Fair Trading Act 1987

This

Act may be cited as the Fair

Trading Act 1987.

In this Act, unless the contrary intention appears—

application law means—

a law of a participating jurisdiction that applies the Australian

Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

any regulations or other legislative instrument made under a law described in paragraph (a);

or

the

Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications;

Australian

Consumer Law means (according to the context)—

the

Australian Consumer Law text; or

the

Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications;

Australian

Consumer Law (SA)—see section 14(1)(b);

Australian

Consumer Law text means the text described in section 13;

authorised officer means a person who is an authorised officer under Part

7 Division 1A;

Commissioner for Consumer Affairs means the person holding or acting in the office of Commissioner for

Consumer Affairs;

Competition and Consumer Act means the Competition and Consumer Act 2010 of the Commonwealth;

consumer affairs authority means—

the

Commissioner for Consumer Affairs; or

a person or authority that has, under a law of another jurisdiction, powers and functions similar to those of the Commissioner for

Consumer Affairs;

contravene includes fail to comply;

District

Court means the Administrative and Disciplinary Division of the District

Court;

instrument means any document whatever, including the following:

an

Act or an instrument made under an Act;

a law of this jurisdiction or an instrument made under such a law;

an award or other industrial determination or order, or an industrial agreement;

any other order (whether executive, judicial or otherwise);

a notice, certificate or licence;

an agreement;

an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;

an indictment, presentment, summons or writ;

any other pleading in, or process issued in connection with, a legal or other proceeding;

Intergovernmental

Agreement means the Intergovernmental Agreement for the Australian Consumer

Law made on 2 July 2009 between the Commonwealth, the

State of New South Wales, the State of Victoria, the State of

Queensland, the State of Western Australia, the State of South

Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being;

involved—a person is involved, in a contravention of a provision of this Act or in conduct that constitutes such a contravention, if the person—

has aided, abetted, counselled or procured the contravention; or

has induced, whether by threats or promises or otherwise, the contravention; or

has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

has conspired with others to effect the contravention;

jurisdiction means a State or the Commonwealth;

law, in relation to a Territory, means a law of, or in force in, that

Territory;

Magistrates

Court means the Civil (Consumer and Business) Division of the Magistrates

Court;

modifications includes additions, omissions and substitutions;

participating jurisdiction means a jurisdiction that is a party to the Intergovernmental

Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications;

related

Act means an Act or a provision of an Act—

of which the Commissioner for Consumer Affairs or the Small Business

Commission is stated, in that Act, to have the administration; or

that is prescribed by the regulations to be a related Act;

Small

Business Commission means the Small Business Commission established by section 3A of the Small

Business Commission Act 2011;

Small

Business Commissioner means the person holding or acting in the office of Small Business

Commissioner;

State includes a Territory;

Territory means the Australian Capital Territory or the Northern Territory of

Australia;

this jurisdiction means South Australia;

trader means a person who in the course of a business—

supplies, or offers to supply, goods or services; or

sells or lets, or offers to sell or let, premises;

trading debt means a debt owed to a trader.

A reference in this Act to the supply of goods or services extends to the supply of both goods and services.

The regulations may exclude a person, or a class of persons, from the ambit of the definition of consumer for the purposes of this Act or a specified provision of this Act (other than the Australian Consumer Law (SA)).

Terms used in this Act and also in the Australian Consumer Law (SA) have, unless the contrary intention appears, the same meanings in this Act as they have in that Law.

For the purposes of this Act—

a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and

that corresponding law is taken to be the Australian Consumer Law, or the

Australian Consumer Law text, applying as a law of that jurisdiction.

This

Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

This

Act is intended to have extraterritorial application insofar 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.

Subject to this section, the Commissioner for Consumer Affairs is responsible for the administration of this Act (including the

Australian Consumer Law (SA)).

The

Small Business Commission is responsible for the administration of—

the

Australian Consumer Law (SA) to the extent specified by the

Minister by notice in the Gazette made on the recommendation of the

Minister responsible for the administration of the Small

Business Commission Act 2011;

and

Part

3A in relation to an industry code or provisions of an industry code if the regulations prescribing the code or provisions for the purposes of that Part declare that the Commission is to have that responsibility; and

Part

3B (other than section 28K).

However, the Small Business Commission may only be assigned responsibility for administration of the Australian Consumer Law (SA) or

Part 3A in relation to an industry code or provisions of an industry code insofar as the Law, code or provisions apply to persons who acquire or propose to acquire goods or services for the purpose of trade or commerce or regulate the conduct of traders towards other traders.

To the extent that the Commissioner for Consumer Affairs is responsible for the administration of this Act, the Commissioner is subject to direction by the Minister.

