Consumer Affairs Act 1970 (Qld)

370 Queftts12utbf ANNO NONODECIMO ELIZABETHAE SECUNDAE REGINAE No. 27 of 1970 An Act to Constitute a Consumer Affairs Council and to provide for its functions and powers and the conduct of its affairs; to provide for the establishment of a Consumer Affairs Bureau and the appointment of a Commissioner for Consumer Affairs; to provide with respect to the description and advertising of goods, and for other purposes [ASSENTED TO 14TH DECEMBER, 1970] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Consumer Affairs Act 1970. 2. Commencement of Act. The provisions of this Act other than of sections 1 and 2 shall commence on a date appointed by the Governor in Council by Proclamation published in the Gazette.

Consumer Affairs Act 1970, No. 27 371 3. Division of Act. This Act is divided as follows:- PART I-PRELIMINARY (ss. 1-4); PART 11-CONSUMER AFFAIRS AUTHORITIES (ss. 5-23); Division 1-Consumer Affairs Council; Division 2-Consumer Affairs Bureau; PART III-TRADE PRACTICES (ss. 24-36); Division 1-False Trade Descriptions; Division 2-False Advertising; Division 3-Misrepresentation; PART IV-PROVISIONS FOR SAFETY OF CONSUMERS (ss. 37-39); PART V-GENERAL PROVISIONS (ss. 40-51). 4. Definitions . (1) In this Act save where a contrary intention appears- " Australia " includes any territory under the authority of the Commonwealth of Australia; " Bureau " means the Consumer Affairs Bureau established under this Act; " Commissioner " means the Commissioner for Consumer Affairs appointed for the purposes of this Act: The term includes any person who at the material time performs the duties of the Commissioner; " component part " includes an accessory; " consumer " means a person who buys or hires goods otherwise than for re-sale or letting on hire or in the course of a trade or business carried on by him or for whom services are supplied for fee or reward otherwise than in the course of a trade or business carried on by that person; " Council " means the Consumer Affairs Council constituted under this Act; " credit-sale agreement " means an agreement for the sale of goods under which the whole or part of the purchase price is payable by instalments; false trade description " means a trade description that by reason of anything contained therein or omitted therefrom is false or likely to mislead in a material respect as regards the goods to which it is appended: The term includes every alteration of a trade description, whether by way of addition, effacement or otherwise, that makes the description false or likely to mislead in a material respect; " goods " includes everything that is the subject of trade or manufacture or merchandise; " hire-purchase agreement " means a letting of goods with an option to purchase; " inspector " means the Commissioner and an inspector appointed for the purposes of this Act and an inspector within the meaning of the Factories and Shops Act 1960-1968 or The Weights and Measures Acts 1951 to 1967 and an inspector or officer appointed for the purposes of The Profiteering Prevention Acts, 1948 to 1959; " label " includes any band or ticket;

372 Consumer Affairs Act 1970, No. 27 tf Minister " means the Minister for Labour and Tourism or other Minister of the Crown for the time being charged with the administration of this Act: The term includes any person who at the material time is performing the duties of the Minister; 16 sell " includes offer or attempt to sell, supply or receive for sale, have in possession for sale, exhibit or expose for sale, send, forward or deliver for sale or on sale, cause or suffer or permit to be sold as so defined, or exhibit or expose or have in possession for any purpose of advertisement or trade or gain: The term includes let under a hire-purchase agreement or on hire or have in possession for the purpose of such a letting; LL trade description " means, in relation to goods, any description statement, indication, or suggestion, direct or indirect, as to-- (a) the nature, number, quantity, quality, purity, class, grade, measure, gauge, size or weight of the goods; (b) fitness for a purpose, strength, performance, behaviour or accuracy; (c) the State, country, or place in or at which the goods or any portions or constituents thereof were made or produced; (d) the manufacturer or producer of the goods or the person by whom the goods were selected, packed, graded, or in any way prepared for market; (e) the mode of manufacturing, producing, selecting, packing, grading, or otherwise preparing the goods; (f) the material or ingredients of which the goods are composed or from which they are derived; or (g) the goods being the subject of an existing patent, privilege, or copyright: The term includes the use of any figure, word, trade name, trade style, or mark that, according to the custom of the trade, is commonly taken to be an indication of any of the above matters. (2) A derivative of a term to which a meaning is assigned by this section shall have, when used in this Act, a corresponding meaning. PART 11-CONSUMER AFFAIRS AUTHORITIES Division 1-Consumer Affairs Council 5. Constitution of Council. (1) There shall be a Consumer Affairs Council comprised of twelve members appointed by the Governor in Council by notification published in the Gazette. (2) Of the members of the Council- (a) one shall be a member of the Department of Economics of' the University of Queensland; (b) one shall be a person whose name is enrolled in Queensland as a barrister - at-law or a solicitor; (c) one shall be a person registered in Queensland as a medical practitioner;

