Consumer Affairs Act Amendment Act 1973 (Qld)

241 ANNO VICESIMO SECUNDO EL ZA E AE SECU 1 V DAE A 4 Ei.9I1i AE No. 25 of 1973 An Act to amend the Consumer Affairs Act 1970 in certain particulars [ASSENTED TO 19TH APRIL, 1973] 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:-- 1. Short title and citation . (1) This Act may be cited as the Consumer Affairs Act Amendment Act 1973. (2) The Consumer Affairs Act 1970 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Consumer Affairs Act1970-1973. 2. Amendment of s. 3. Section 3 of the Principal Act is amended by, in the reference commencing with the words " PART IV ", inserting after the word " SAFETY " the words " AND INSTRUCTION ".

242 Consumer Affairs Act Amendment Act 1973, No. 25 3. Amendment of s. 4. Section 4 of the Principal Act is amended by, in subsection (I)- (a) omitting the definition " consumer " and inserting in its stead the following definition:- " " consumer " means a person, other than an incorporated person, who buys or hires goods otherwise than for re-sale or letting on hire or than in the course of or for the purposes of a trade or business carried on by him, or than as a member of a business partnership,. or for whom services are supplied for fee or reward otherwise than in the course of or for the purposes of a trade or business carried on by him, or than as a member of a business partnership;" ; (b) inserting after the definition " sell " the following definitions:- " services " means services provided in the field of trade or commerce and includes accommodation and facilities of any kind; " Small Claims Tribunal " means a tribunal duly constituted under the Small Claims Tribunals Act1973; "; (c) adding at the end of the definition " trade description " the words " and, in relation to a motor vehicle, includes the mileage shown on the odometer fitted in the vehicle as having been travelled by the vehicle ". 4. Amendment of s. 5. Section 5 of the Principal Act is amended by- (a) omitting subsection ( 1), and inserting in its stead the following subsections:- " (1) The Consumer Affairs Council as constituted at the date of commencement of the Consumer Affairs Act Amendment Act 1973 shall continue to be comprised of twelve members or, if before the expiration of the term of appointment of the whole number of the members of the Council the Commissioner for Consumer Affairs is appointed to the Council , shall be comprised of thirteen members. (2) On and from the expiration of the term of appointment of the whole number of members of the Council as constituted at the date of commencement of the Consumer Affairs Act Amendment Act 1973 there shall be a Consumer Affairs Council- (a) comprised of such number of members as the Minister specifies who shall have such qualifications for membership as the Minister specifies, or, in the absence of specification by the Minister, twelve members; or (b) if the Commissioner for Consumer Affairs is at any time appointed to the Council , comprised of the number of members provided for by provision (a) and the Commissioner. In making a specification as to the number or qualifications of members of the Council the Minister shall have regard to the interest in consumer affairs of all sections of the community and shall, so far as possible , ensure- that the membership of the Council is representative of the whole field of such community interest; and that the membership of the Council includes representatives of producers of goods and suppliers of services ( both as employers and employees ) and of consumers of goods and services.

Consumer Affairs Act Amendment Act 1973, No. 25 243 (3) A specification by the Minister with respect to the number of members of the Council shall not be made so as to vary the constitution of the Council in respect of the term of appointment of the whole number of members of the Council (other than the Commissioner) current at the time the specification is made. (4) The Governor in Council may, on the recommendation of the Minister, appoint the Commissioner to be a member of the Council. Where the Commissioner is appointed as a member of the Council to take effect during the term of appointment of the whole number of members of the Council then current he shall be appointed in the first instance for the balance of that term. (5) Every appointment of a member of the Council shall be made by the Governor in Council by notification published in the Gazette."; (b) renumbering subsection (2) as subsection (6) and in that subsection, omitting the words " Of the members of the Council - " and inserting in their stead the words " For as long as the Council is comprised of twelve members (other than the Commissioner) in the absence of a specification by the Minister as to the number of members of the Council, of such members-". 5. Amendment of s. 6. Section 6 of the Principal Act is amended by, in subsection (2), inserting after the word " may " the words ", with the approval of the Minister first had and. obtained,". 6. Amendment of s. 13 . Section 13 of the Principal Act is amended by, in subsection (2), omitting the word "eight" and inserting in its stead the word " six ". 7. Amendment of s. 19. Section 19 of the Principal Act is amended by adding at the end of subsection (1) the following paragraph:- " The performance by the Bureau of any of its prescribed functions shall be subject to the approval of the Commissioner being first had and obtained, which approval may be given generally or in a particular case.". 8. Repeal of and new s . 20. The Principal Act is amended by repealing section 20 and inserting in its stead the following section:- " 20. Power to obtain information . (1) Any inspector may require any person (either by oral or written requisition)- (a) to furnish to the inspector such information as he requires; (b) to answer any question put by the inspector to that person. (2) A requisition made under subsection (1) may require that the information be furnished or the question be answered- (a) orally or in writing; (b) at a place specified therein; (c) by or within a time specified therein; (d) by means of a Statutory Declaration in accordance with the Oaths Act of 1867.

