a purchaser on a continuing basis is exempt from section 80 of the Act. (2) Subregulation (1) does not apply to an agreement for the supply of services that are— (a) supplied entirely on a one-off basis; or (b) capable of being wholly supplied during the cooling-off period referred to in section 67H(1) of the Act. Example The carrying out of repairs for a purchaser. (3) A telephone marketing agreement for the supply of classified advertising is exempt from section 80 of the Act. 10 Form of lay-by cancellation form The form for the lay-by cancellation form under section 85(1A) of the Act is Form 1 in Schedule 2. r. 8 -- 5 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 5 11 Conciliation The following persons and bodies are prescribed for the purposes of section 104(2) of the Act— (a) the Ombudsman appointed under section 3 of the Ombudsman Act 1973; (b) the Director, Police Integrity under section 7 of the Police Integrity Act 2008; (c) the Health Services Commissioner established under section 5 of the Health Services (Conciliation and Review) Act 1987; (d) the Legal Services Commissioner appointed under section 6.3.1 of the Legal Profession Act 2004; (e) the Private Health Insurance Ombudsman established under section 238-1 of the Private Health Insurance Act 2007 of the Commonwealth. 12 Form of embargo notice For the purposes of section 126(1) of the Act, the prescribed form of an embargo notice is Form 2 in Schedule 2. 13 Infringement notice offences and penalties (1) For the purposes of section 160A(1) of the Act, an offence against a provision of the Act set out in column 2 of Schedule 3 is specified as an offence in respect of which an infringement notice may be issued. (2) For the purposes of section 160A(1A) of the Act, the prescribed infringement penalty for an offence set out in column 2 of Schedule 3 is— (a) in the case of a natural person, the penalty set out in column 3 of Schedule 3 corresponding to that offence; and r. 11 -- 6 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 6 (b) in the case of a body corporate, the penalty set out in column 4 of Schedule 3 corresponding to that offence. __________________ r. 13 -- 7 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 7 SCHEDULES SCHEDULE 1 Regulation 4 REVOCATIONS S.R. No. Title 103/1999 Fair Trading Regulations 1999 162/2001 Fair Trading (Amendment) Regulations 2001 119/2003 Fair Trading (Amendment) Regulations 2003 36/2004 Fair Trading (Amendment) Regulations 2004 110/2004 Fair Trading (Further Amendment) Regulations 2004 168/2004 Fair Trading (Forms) Regulations 2004 23/2005 Fair Trading (Infringements) Regulations 2005 88/2008 Fair Trading (Amendment) Regulations 2008 __________________ Sch. 1 -- 8 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 8 SCHEDULE 2 FORMS FORM 1 Regulation 10 LAY-BY CANCELLATION FORM Fair Trading Act 1999 Section 85(1A) Details of lay-by (to be completed by the supplier): Name of supplier: Address of supplier: Date of lay-by: Lay-by identification number (if any): Description of goods: Total payments Cancellation fee Refund/amount made to date: (if any): due: $ minus $ = $ Name of purchaser: Signature of purchaser: Date: Return this signed form to the supplier's address given above __________________ Sch. 2 -- 9 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 9 FORM 2 Regulation 12 EMBARGO NOTICE Fair Trading Act 1999 Section 126(1) 1. The thing described below has been embargoed under section 126 of the Fair Trading Act 1999. 2. Section 126(2) provides that a person who knows that an embargo notice relates to a thing and who— (a) sells; or (b) leases; or (c) without the written consent of the inspector who issued the embargo notice, moves; or (d) transfers; or (e) otherwise deals with— the thing or any part of the thing is guilty of an offence and liable to a penalty not exceeding 60 penalty units. 3. Section 126(3) provides that it is a defence to a prosecution for such an offence to prove that the thing or part of the thing was moved for the purpose of protecting and preserving it. 4. Section 126(4) provides that despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of that section is void. 5. Description of embargoed thing— 6. A copy of this notice has been— † served on (insert name of occupier) † affixed to thing described above. Signature of inspector: Name of inspector: Telephone number: Date: Time: __________________ Sch. 2 -- 10 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 10 SCHEDULE 3 Regulation 13 INFRINGEMENT NOTICE OFFENCES AND PENALTIES Column 1 Column 2 Column 3 Column 4 Item No. Infringement notice offence in the Act Prescribed infringement penalty for natural person Prescribed infringement penalty for body corporate 1 section 29(1) 6 penalty units 20 penalty units 2 section 29(4) 6 penalty units 20 penalty units 3 section 32M(1) 6 penalty units 20 penalty units 4 section 33(1) 10 penalty units 60 penalty units 5 section 33(2) 10 penalty units 60 penalty units 6 section 38 10 penalty units 60 penalty units 7 section 44 10 penalty units 60 penalty units 8 section 53 10 penalty units 60 penalty units 9 section 62(1) 8 penalty units 30 penalty units 10 section 67D(7) 6 penalty units 20 penalty units 11 section 67F(1) 8 penalty units 30 penalty units 12 section 70(1) (except with respect to the requirements in section 69(3)) 8 penalty units 30 penalty units 13 section 79 8 penalty units 30 penalty units 14 section 80 8 penalty units 30 penalty units 15 section 81(3) 8 penalty units 30 penalty units 16 section 83(1) 6 penalty units 20 penalty units 17 section 84 6 penalty units 20 penalty units 18 section 89(1) 6 penalty units 20 penalty units 19 section 161A(2) 6 penalty units 20 penalty units Sch. 3 -- 11 of 12 -- S.R. No. 86/2009 Fair Trading Regulations 2009 11 Column 1 Column 2 Column 3 Column 4 Item No. Infringement notice offence in the Act Prescribed infringement penalty for natural person Prescribed infringement penalty for body corporate 20 section 161A(3) 6 penalty units 20 penalty units 21 section 161A(4) 6 penalty units 20 penalty units 22 section 161A(6) 6 penalty units 20 penalty units ═══════════════ Sch. 3 -- 12 of 12 --