Consumer Affairs Act 1970, No. 27 373 (d) one shall be or have been engaged in primary production; (e) one shall be or have been engaged in the manufacture of goods; (f) one shall be or have been engaged in selling goods by retail; (g) one shall be engaged in the business of advertising and promotion of sales of goods; (h) three shall be persons appointed as representative of consumers of whom one shall be male and two shall be female; (i) two shall be members of an industrial union or industrial unions of employees. 6. Functions of Council . (1) The Council may and, if required by the Minister to do so, shall- (a) make such recommendations to the Minister as it considers necessary or desirable in the interests of consumers; (b) advise the Minister on such matters affecting the interests of consumers as he refers to it; (c) make recommendations to the Minister for the establishment and maintenance of means whereby matters that affect the interests of consumers and of persons engaged in the production, manufacture, preparation or supply of goods or in commerce or in the provision of services may receive adequate consideration and whereby information concerning such matters and considerations may be disseminated at large. (2) For the purpose of performing its functions the Council may co-operate or affiliate with any person or any other organization. 7. Office of chairman and deputy - chairman . (1) By the notification of appointment of the whole number of members of the Council the Governor in Council shall designate one of the appointees to be chairman of the Council. Unless he sooner resigns the office the member so designated shall be chairman for so long as he continues to be a member of the Council during his term of appointment as a member created by such appointment. (2) As soon as practicable after each constitution of the Council the members of the Council shall elect from amongst their number a person to be deputy-chairman of the Council. Unless he sooner resigns the office or is designated chairman the member so elected shall be deputy-chairman for so long as he continues to be a member of the Council during his term of appointment as a member existing at the date of such election. (3) The chairman or deputy-chairman may resign his office as such by writing under his hand addressed to and delivered to the Minister. 8. Term of appointment as member . An appointment to membership of the Council shall be for a term of three years save where the appointment is to a casual vacancy therein. A member of the Council shall be eligible for re-appointment.

374 Consumer Affairs Act 1970, No. 27 9. Vacating office of member of Council . (1) A member of the Council shall be deemed to have vacated his office if he- (a) dies or suffers mental illness; (b) resigns his office by writing under his hand addressed to and delivered to the Minister; (c) is absent from three consecutive meetings of the Council (an alternative member not having been appointed under this Act to replace him) and is not excused by the Council for his absence, either in advance or at its meeting next following his third absence; (d) is removed from office by the Governor in Council; (e) ceases to have the qualification required by this Act to secure his appointment to the Council. (2) The Governor in Council may, for any cause that appears to him to be sufficient, remove any member of the Council from his office as such a member. 10. Alternative members . (I) The Governor in Council may, by notification published in the Gazette, appoint any person having a like qualification for membership of the Council as the member he is intended to replace to act in the place of any member of the Council who is or is likely to be prevented by illness or absence from performing his duty as a member. (2) A person appointed pursuant to the preceding subsection is an alternative member of the Council and when acting in the place of a member shall be deemed to be a member of the Council but shall not, by reason of his being or acting as an alternative member, be chairman or deputy-chairman of the Council. 11. Casual vacancies . (1) When a vacancy occurs in the office of a member of the Council before the expiration of his term of appointment the Governor in Council shall, by notification published in the Gazette, appoint thereto a person having a like qualification. for membership of the Council to that of his predecessor in the office. Unless he sooner vacates his office as prescribed by this Act, a person appointed to fill such a casual vacancy shall hold office until the time when his predecessor's term of appointment would have expired. (2) When a vacancy occurs in the office of chairman of the Council before the expiration of the terms of appointment of the existing members of the Council the Governor in Council shall, by notification published in the Gazette, designate another member of the Council to be chairman. Unless he sooner resigns the office, the person so designated shall he chai°man for so long as he continues to be a member of the Council during his term of appointment as a member existing at the date of such designation. (3) When a vacancy occurs in the office of deputy-chairman of the Council before the expiration of the terms of appointment of the existing members of the Council the members of the Council shall, as soon as practicable, elect from amongst their number a person to be deputy- chairman.

