Fair Trading Act 1987

This Act may be cited as the Fair Trading Act 1987.

Sections 1 and 2 shall commence on the date of assent to this Act.

Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.

This Act (other than the ACL) binds the Crown in right of the State in so far as the Crown in right of the State carries on a business, whether directly or by an authority of the State.

Nothing in this Act renders the State liable to prosecution for an offence.

Note.

Division 4 of Part 3 provides for the application of the ACL to the Crown.

In this Act, except the ACL—

acquire includes—

in relation to goods—acquire by purchase or exchange or by taking on lease, on hire or on hire-purchase,

in relation to services—accept, and

in relation to an interest in land—acquire by purchase or exchange or by taking on lease, or in any other manner in which an interest in land may be acquired for valuable consideration.

advisory committee means a committee appointed under section 9B.

assisted person means a person granted legal assistance under section 13.

authorised person means a person authorised by the Secretary.

banker has the same meaning as in section 2 (1) of the ACL.

business includes—

a business not carried on for profit, and

a trade or profession.

consumer has the same meaning as in section 3 of the ACL.

consumer contract has the same meaning as in section 2 (1) of the ACL.

consumer goods has the same meaning as in section 2 (1) of the ACL.

dangerous, in relation to goods, means likely to cause death or to cause injury to the body or health of a person, whether the death or injury is likely to be caused directly or indirectly and whether or not because of—

a failure to include with or on the goods any instructions for their use,

the inclusion with or on the goods of instructions for the use of the goods that are inaccurate or inadequate,

a failure of the goods to function in the manner represented by the manufacturer or supplier,

the goods not being of the quality represented by the manufacturer or supplier, or

the necessity for, or possibility of, the use of the goods with other goods.

defective goods action has the same meaning as in section 2 (1) of the ACL.

Department means the Department of Customer Service.

disposal, in relation to an interest in land, means disposal by sale, exchange or lease or by any other method by which an interest in land may be disposed of for valuable consideration.

document has the same meaning as in section 2 (1) of the ACL.

embargo notice means a notice given under section 23D.

employee means—

the Secretary or any other Public Service employee employed in the Department, or

any person engaged by the Secretary (with the approval of the Minister and on such terms as the Minister thinks fit) to assist in the exercise of the Secretary’s functions.

goods has the same meaning as in section 2 (1) of the ACL.

interest, in relation to land, means—

a legal or equitable estate or interest in the land,

a right of occupancy of the land, or of a building or part of a building erected on the land, conferred by shares, or by virtue of a contract to purchase shares, in a corporation that owns the land or the building, or

a right, power or privilege over, or in connection with, the land.

interim ban has the same meaning as in section 2 (1) of the ACL.

investigator means an employee appointed by the Secretary under section 18 as an investigator.

permanent ban has the same meaning as in section 2 (1) of the ACL.

price includes a charge of any description and the price of goods or services acquired by a person (whether or not by purchase) is the amount paid or payable for them or, if such an amount is not specified because acquisition of the goods or services is part only of a transaction for which a total amount is paid or payable, is—

the lowest amount for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier, or

if they could not reasonably have been acquired separately from any supplier—their value at the time of the transaction.

product related service has the same meaning as in section 2 (1) of the ACL.

public authority means a public or local authority constituted by an Act (whether or not a statutory body representing the Crown) or a Public Service agency.

published, in relation to a statement, includes—

inserted in a newspaper or other publication,

publicly exhibited—

in, on, over or under a building, vehicle, aircraft or ship, or in any other place (whether or not a public place and whether on land or water), or

in the air in view of persons who are, or are passing, in or on a street or public place,

contained in a document sent or given to a person or thrown or left upon, or at, premises occupied by a person,

broadcast by radio or television,

reproduced electronically, and

made verbally.

recall notice has the same meaning as in section 2 (1) of the ACL.

regulations means regulations made under section 92.

rely on has the same meaning as in section 2 (1) of the ACL.

safety warning notice means a notice published under section 129 of the ACL.

Secretary means—

the Commissioner for Fair Trading, Department of Customer Service, or

if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department.

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges and facilities that are, or are to be, provided, granted or conferred under—

a contract for or in relation to—

the performance of work (including work of a professional nature), whether with or without the supply of goods,

the provision of gas or electricity or the provision of any other form of energy,

the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction, or

the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,

a contract of insurance,

a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking,

a contract for or in relation to the lending of money,

a site agreement (within the meaning of the Residential (Land Lease) Communities Act 2013), or

a service contract (within the meaning of the Retirement Villages Act 1999),

but does not include the supply of goods or the performance of work under a contract of employment.

small business contract has the same meaning as in section 23 (4) of the ACL.

statement includes a representation of any kind, whether made by means of—

words, maps, plans or drawings, or

pictorial representation or design,

or by any combination of those means.

supplier means a person who, in the course of a business, supplies goods or services.

supply includes (except in Part 6A)—

in relation to goods—

supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase, and

exhibit, expose or have in possession for the purpose of sale, exchange, lease, hire or hire-purchase or for any purpose of manufacture or trade,

in relation to services—provide, grant or render for valuable consideration, and

in relation both to goods and to services—donate for promotional purposes.

the ACL means the Australian Consumer Law (NSW).

this Act includes regulations.

trade or commerce includes any business or professional activity.