244 Consumer Affairs Act Amendment Act 1973, No. 25 (3) A person to whom a requisition made under subsection (1) is directed- (a) shall not fail to furnish the information or to answer the question as required; (b) shall not furnish information or make answer that is false in any particular; (c) where a time is therein limited for complying with the requisition, shall furnish the information or answer the question by or within that time. (4) A person shall not be entitled to refuse to furnish information or to answer any question required of him under subsection (1) on the ground only that the information or answer would tend to criminate him. (5) Information obtained pursuant to a requisition made under subsection (1) shall not be admissible in evidence in any proceeding against the person who furnished the information in any court or tribunal other than a Small Claims Tribunal save- (a) where the information is as to the name or address of that person or as to his ownership of any business; or (b) where the proceeding concerns an alleged contravention of provision (b) of subsection (3).". 9. Are .' E i ^ of s. 21. Section 21 of the Principal Act is amended by, in subsection (1), adding the words " notwithstanding that at the time he is not a member of the Council ". 10. Amendment of s. 29. Section 29 of the Principal Act is amended by inserting after provision (b) the following provision:- [f (c) in the case of a trade description that consists of mileage shown as having been travelled by the motor vehicle to which it relates, the odometer in question is fitted in the motor vehicle and the mileage is shown thereon ". 11. Repeal of s. 30. The Principal Act is amended by repealing section 30. 12. Repeal of s. 31 and new section . The Principal Act is amended by repealing section 31 and inserting in its stead the following section:- " 30. Provisions concerning governmental approval of goods or services . (1) A person shall not in any statement or advertisement made or published in relation to the supply of goods or the provision of services refer to the Council or the Bureau or to any member of the Council or any officer of the Bureau. (2) A person shall not- (a) represent that any goods are produced or manufactured or any services are provided by a person holding a Royal Warrant, or for the service of Her Majesty or of any department of Government; or

Consumer Affairs Act Amendment Act 1973, No. 25 245 (b) represent. that any goods or services have been inspected, tested or approved by or on behalf of Her Majesty, or any department of Government, the Australian Standards Association, or any body or authority constituted by or under a statute, unless the representation is true in every respect.". 13. Repeal of s. 32 and n ew section . The Principal Act is amended by repealing section 32 and inserting in its stead the following section:- " 31. False or misleading statements concerning goods or services . (I) A person shall not, in the conduct or for the purposes of a trade or business, make a statement that he knows to be false in a material particular or that is misleading in relation to- (a) goods or the availability or supply of goods; (b) services or the availability or provision of services. (2) For the purposes of this section- (a) any utterance, whether made orally or reduced to writing, that is likely to be taken by a reasonable person. to be a statement relating to any of the matters referred to in provision (a) or (b) of subsection (1) shall be deemed to be such a statement; (b) any statement that is likely to deceive or mislead in a material way the person to whom it is made shall be taken to be a misleading statement. (3) Subsection (1) does not apply to a statement made by an employee to his employer in relation to goods supplied or to services provided under a contract of service or in relation to the availability or supply of such goods or the availability or provision of such services.". M. New s. 32. The Principal Act is amended by inserting after section 31 (as enacted by this Act) the following section:- " 32. False or misleading publications concerning- goods or services . (1) A person shall not in the conduct or for the purposes of any trade or business- (a) publish in Queensland a statement or advertisement; or (b) in Queensland, do any act or take any step to cause the publication outside Queensland of a statement or advertisement, that is of a class calculated to promote the sale of goods or other dealing with goods or the provision of services and that- (c) he knows to be false; or (d) is misleading. (2) For the purposes of this section, a statement or advertisement that is likely to deceive or mislead in a material way a person or a class of person to whom it is directed shall be taken to be a misleading statement or advertisement, as the case may be.