Consumer Affairs Act 1970, No. 27 375 Unless he sooner resigns the office or is designated chairman of the Council, the person so elected shall be deputy-chairman for so long as he continues to be a member of the Council during his term of appointment as a member existing at the date of such election. 12. Presiding at meetings . The chairman of the Council or, if he is not present, the deputy-chairman of the Council shall preside at all meetings of the Council. Should both the chairman and deputy-chairman be absent from a meeting of the Council the members present at that meeting shall elect a member from amongst those present to preside at the meeting during the absence of both the chairman and deputy-chairman and the person so elected has, during such absence, all the powers of the chairman. 13. Meetings of Council . (1) The Council shall meet at such times and places and conduct its business in such manner as prescribed or, in so far as not prescribed, as it determines from time to time. (2) Any eight members of the Council shall be a quorum for the purposes of a meeting of the Council and shall be competent to transact the business of the Council and to perform the functions of the Council under this Act. Any matter before a meeting of the Council shall be determined by vote of the majority of the members of the Council (being a quorum) present at the meeting and in the event of an equality of votes upon any matter the person who presides at the meeting at the time of the taking of the vote shall have a second or casting vote. (3) A member of the Council who, being present at a meeting and entitled to vote on a matter, abstains from voting on that matter shall be taken to have voted in the negative. 14. Validity of proceedings . No act or proceeding of the Council shall be invalidated or prejudiced by reason of the fact that at the time when such act or proceeding was done or taken there was a vacancy in the office of any member or there was a defect in the appointment of any member or any person not qualified for membership of the Council acted as a member. 15. Fees of members of Council . The members of the Council shall be paid fees for attendance at meetings of the Council at rates to be prescribed. In addition to any fee to which he is entitled under the preceding paragraph of this section, any member of the Council who for the purposes of this Act is required to travel away from the city, town or place where he usually resides shall be paid travelling and sustenance allowances at rates to be prescribed. 16. Annual report . The chairman of the Council shall submit to the Minister annually, for presentation to the Legislative Assembly and tabling therein, a report on the activities of the Council for the year covered by the report.

376 Consumer Affairs Act 1970, No. 27 Division 2-Consumer Affairs Bureau 17. Commissioner for Consumer Affairs . Subject to the PublicService Act1922-1968, the Governor in Council may appoint, under and in accordance with that Act, a Commissioner for Consumer Affairs and such other officers as the Governor in Council considers necessary to assist the Commissioner. A person appointed to the office of Commissioner for Consumer Affairs may hold that office in conjunction with any other office held by him in the Public Service of Queensland. 18. Consumer Affairs Bureau . There shall be established in the charge of the Minister a Consumer Affairs Bureau comprised of the Commissioner for Consumer Affairs and the other officers appointed to assist him. The Bureau shall perform its functions under the direction and control of the Commissioner. 19. Functions of Bureau . (1) The functions of the Bureau shall be---- (a) to promote the interests of consumers and to assist them to a greater awareness in relation to their assessment and user of goods and. services; (b) to collect, collate and disseminate information in respect of matters :effecting the interests of consumers; (c) to receive complaints from consumers concerning matters touching their interests as consumers, to consider and, if the Commissioner deems it warranted, to investigate such complaints received and to take such action in respect of such complaints as seems proper to the Commissioner; (d) to receive complaints of fraudulent or deceptive practices in relation to matters which affect or are likely to affect the interests of consumers and to take such action in respect of such cases as seems proper to the Commissioner; (e) to advise and assist consumers who seek from the Bureau information or guidance on matters affecting their interests as consumers; (f) to arrange for investigations on behalf of the Council; (g) to arrange for the collection, collation and furnishing to the Council of data to assist the Council in the performance of its functions; (h) to encourage and undertake the dissemination of information concerning consumer affairs to producers, manufacturers and suppliers of goods or services. (2) No provision of this section shall be construed to require the Commissioner or any officer of the Bureau to give or hold. himself out as ready or competent to give to any consumer advice touching the rights and liabilities in law of the consumer concerning any matter, or aid in the enforcement of such rights. 20. Power of Commissioner to obtain information . Commissioner may require any person- (a) to furnish to him such information as he requires; (b) to answer any question put to that person. (1) The