Tribunal means the Civil and Administrative Tribunal.

unsafe consumer goods means consumer goods that will or may cause injury to any person or a foreseeable use (or misuse) of which will or may cause injury to any person.

unsafe product related services means product related services of a particular kind supplied in trade or commerce, a result of the supply of which is that—

any consumer goods will or may cause injury to any person, or

a reasonably foreseeable use (including misuse) of any consumer goods will or may cause injury to any person.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Sections 2 (2) (Definitions), 11 (References to acquisition, supply and re-supply) and 13 (Loss or damage to include injury) of the ACL apply to all of the provisions of this Act in the same way as those sections apply to the provisions of the ACL.

(Repealed)

Where a provision of this Act (other than the ACL) is inconsistent with a provision of an Act specified in Schedule 1 or prescribed for the purposes of this subsection, or a provision of an instrument made under an Act so specified or prescribed, the provision of the Act so specified or prescribed, or of the instrument, prevails.

In this Act, a reference to the making of a representation includes a reference to the publishing of a statement.

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

In this Act, a reference to a particular section of this Act does not include a reference to the same section of the ACL.

Note.

For example, a reference to section 66 of this Act does not include a reference to section 66 of the ACL.

Notes included in this Act do not form part of this Act.

Editorial note.

References in this Act to any other Act or legislation administered by the Minister are to be construed in accordance with clause 4 of the Administrative Arrangements (Administration of Acts—Amendment No 4) Order 2015.

This Act is intended to have extraterritorial application in so far as the legislative powers of the State permit.

Without limiting subsection (1), this Act extends to conduct either in or outside the State that—

is in connection with goods or services supplied in the State, or

affects a person in the State, or

results in loss or damage in the State.

The Secretary is, in the exercise of functions as Secretary, subject to the control and direction of the Minister except in relation to the contents of a report or recommendation.

The Secretary may delegate to any person or committee the exercise of any of the functions conferred or imposed on the Secretary by or under the following—

this Act,

(Repealed)

any other Act administered by the Minister,

any other Act prescribed by the regulations for the purposes of this section (or the prescribed provisions of any other prescribed Act),

the regulations under any such Act.

A delegate of the Secretary may sub-delegate a function if authorised in writing to do so by the Secretary.

This section does not apply to the functions of the Secretary under section 79A.

The Secretary may—

advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise,

make available to consumers, and persons dealing with consumers, general information with respect to—

this Act and other legislation administered by the Minister, and

matters affecting the interests of consumers,

receive complaints from persons on matters (including fraudulent or unfair practices) relating to the supply of goods or services, or the acquisition of interests in land, and deal with any such complaint (whether or not under paragraph (d)) in such manner as the Secretary considers to be appropriate,

investigate the matter the subject of a complaint received under paragraph (c) or refer the complaint to a public authority, or any other body, that the Secretary considers to be best able to take action, or provide advice, in relation to the complaint, and

make known, for the guidance of consumers and persons dealing with consumers, the rights and obligations arising under laws relating to the interests of consumers.

The Secretary shall—

keep under critical examination, and from time to time report to the Minister on, the laws in force, and other matters, relating to the interests of consumers, and

report to the Minister on matters relating to the interests of consumers that are referred to the Secretary by the Minister,

and, for those purposes, may conduct research and make investigations.

Where a complaint is received under subsection (1) (c), the Secretary may—

investigate the complaint even if it has been referred to a public authority or to another body, or

refer the complaint to a public authority, or any other body, even if an investigation of the matter has been commenced or completed by the Secretary.

The Secretary is to have regard, in carrying out his or her functions under this Act, to the need for communication, co-operation and co-ordination in relation to relevant co-operative legislative schemes.

(Renumbered as section 17AB)

The Minister may appoint such advisory committees as the Minister considers appropriate for the purpose of advising the Secretary in relation to matters arising under section 9 (2).

An advisory committee may include one or more employees.

An advisory committee has such functions in relation to the provision of advice as the Minister directs.

The Minister may, at any time, do the following—

terminate the appointment of a person as a member of an advisory committee,

dissolve an advisory committee.

A member of an advisory committee—

is entitled to receive such travelling expenses, and

except in the case of an employee, is entitled to receive such fees for attending meetings and transacting business of the committee,

as are fixed by the Minister.

Subject to any directions of the Minister, the procedure of an advisory committee appointed under this section is to be determined by the advisory committee.