246 Consumer Affairs Act Amendment Act 1973, No. 25. (3) A statement or advertisement shalt be taken to be published if it is- (a) inserted in a newspaper or other publication; (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 into or left upon any premises in the occupation of any person; or (iv) publicly announced or displayed by means of transmission of sound or light. (4) It is a defence to a charge of an offence that consists partly of an element referred to in provision (b) of subsection (1) to prove that the statement or advertisement was not published. 15. Repeal of and new s. 33. The Principal Act is amended by repealing section 33 and inserting in its stead the following section:- "33. Knowledge of falsity presumed. If in a proceeding against any person in respect of an offence defined in section 31 or 32 it is proved that a statement or advertisement made or published by the defendant was false when made or published the defendant shall be deemed to have had knowledge of its falsity unless he proves- (a) that he took all reasonable precautions against committing the offence; and (b) that at the time of making or publishing the statement or advertisement he had reasonable grounds to believe and did believe that the statement or advertisement was true, and that he had no reason to suspect otherwise.". 16. Repeal of and new s. 34. The Principal Act is amended by repealing section 34 and inserting in its stead the following section:-- " 34. Cash price of goods t o be indicated . (1) A person offering to supply goods or to provide services shall not make or publish a statement or advertisement that indicates or in any other manner indicate- (a) the deposit required, (b) any periodic rates of payment, for those goods or services unless the cash price for the goods or services is also indicated. (2) A person offering to supply prescribed goods or to provide prescribed services shall not make a statement orally or in writing that indicates or that is likely to be taken as an indication that such goods or services are being offered at a price less than the price at which they or similar goods or services have previously been offered unless he also indicates in an equally distinct manner the present price of the goods or services.

Consumer Affairs Act Amendment Act 1973, No. 25 247 17. Repeal of and new s. 35. The Principal Act is amended by repealing section 35 and inserting in its stead the following section:- 1135. Passing - off prohibited . A person shall not make or publish a statement or advertisement or do any act that indicates or that is likely to be taken as an indication that goods or services produced, manufactured, prepared, supplied or provided, by him are produced, manufactured, prepared, supplied. or provided by any other person.". IS: Repeal of and new s. 36. The Principal Act is amended by repealing section 36 and inserting in its stead the following section:- " 36. Misleading representations as to suitability of goods or services . A person shall not, in the conduct or for the purposes of a trade or business, make or publish a statement or advertisement or do any act in relation to goods or services produced, manufactured, prepared, supplied or provided by him that is likely to mislead any person as to the purpose for which the goods or services are suitable.". 19. Amendment of heading to Part IV. The Principal Act is amended by, in the heading to Part IV, inserting after the word " SAFETY " the words "AND INSTRUCTION ". 20. Amendment of s. 37. Section 37 of the Principal Act is amended by adding at the end of subsection (1) the following provision:- L< (e) requirements that containers of goods of that class or description, being goods to be used as food of man or beast shall, for purposes of sale, be marked to show the component parts of those goods and such other particulars of those goods (other than the weight or measure thereof) as are prescribed ". 21. Repeal of and new s. 42. The Principal Act is amended by repealing section 42 and inserting in its stead the following section:- 1142. Extent of authority to make disclosures for purposes of Act and of protection for such disclosures and for things done under Act. (1) No liability shall be incurred by the Crown on account of any disclosure or publication made by any member of the Council concerning any of the matters specified in subsection (3) and the Crown and any person in the service of the Crown shall not be constrained to any course of action by reason of any disclosure or publication so made concerning any of those matters. (2) No liability shall be incurred by the Crown or any person- (a) on account of any disclosure or publication made to the Commissioner, any officer of the Bureau or any inspector, or (b) on account of any disclosure or publication made by the Commissioner or on his behalf, concerning any of the matters specified in subsection (3). (3) The matters to which subsections (1) and (2) refer are- the supply of goods; the provision of services; any matter touching the commercial or business reputation of any person associated with the supply of goods or provision of services;

