Tourism Services Act 2003

This Act may be cited as the Tourism Services Act 2003.

This Act commences on a day to be fixed by proclamation.

This Act binds all persons including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

Subsection (1) does not make the State, the Commonwealth or another State liable to be prosecuted for an offence or proceeded against for a relevant contravention.

The main purpose of this Act is to provide for fair trading in the tourism services industry by—

establishing a registration system for inbound tour operators; and

providing for codes of conduct for inbound tour operators and tour guides including the setting of minimum standards for—

carrying on the business of an inbound tour operator; or

tour guides; and

prohibiting unconscionable conduct by inbound tour operators and tour guides; and

promoting sound business practices by inbound tour operators and tour guides.

This Act does not apply to a person to the extent the person merely provides a travel package, or guiding services for tourists—

on a not for profit basis; or

for a community purpose if all net proceeds from the package or services are applied solely to furthering the community purpose.

In this section—community purpose means—

a benevolent or philanthropic purpose, including, for example, the promotion of art, charity, culture, education, medicine, religion or science; or

a sporting or recreational purpose.

not for profit basis, for providing a travel package or guiding services, means the provision of the package or service—

does not have a significant commercial purpose or character; and

does not primarily seek to make a profit for anyone.

This Act does not limit any other law.

Example—The Criminal Code, sections 12 to 14 include some of the provisions that apply the criminal law of Queensland to particular acts or omissions occurring outside Queensland.

The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading.

Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act.

In this section—inspector means a person who holds office under the FTI Act as an inspector for this Act.

Note—See also the modifying provisions for this Act stated in the FTI Act, section 9.

The dictionary in schedule 2 defines particular words used in this Act.

An associated person of an applicant for registration or renewal of registration is a person who is not the applicant but nevertheless is, or would be if the registration were granted or renewed, in effective control of the applicant’s business.

An associated person of a registrant is a person who is not the registrant but nevertheless is in effective control of the registrant’s business.

A person who is in effective control of a business includes a person who—

is regularly or usually in charge of the business; or

regularly directs staff of the business in their duties; or

is in a position to control or substantially influence the business.

If an applicant for registration or renewal of registration, or a registrant, is a corporation, each executive officer of the corporation is taken to be an associated person of the applicant or registrant.

An inbound tour operator is a person who alone or with others—

carries on a business of selling to any of the following entities who are overseas entities, for an inclusive price, travel packages that include persons visiting, or travelling in, Queensland—

wholesalers of travel packages;

retailers of travel packages;

corporate buyers of travel packages, including, for example, an overseas corporation that buys travel packages for its employees; or

holds himself, herself or itself out in any way as carrying on a business mentioned in paragraph (a); or

is entitled to share in the income of a business mentioned in paragraph (a).

For subsection (1), it is immaterial whether or not the person—

has a place of business in Queensland; or

directly or indirectly provides other tourism services to persons who use a travel package of the inbound tour operator.

A person mentioned in subsection (1)(a), (b) or (c) is taken to carry on the business of an inbound tour operator.

Despite subsections (1)(c) and (3), a person is not an inbound tour operator, and is not taken to carry on the business of an inbound tour operator, only because the person is entitled to share, as a shareholder, in the income of the business of an inbound tour operator that is a corporation.

A tour guide is an individual who, for reward, personally supplies guiding services to tourists.

For subsection (1), an individual supplies guiding services for reward if the individual receives a payment or other benefit for supplying the services, regardless of—

who makes the payment or provides the other benefit; or

where the payment is made or the other benefit is provided.

Example of benefit other than money—provision of accommodation, flights or food

Also, for subsection (1), an individual is taken to supply guiding services for reward if he or she supplies the services as work experience, regardless of whether or not he or she is, or has an expectation he or she will be, later paid for supplying guiding services.

Further, for subsection (1), an individual supplies guiding services whether the individual supplies the services for the whole, or only part, of the time the tourists are in Queensland.

A person must not carry on the business of an inbound tour operator unless the person is a registrant whose registration is not suspended.Maximum penalty—200 penalty units.

It is a defence to an offence against subsection (1) for the person to prove the person is an exempt person.

Note—The provisions of this Act about unconscionable conduct by inbound tour operators apply to all inbound tour operators whether or not they are exempt persons under this section.

A person is an exempt person if—

the person carries on the business of an inbound tour operator; and

also carries on a business of selling to persons in Australia travel packages that include persons visiting or travelling in Queensland; and

either—

the person has carried on the business of an inbound tour operator for 12 months immediately preceding the date of the alleged offence and the percentage of travel packages sold by the person in carrying on that business in that period is less than 20% of the total number of travel packages sold by the person in that period in carrying on business as mentioned in paragraphs (a) and (b); or

the person has not carried on the business of an inbound tour operator for 12 months immediately preceding the date of the alleged offence and, having regard to the business already carried on, and the business likely to be carried on, by the person in the 12 month period starting when the person started to carry on the business of an inbound tour operator, it is likely that the percentage of travel packages sold by the person in carrying on the business of an inbound tour operator in that 12 month period will be less than 20% of the total number of travel packages likely to be sold by the person in that period in carrying on business as mentioned in paragraphs (a) and (b).

Examples for subsection (3)(c)(i)—Example 1Over the past 12 months X sells 10 travel packages to a retailer of travel packages who is an overseas entity and sells 90 travel packages to an inbound tour operator in Australia. X complies with subsection (3)(c)(i) because only 10% of the total number of travel packages sold by X were sold in carrying on the business of an inbound tour operator.Example 2Over the past 12 months Y sells 80 travel packages to a wholesaler of travel packages who is an overseas entity and sells 20 travel packages to an inbound tour operator in Australia. Y does not comply with subsection (3)(c)(i) because 80% of the total number of travel packages sold by Y were sold in carrying on the business of an inbound tour operator.Example for subsection (3)(c)(ii)—Z begins selling travel packages 3 months before the date of the alleged offence. Z advertises the packages in a way that is directed primarily at entities in Australia.In that 3 month period Z sells 40 travel packages to entities within Australia and 5 packages to a retailer of travel packages who is an overseas entity. The 5 packages were sold on the first day of that period.Z may be able to establish that, in the 12 months starting when Z commenced selling travel packages it is likely that the number of travel packages to be sold by Z in carrying on the business of an inbound tour operator will be less than 20% of the total number of travel packages likely to be sold by Z.