Consumer Affairs Act 1970, No. 27 377 (2) The Commissioner may require that the information be furnished or the question be answered- (a) orally or in writing; (b) at a place specified by him; (c) on oath (the Commissioner being hereby empowered for this purpose to administer an oath). (3) A person shall not- (a) fail to furnish the information or to answer the question as required; (b) furnish information or make answer that is false in any particular. (4) A person shall not be entitled to refuse to furnish information or to answer any question as required on the ground only that the information or answer may tend to incriminate him or render him liable to any penalty. A person shall not be taken to have committed an offence against this Act by reason of a contravention of paragraph (a) of subsection (3) of this section unless, prior to the contravention, he was warned by the Commissioner or other person requiring the information or answer that he is by this Act obliged to furnish information required of him or, as the case may be, answer questions asked of him under this Act. (5) Save as is provided in this subsection, an answer given by any person in consequence of a warning referred to in the preceding subsection shall not be admissible in evidence in any proceeding taken against him civilly or as for an offence, other than a proceeding in respect of a contravention of paragraph (b) of subsection (3) of this section. An answer made by any person as to his name, address or ownership of any business shall be admissible in evidence in any proceeding taken against him under this Act. (6) A reference to the Commissioner in this section shall be construed to include reference to a person authorized in writing by him to seek information from or to ask questions of any person concerning the matter specified in the writing. 21. Special powers and duties of Bureau officers. (1) The Commissioner is entitled to attend at meetings of the Council. (2) The Commissioner shall, as the occasion requires it, assign an officer of the Bureau to perform the duties of secretary to the Council. Such secretary shall be the officer for the time being so assigned. (3) The Commissioner shall submit to the Minister annually for presentation to the Legislative Assembly and tabling therein a report on the activities of the Bureau for the year covered by the report. 22. Acting inspectors . The Minister or the Commissioner may from time to time appoint in writing any person who holds for the time being any office under the Crown in right of the State to act as an inspector for the purposes of this Act. While acting as such an inspector such an appointee has and may exercise all or any of the powers, functions and authorities of an inspector. A reference in this Act to any inspector shall be deemed to include reference to such an acting inspector.

378 Consumer Affairs Act 1970, No. 27 23. Aid by Government departments in supplying information. Save in respect of information which, by any other Act, is not to be divulged, the Permanent Head of each department of the Government of the State shall co-operate and shall cause the officers under his control to co-operate with the Commissioner and shall render the Commissioner assistance in the supply to him of information required by him for the purposes of this Act. PART 111-TRADE PRACTICES Division 1-False Trade Descriptions 24. Application of this Division . (1) The provisions of this Division apply with respect to all goods other than leather goods and textile goods. (2) In this section the expressions " leather goods " and " textile goods " have respectively the meanings assigned to those expressions by the Factories and Shops Act 1960-1968. 25. False trade descriptions prohibited . A person shall not- (a) append to any goods a false trade description; (b) sell goods to which a false trade description is appended; (c) use in connexion with the sale or the advertisement for sale of goods any matter that contains a false trade description in relation to the goods. 26. Prescribing trade descriptions . (1) The Governor in Council may prescribe in respect of any class or description of goods- (a) a trade description to be used in relation to goods of that class or description; (b) words to be included in a trade description used in relation to goods of that class or description. (2) A regulation made for the purpose of this section shall not prescribe a trade description that discloses or words that disclose trade secrets of production, manufacture or preparation except where the Minister so recommends on the ground that the disclosure is necessary for the protection of the health or well-being of consumers. 27. Use of prescribed trade descriptions . (1) Where a trade description is prescribed in respect of a class or description of goods a person shall not- (a) append to goods of that class or description a trade description other than that prescribed; (b) sell goods of that class or description to which is appended a trade description other than that prescribed; (c) use in connexion with the sale or the advertisement for sale of goods of that class or description any matter that contains a trade description in relation to the goods other than that prescribed. (2) Where words are prescribed to be included in a trade description used in relation to goods of any class or description, a person shall not- (a) append to goods of that class or description a trade description that does not include those words; (b) sell goods of that class or description to which is appended a trade description that does not include those words;

Consumer Affairs Act 1970, No. 27 379 (c) use in connexion with the sale or the advertisement for sale of goods of that class or description any matter that contains a trade description that does not include those words. 28. Appending false trade description in course of business . A person who, being in the ordinary course of his trade or business engaged by another to append a trade description to goods, appends a false trade description to the goods commits an offence against this Act unless he proves that- (a) he had no interest in the goods by way of profit or commission dependent on the sale of the goods; (b) he took reasonable precautions against committing the offence; (c) at the time of the commission of the alleged offence he had no reason to suspect that the trade description was false; and (d) on demand made by or on behalf of an inspector he gave all the information in his possession with respect to the identity and whereabouts of the person on whose behalf the trade description was appended and with respect to the circumstances in which he was engaged by that person to append the trade description. 29. Meaning of " appended ". For the purposes of this Division a trade description shall be deemed to be appended to goods if- (a) it is appended to the goods themselves or to any covering, label or thing used in connexion with the goods; or (b) it is used in a manner likely to lead to the belief that it describes or designates the goods, and shall be deemed to be appended to goods or to any covering, label or thing used in connexion with goods if it is woven, impressed. embossed or otherwise worked into or annexed or affixed to, or is written or printed on the goods, covering, label, or thing as the case may be. 30. False or misleading statements as to services . (1) A person shall not in a trade or business- (a) make a statement that he knows to be false; (b) recklessly make a statement that is false, as to any of the following matters, that is to say- (i) the provision in the course of a trade or business of any services, accommodation or facilities; (ii) the nature of any services, accommodation or facilities provided in the course of any trade or business; (iii) the time at which, manner in which, or persons by whom any services, accommodation or facilities are provided in the course of any trade or business; (iv) the examination, approval or evaluation by any person of any services, accommodation or facilities provided in the course of any trade or business; (v) the location or amenities of any accommodation provided in the course of any trade or business; (vi) in relation to services consisting of or including the application of any treatment or process or the carrying out of any repair, the effect of the treatment, process or repair.