248 Consumer Affairs Act Amendment Act 1973, No. 25 the quality of goods supplied by any supplier of goods; the standard of services provided by any provider of services.". (4) No liability shall be incurred by the Crown , any member of the Council , the Commissioner, or any person acting on his behalf, any officer of the Bureau or any inspector 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. 22. Amendment of s. 43. Section 43 of the Principal Act is amended by- (a) in subsection ( 2), omitting the second and third paragraphs; (b) adding the following subsections:- (3) A prosecution for an offence against this Act- (a) shall be instituted by an inspector or by a person claiming to be aggrieved by the offence , in either case with the Commissioner's consent first had and obtained; (b) shall be commenced within one year after the matter of complaint arose or within six months after the matter of complaint comes to the knowledge of the complainant, whichever period is the later to expire. (4) Where a body corporate is charged with an offence against this Act, any person who is concerned or takes part in the management of the body corporate may be charged with. a like offence, and where the body corporate is convicted of the offence any person who is charged with a like offence pursuant to this subsection may be convicted of the like offence unless he proves that the act or omission constituting the offence took place without his knowledge or consent.". 23. Amendment of s. 44. Section 44 of the Principal Act is amended by- (a) in subsection ( 2), omitting all words from and including the words Where a person is convicted ," where they secondly o ccur, to the end of the subsection and inserting in their stead the following words:- " Where a person is convicted of an offence against this Act that consists in the making of a statement in relation to services or the availability or provision of services in contravention of section 31 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 in relation to which or the availability or provision of which the statement was made; (b) that the offender, by or within the time specified in the order, provide the person aggrieved with services that comply with the statement made or, if he is unable to provide such services, refund to the person aggrieved any amount (specified in the order) equal to the amount paid by the person aggrieved on account of the services in relation to which or the availability or provision of which the statement was made.";

Consumer Affairs Act Amendment Act 1973, No. 25 249 (b) in subsection (3), omitting the numeral " 30 " and inserting the numeral. " 31 ". 24. Repeal of and new s. 45. The Principal Act is amended by repealing section 45 and inserting in its stead the following section:- " 45. Liability for offences as between employer and employee. (1) Where it appears that a statement that contravenes this Act- (a) was made or published by a person who is employed by another, who is resident in Australia, under a contract of service; and (b) was made or published in or for the purposes of the employer's trade or business, the employer shall be deemed to have made the statement and to have committed the offence that consists in the making or publication of the statement unless he proves that the statement was made by the employee contrary to his instructions. (2) Where it appears that a statement that contravenes this Act was made or published by a person who is employed by another, who is resident in Australia, under a contract of service the employee shall not incur any liability under this Act in respect of making or publishing the statement if- (a) he has therein acted bona fide upon the instructions of the employer; and (b) on demand made of him by an inspector or a person aggrieved by the statement, he has identified his employer and his whereabouts fully and accurately.". 25. New s. 45A. The Principal Act is amended by inserting after section 45 the following section:- " 45A. Limitation of liability of publishers of newspapers, etc. A prosecution in respect of a contravention of section 32 shall not be instituted against a person who is liable therefor by reason only of his being the printer, publisher or proprietor of a newspaper or other publication or of his being the licensee of a commercial broadcasting or television station in or by means of which the making or publication of the statement in question is made unless- (a) he had 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, in the Commissioner's opinion, the statement contravenes section 32; and (b) he has, after receipt of such warning, published in Queensland the statement or such other statement in or by means of the newspaper or other publication, or the commercial broadcasting station or, as the case may be, the commercial television station.". 26. Amendment of s. 46. Section 46 of the Principal Act is amended by omitting provision (b) and inserting in its stead the following provision:- (b) judicial notice shall be taken of the appointment of the Commissioner and of the signature of the Commissioner.".