To the extent that the Small Business Commission is responsible for the administration of this Act, the Commission is subject to direction by the Minister responsible for the administration of the Small

Business Commission Act 2011 in accordance with section 6 of that Act.

There will be a Commissioner for Consumer Affairs.

The

Commissioner will be a person employed in the Public Service of the

State.

The functions of the Commissioner for Consumer Affairs are—

to conduct research into matters concerning the interests of consumers generally or a particular class of consumers; and

to conduct consumer education programmes and to publish reports and disseminate information on matters concerning the interests of consumers; and

to give advice to consumers in relation to their rights and obligations under this Act or any other law, or in relation to transactions entered into by them as consumers; and

to attempt to resolve by conciliation disputes between consumers and traders; and

to monitor business activities (to which this Act and the related Acts apply) that affect consumers and investigate practices that may adversely affect the interests of consumers generally or a particular class of consumers; and

to encourage trade, industry and professional associations to develop, disseminate to their members and enforce codes of practice designed to promote fair trading and to safeguard the interests of consumers;

and

to prepare and disseminate guidelines to traders in relation to their obligations under this Act and related Acts; and

to enforce the requirements of this Act and related Acts by the prosecution of offences and other appropriate action; and

to license and register traders under other Acts; and

to make reports to the Minister on matters referred to the Commissioner by the Minister and on the exercise of the functions of the

Commissioner; and

any other functions conferred on the Commissioner by or under this or any other Act.

The

Commissioner for Consumer Affairs must not attempt to resolve a dispute between a consumer and trader by conciliation except—

at the request or with the consent of the consumer; or

at the request of a court, board or tribunal in which proceedings have been taken in relation to the dispute.

The

Commissioner may call voluntary or compulsory conferences of the parties to the dispute for the purpose of attempting to resolve the dispute by agreement.

If—

the

Commissioner is requested to resolve a dispute between a consumer and trader by conciliation; and

the consumer, without reasonable excuse, fails to attend a conference called for that purpose when asked to do so by the Commissioner, the

Commissioner may refuse to take any further action in relation to the dispute.

A trader who is asked by the Commissioner to attend a conference under this section must attend the conference if the Commissioner indicates in the request that attendance is compulsory.

Maximum penalty: $50 000.

Expiation fee: $5 000.

A conciliation conference may, with the approval of the Commissioner, be conducted by telephone or other electronic means (and a person who participates in a conference by such means will, for the purposes of this section, be taken to have attended the conference).

The following provisions govern representation in conciliation proceedings:

representation of a party by a lawyer will not be permitted unless—

another party to the dispute is a lawyer; or

each of the parties to the dispute agrees; or

the

Commissioner is of the opinion that the party would be unfairly disadvantaged if not represented by a lawyer;

if a party to the dispute is a body corporate, the Commissioner must, if the party seeks to be represented by an officer or employee who is not a lawyer, permit such representation;

the

Commissioner may permit a party to the dispute to be assisted by a person who is not a lawyer but only if that person is not acting for fee or reward.

If an agreement that is reached as a result of conciliation is recorded in a written instrument and signed by the Commissioner and the parties to the agreement—

a copy of the instrument must be given to each party; and

in the event that a party to the agreement fails to carry out the party's obligations under the agreement—the Commissioner or the other party may apply to the Magistrates Court for an order enforcing the terms of the agreement.

Evidence of anything said or done in the course of conciliation proceedings under this section is only admissible in subsequent proceedings by consent of the Commissioner and all parties to the proceedings.

An application to the Magistrates Court under subsection (7)(b) is a minor statutory proceeding for the purposes of the Magistrates

Court Act 1991.

In this section—

minor offence means an offence where the value of the goods or services the subject of the dispute is not more than $1 000 or, if some other amount is prescribed by the regulations, that amount.

The

Commissioner for Consumer Affairs may, in the interests of consumers, co-operate with public or private bodies or persons within or outside the State.

The

Commissioner for Consumer Affairs may delegate to a person employed in the Public Service of the State or, with the Minister's consent, to a person not so employed any of the Commissioner's powers under this Act or a related Act.

The

Minister may delegate any of the Minister's powers under this Act.

A delegation under this section—

must be in writing; and

may be made subject to such conditions as the delegator thinks fit; and

if made to the holder of a specified office or position, empowers any person for the time being holding or acting in that office or position to exercise the delegated powers; and

is revocable at will; and

does not prevent the delegator from acting personally in any matter.

The

Commissioner for Consumer Affairs must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act by the Commissioner during the year ended on the preceding

30 June.

The

Minister must cause a copy of the report to be laid before each

House of Parliament within 14 sitting days of that House after receiving the report.

The

Australian Consumer Law text consists of—

Schedule 2 of the Competition and Consumer Act 2010 of the Commonwealth; and

the regulations under section 139G of that Act.