380 Consumer Affairs Act 1970, No. 27 (2) For the purposes of this section- (a) anything (whether a statement as to any of the matters specified in the preceding subsection or not) likely to be taken for such a statement as to any of those matters as would be false shall be deemed to be a false statement as to that matter; (b) a statement made regardless of whether it is true or false shall be deemed to be made recklessly, whether the person making it had or had not reason to believe that it might be false. (3) In this section- (a) " false " means false to a material degree; (b) " services " does not include anything done by the person who makes the statement under a contract of service. Division 2-False Advertising 31. Representation as to Royal Warrant . A person shall not falsely represent that any goods are produced or manufactured by a person holding a Royal Warrant or for the service of Her Majesty or of any department of Government or that any goods or services have been inspected, tested or approved by or on behalf of Her Majesty or any department of Government or statutory authority. 32. Publication of false statements concerning goods prohibited. (1) A person shall not publish or cause to be published a statement that- (a) is intended or apparently intended by him or by any other person to promote the sale or other dealing with goods; and (b) is to his knowledge false or misleading in a material particular. (2) A statement shall be deemed to be published if it is- (a) inserted in a newspaper or in any other publication printed or published in Queensland; or (b) publicly exhibited- (i) in, on, over, or under any vehicle, vessel, building or other place whatsoever; or (ii) in the air so as to be seen by any person who may be in or on any public place; or (iii) contained in any document gratuitously sent or delivered to any person or thrown in or left upon any premises in the occupation of any person; or (iv) publicly announced by means of transmission of light or sound. 33. Knowledge of falsity or misleading character of statement presumed . If in a proceeding against any person for publishing or causing to be published a statement in contravention of section 30 of this Act, it is proved that the statement was false or misleading when published that person shall be deemed to have had knowledge of its falsity or misleading character, as the case may be, unless he proves- (a) that he took all reasonable precaution against committing the contravention; and (b) that at the time of publication he had reasonable grounds to believe and did believe that the statement was true or, as the case may be, was not misleading when it was published and he had no reason to suspect otherwise.

Consumer Affairs Act 1970, No. 27 381 34. Limitation as to prosecution . A prosecution in respect of a contravention of section 30 of this Act shall not be instituted against a person who is liable on account of the contravention only by reason of the fact that he is the printer, publisher or proprietor of any newspaper or other publication or the licensee of a commercial broadcasting station or commercial television station in or by means whereof the publication that contravenes the section is made unless- (a) the printer, publisher, proprietor or licensee, as the case may be, has been warned by an inspector of the falsity or misleading character of the statement or of any other statement substantially the same as it and that the publication of it is a contravention of section 32 of this Act; and (b) the printer, publisher, proprietor or licensee, as the case may be, has after the receipt of the warning published or caused to be published the statement or any such other statement in any newspaper or other publication, or document printed or published by him in Queensland or from any commercial broadcasting station or commercial television station of which he is the licensee. Division 3-Misrepresentation 35. Passing - off prohibited . A person shall not publish or cause to be published any statement, or do or cause to be done any act in relation to goods or services produced, manufactured, prepared or supplied by him which may reasonably be construed to indicate that the goods or services are produced, manufactured, prepared or supplied by any other person. 36. Misleading representations as to suitability of goods. A person shall not, in the conduct of his trade or business, publish or cause to be published any statement or do or cause to be done any act in relation to goods produced, manufactured, prepared or sold by him that is likely to mislead any other person as to the purpose for which the goods are suitable. PART IV-PROVISIONS FOR SAFETY OF CONSUMERS 37. Safety requirements and instructions . (1) The Governor in Council may, with a view to preventing or reducing risk of death, personal injury, or disease, make regulations for or with respect to imposing in relation to any prescribed class or description of goods- (a) requirements as to the composition of contents, design, construction, finish or packing of, or otherwise relating to goods of that class or description or any component part thereof; (b) requirements for securing that goods of that class or description or any component part thereof are (in the prescribed manner, if any) marked with or accompanied by a prescribed warning or instruction or by a warning or instruction of a prescribed nature. (2) Requirements may be imposed under this section with respect to all or any goods of a prescribed class or description and either generally or in prescribed circumstances. Regulations made for the purposes of this section may make different provision for different classes or descriptions of goods.