250 Consumer Affairs Act Amendment Act 1973, No. 25 27. Repeal of and new s. 47. The Principal Act is amended by repealing section 47 and inserting in its stead the following section:- " 47. Defences to charges under Act . (1) To a charge of any offence against this Act it is a defence to prove- (a) that the contravention or failure to comply 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 failure to comply in question. (2) 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 it is one for which he could not reasonably have made allowance. (3) The provisions of section 23 of The Criminal Code, to the extent that it provides exculpation from criminal responsibility for an act or omission that constitutes an offence against this Act, and the provisions of section 24 of The Criminal Code do not apply in respect of any offence against this Act.", 28. A¢°ic ° i,': of s. 48. Section 48 of the Principal Act is amended by- (a) omitting subsection (1) and inserting in its stead the following subsection: - " (1) For the purpose of the exercise by the Bureau of any of its functions under this Act, or for any other purposes of this Act, an inspector may at all reasonable times- (a) enter any place where he knows or reasonably suspects that- (i) goods are produced, manufactured, prepared, sold or stored; or (ii) services are provided; or (iii) invoices, documents or other records relating to goods supplied or to be supplied, or relating to services provided or to be provided are kept; (b) enter any place that he knows or reasonably suspects to be used by any person as an office, depot or premises for the purpose of carrying on any business or trade of supplying goods or providing services; (c) enter any place that he knows or reasonably suspects to be used by any person for printing or as an office in connexion with a business or trade of printing any newspaper or other publication, which he knows or reasonably suspects to be associated with any contravention or failure to comply with this Act; (d) enter any commercial broadcasting or television station, which he knows or reasonably suspects to be associated with any contravention or failure to comply with this Act;

Consumer Affairs Act Amendment Act 1973, No. 25 251 (e) in any place lawfully entered by him- (i) search for , collect, examine , take possession of or make copies of or extracts from invoices , documents or other records relating to goods supplied or to be supplied, or relating to services provided or to be provided, or relating to any matter the subject of an investigation under this Act; (ii) search for goods therein and examine goods found therein; (iii) take any goods found therein, paying a just price therefor; (iv) open any package that he knows or reasonably suspects to contain goods; (v) question with respect to matters with which this Act is concerned any person engaged or employed therein; (f) make such inquiry and examination as he believes to be necessary or desirable to assist the exercise of any function or power under this Act or to ascertain whether any offence against this Act is being or has been committed. No provision of this subsection shall be taken to authorize forcible entry by an inspector to any premises save under the authority of a warrant obtained by him pursuant to subsection (3). (b) adding the following subsection:- " (6) Where an inspector has taken possession of any invoice, document or other record, or of any goods for the purposes of this Act he may- (a) in the case of any invoice , document or other record, retain the same for so long as is necessary for those purposes , but the person otherwise entitled to possession thereof, if he so requests it of the inspector , is entitled to be furnished as soon as practicable with a copy thereof certified by the Commissioner to be a true copy and such a certified copy shall be received in all courts and elsewhere as evidence of the matters contained therein as if it were the original; (b) in the case of goods, retain the same for so long as is necessary for those purposes , and thereafter dispose thereof as the Commissioner directs.". 29. Amendment of s. 50. Section 50 of the Principal Act is amended by, in subsection (1), (a) inserting after the words " this Act" the words or where it is competent to him so to do by reason of a provision of this Act ". (b) adding the following paragraph: " It is competent to the Commissioner, every officer of the Bureau, and an inspector to communicate to a consumer whose complaint concerning any matter has been investigated by the Bureau, or to a Small Claims Tribunal, information concerning that matter, which has come to his knowledge as a result of the investigation and which is of a class of information that the Commissioner has authorized, either generally or in a particular case, to be so communicated.".

252 Consumer Affairs Act Amendment Act 1973, No. 25 30. New s. SOA. The Principal Act is amended by inserting after section 50 the following section:- "50A. Service of documents . (1) Where any notice, requisition or other document is to be given to any person under or for the purposes of this Act it shall be taken- (a) that the notice, requisition or other document has been duly given to that person upon evidence that the same has been sent by pre-paid certified mail to the address last known to the person by whom the same was sent as the place of residence or place of business of that person or, where that person is an incorporated person, as the registered office of that incorporated person; and (b) that the notice, requisition or other document was received by the addressee at the time when the certified mail would have been delivered at the address to which it was sent in the ordinary course of post. (2) Where service is to be effected on a body corporate, it may be effected on any person who is concerned or takes part in the management of the body corporate, or on the secretary thereof, or on any person who is apparently in charge of any premises in or from which the business of the body corporate is conducted and service so effected shall be deemed to be service on the body corporate.".