382 Consumer Affairs Act 1970, No. 27 (3) A class or description of goods may be prescribed for the purposes of this section notwithstanding that the goods are for use only as component parts of other goods whether those other goods are or are not goods of a prescribed class or description. 38. Prohibition on sale of goods not complying with requirements under s. 37. (1) Subject to this section, a person- (a) shall not sell goods of a class or description in relation to which requirements imposed pursuant to section 37 of this Act are in force unless all requirements relating to goods of that class or description are complied with; (b) shall not sell goods any component part of which is of a class or description of goods in relation to which requirements imposed pursuant to section 37 of this Act are in force unless all requirements relating to that class or description of goods are complied with; (c) shall not sell a component part that is intended to be embodied in goods of a class or description in relation to which requirements imposed pursuant to section 37 of this Act are in force unless, if the component part were embodied in those goods all such requirements, so far as they relate to that part of the goods, would be complied with. (2) The provisions of subsection (1) of this section do not apply to a person- (a) who reasonably believes that the goods or component parts will not be used by a consumer in Queensland.; (b) who, in the case of a sale under a credit-sale agreement or a letting under a hire-purchase agreement has at no time had the goods or component parts in his possession and only became the owner thereof at or after the time of entering into the agreement; (c) who is selling the goods or component parts for scrap, that is to say, for the value of the materials of which they are composed and not for use as finished articles; (d) who, in the case of goods or component parts damaged by or in consequence of fire or water, is selling the goods or component parts to a person who carries on a business of buying damaged goods and repairing or reconditioning them for resale, or to an insurer of the goods or parts; (e) who, in the case of a letting on hire, is letting the goods or component parts as incidental to the letting of premises; (f) who, in the case of possession of the goods or component parts for the purpose of letting on hire has possession for the purpose of a letting that is to be incidental to the letting of premises; (g) who, in the case of a letting on hire, lawfully let the goods or component parts at the time when the letting began. 39. Exemptions from s. 38 of certain goods. (1) Save to the extent that regulations made for the purposes of section 37 of this Act otherwise prescribe, the provisions of subsection (1) of section 38 of this Act shall not, in respect of any requirement relating to goods or a component

Consumer Affairs Act 1970, No. 27 383 part of goods, apply in relation to goods or component parts produced or manufactured in or imported into Queensland before the requirement was imposed. Where such regulations otherwise prescribe, such a requirement shall not apply in relation to such goods or component parts until a prescribed date. (2) Other exemptions from the operation of the provisions of subsection (1) of section 38 of this Act may be prescribed and shall apply in such circumstances as are prescribed. PART V-GENERAL PROVISIONS 40. This Act additional to other laws . The provisions of this Act shall operate in addition to and not in substitution for the provisions of any other Act or rule of law that touches upon like matter. 41. Saving of civil remedies . (1) No proceeding against or conviction of any person for an offence consisting of a contravention of or non-compliance with any provision of this Act shall affect any civil right or remedy available against the offender independently of this Act. (2) A person shall not be entitled to refuse to make full discovery or to answer any interrogatory directed to him or any question asked of him in any action on account of any provision of this Act or his being liable thereunder but evidence elicited from him thereby shall not be admitted against him in any proceeding in respect of an offence against this Act. 42. Protection of officers in administering Act. The Crown, and any person who is or was at the material time a member of the Council, or the Commissioner for Consumer Affairs, or an officer of the Bureau, or an inspector shall not incur liability on account of anything done for the purposes of this Act or done in good faith and purporting to be for the purposes of this Act. 43. Offences . (1) A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act. (2) A person who commits an offence against this Act may be prosecuted by way of summary proceedings under The Justices Acts 1886 to 1968. Subject to section 34 of this Act where it applies, such a proceeding may be taken by an inspector with the Minister's consent first had and obtained or by a person who claims to be aggrieved by the contravention or non-compliance in question with the Commissioner's consent first had and obtained. Such a proceeding shall be taken within one year from the time when the matter of complaint arose or within six months from the time when the matter of complaint came to the knowledge of the complainant whichever period is the later to expire. 44. Penalties . (1) A person guilty of an offence against this Act shall be liable- (a) for a first offence, to a penalty of $200 or to imprisonment for a period of six months or to both such penalty and imprisonment;

384 Consumer Affairs Act 1970, No. 27 (b) for a second offence, to a penalty of $500 or to imprisonment for a period of twelve months or to both such penalty and imprisonment; (c) for a third or subsequent offence, to a penalty of $1,000 or to imprisonment for a period of twelve months or to both such penalty and imprisonment. (2) Where a person is convicted of an offence against this Act in respect of the sale of goods to which a false trade description is appended the court before which he is convicted, in addition to any penalty or punishment it imposes may order- (a) that the offender, by or within the time specified in the order refund to the purchaser of the goods an amount (specified in the order) equal to the amount paid by the purchaser on account of the purchase price of the goods; or (b) that the offender, by or within the time specified in the order, supply to the purchaser goods in accordance with the trade description appended to the goods to which the charge relates or, if he is unable to supply such goods, refund to the purchaser an amount (specified in the order) equal to the amount paid by the purchaser on account of the purchase price of the goods. For the purposes of this subsection the purchase price of goods includes any excess of the amount payable by the purchaser over the cash price of the goods occasioned by reason of the goods having been sold under a credit-sale agreem-,nt or pursuant to a hire-purchase agreement. Where a person is convicted of an offence against this Act in connexion with the making of a false statement as to any matter referred to in paragraph (i), (ii) or (vi) of subsection (1) of section 30 of this Act the court before which he is convicted, in addition to any penalty, or punishment it imposes may order- (a) that the offender, by or within the time specified in the order, refund to the person aggrieved an amount (specified in the order) equal to the amount paid by the person aggrieved on account of the services, accommodation or facilities in relation to which the false statement was made; (b) that the offender, by or within the time specified in the order, supply to, the person aggrieved services, accommodation or, as the case may be, facilities that comply with the statement made or, if he is unable to supply such services, accommodation or facilities, refund to the person aggrieved an amount (specified in the order) equal to the amount paid by the person aggrieved on account of the services, accommodation or facilities in relation to which the statement was made. (3) Where a person is convicted of an offence against this Act in respect of the sale of goods to which a false trade description is appended or consisting of a contravention of section 30 of this Act the court before which he is convicted, in addition to any penalty or punishment it

Consumer Affairs Act 1970, No. 27 385 imposes, may order that the offender, by or within the time specified in the order, pay to a person aggrieved by the offence such amount as it thinks fit and specifies in the order- (a) as compensation for loss of time or for expense incurred by him by reason of the offence or in connexion with the proceedings taken in relation to the offence; or (b) as recoupment of loss suffered by him by reason of the offence. (4) Where a Magistrates Court has made an order under subsection (2) or (3) of this section a certificate of the clerk of the court that includes the terms of the order may be filed in the registry of a court that has jurisdiction in an action for debt to the extent of the amount so ordered to be paid and thereupon the order may be enforced as an order made by that court for payment to the payee named in the order of a debt due and owing to him. Where an offender has failed to comply with that part of an order made under subsection (2) of this section that requires him to supply goods, services, accommodation or facilities by or within a time specified in the order it shall be deemed for the purpose of enforcement of the order that he is unable to supply such goods, services, accommodation or facilities. The mode of enforcement of an order prescribed by this subsection is in lieu of any other mode of enforcement of that order that, apart from this subsection, may have been available in law. (5) Where a person convicted of an offence against this Act is a body corporate, every person who at the time of the commission of the offence was a member of the governing authority of that body corporate shall be deemed to have committed a like offence and be liable to the pecuniary penalty or imprisonment prescribed for the offence unless he proves that the offence was committed without his knowledge or that he used all due diligence to avoid the contravention of or non-compliance with this Act in question. 45. Employee ' s exemption from liability . No provision of this Act shall be construed to render liable thereunder an employee of an employer who is resident in Australia if the employee has, in relation to the contravention or non-compliance in question, acted bona fide upon the instructions of the employer and, on demand made by or on behalf of an inspector or a person aggrieved, has identified his employer and his whereabouts fully and accurately. 46. Evidentiary provisions . In any prosecution for an offence against this Act- (a) proof that a document, card, label or other thing containing a trade description of goods was delivered to the purchaser of the goods to which the charge relates at the time of the sale of the goods, shall be conclusive evidence that the goods were sold as goods to which the trade description contained in such document, card, label or other thing was appended; (b) a writing purporting to be a consent of the Minister or the Commissioner to the prosecution shall be accepted as evidence and, in the absence of evidence to the contrary, conclusive evidence of the Minister's or Commissioner's consent to the prosecution. 13

386 Consumer Affairs Act 1970, No. 27 47. Defence to prosecution . To any prosecution for an offence against this Act committed in respect of the sale of goods it shall be a defence to prove- (a) that the contravention or non-compliance in question was due to a cause beyond the defendant's control; (b) that the defendant took all reasonable precautions and used all due diligence to avoid the contravention or non-compliance in question in respect of the goods to which the charge relates; and (c) that the defendant acquired the goods from another person and sold them in the same condition as they were in when delivered to him. A cause shall not be taken to be beyond the defendant's control unless the court is satisfied that it is one that the defendant could not reasonably have foreseen or for which he could not reasonably have made allowance. 48. Powers of inspectors . (1) An inspector may at any reasonable time- (a) subject to this section, enter any place where he reasonably suspects goods are produced, manufactured, prepared, sold or stored or where he reasonably suspects invoices, documents or records relating to goods are kept and therein search for such goods, invoices, documents and records; (b) inspect any goods in that place and examine, make copies of and take extracts from any invoices, documents and records in that place relating to any goods; (c) open any package that contains or that he reasonably suspects to contain goods and that is found in that place; (d) take any goods found in that place, paying a just price therefor; (e) question with respect to matters under this Act any person employed or engaged in that place; (f) make such examination and inquiries as he thinks necessary to ascertain whether the requirements of this Act are being complied with. (2) Before an inspector enters any part of premises which part is used as a dwelling he shall, save where he has the permission of the occupier of that part to his entry, obtain from a justice a warrant to enter. (3) A justice who is satisfied upon the complaint of an inspector that there is reasonable cause to suspect- (a) that any place is being used for the production, manufacture, preparation, sale or storage of goods or for the keeping of invoices, documents or records in relation to goods; and (b) that in respect of such goods an offence against this Act has been committed, is being committed or is likely to be committed, may issue his warrant directed to the inspector to enter the place specified in the warrant for the purpose of his exercising therein the powers conferred on an inspector by this Act. (4) A warrant issued under this section shall be, for a period of one month from its issue, sufficient authority- (a) to the inspector to whom it is directed and to all persons acting in aid of him to enter the place specified in the warrant; and

Consumer Affairs Act 1970, No. 27 387 (b) to the inspector to whom it is directed to exercise in respect of the place specified in the warrant all the powers conferred on an inspector by this Act. (5) For the purpose of gaining entry to any place an inspector may call to his aid such persons as he deems necessary and such persons, while acting in aid of an inspector in the lawful exercise by him of his power of entry, shall have a like power of entry. 49. Obstruction , etc., of inspector . A person shall not- (a) assault, resist, impede or obstruct an inspector in the exercise of his power or in the discharge of his duties under this Act, or attempt so to do; (b) use threatening, abusive or insulting language to an inspector engaged in the exercise of his powers or in the discharge of his duties under this Act or to any person assisting an inspector therein; (c) fail to answer a question put to him by an inspector for the purposes of this Act, or make false or misleading answer to such a question, or fail to sign any declaration which he is required under this Act to sign; (d) fail to comply with a lawful request, direction or requisition of an inspector; (e) when so required by an inspector, fail to produce to the inspector any invoice, document or record whatsoever in his possession or at his disposal; (f) impersonate an inspector. 50. Preservation of secrecy . (1) A person who is or was at any time a member of the Council, or the Commissioner, or an officer of the Bureau, or an inspector shall not, save in the course of his duty under this Act, directly or indirectly communicate any information that came to his knowledge in consequence of his holding that appointment or position. (2) The provisions of the preceding subsection shall not be construed to prohibit- (a) the Commissioner or any person thereunto authorized in writing by him from communicating to the appropriate Minister or official of the Crown in right of the Commonwealth or of Queensland or of any other State of the Commonwealth information which the Commissioner considers should be communicated for the purpose of the administration of any law of the Commonwealth or of such other State or of any Act (b) any person referred to in that subsection, when called as a witness in a proceeding for an offence against this Act, from answering any question that he is compellable to answer in that proceeding. (3) In no case shall a person reierred to in subsection (1) of this section disclose or be compelled to disclose the source of information that came to his knowledge in consequence of his holding an appointment or position under this Act. 51. Regulations . (1) The Governor in Council may make such regulations, not inconsistent with this Act, as he considers necessary or desirable to the proper administration of this Act or to achieve the objects and purposes of this Act and in particular to prescribe any matter required or permitted by this Act to be prescribed.

388 Consumer Affairs Act 1970, No. 27 A regulation may provide for the attestation of any fact, document or form by means of an affidavit on oath or statutory declaration. (2) Every regulation shall- (a) be published in the Gazette; (b) upon its publication in the Gazette, be judicially noticed and such publication shall be conclusive evidence of the matters contained therein; (c) take effect from the date of its publication in the Gazette unless a later date is specified therein or in another regulation for its commencement when in such event it shall take effect from that later date; (d) be laid before the Legislative Assembly within fourteen sitting days after its publication in the Gazette, if the Assembly is in session, and if not, then within fourteen sitting days after the commencement of the next session. (3) If the Legislative Assembly passes a resolution of which notice has been given at any time within fourteen sitting days after a regulation has been laid before it disallowing the regulation or a part thereof that regulation or, as the case may be, part shall thereupon cease to have effect but without prejudice to the validity of anything done in the meantime or to the making of a further regulation.