Consumer Affairs Act and Another Act Amendment Act 1982 (Qld)

125 (Queensta b ANNO TRICESIMO PRIMO ELIZABETHAE SECUNDAE REGINAE No. 13 of 1982 An Act to amend the Consumer Affairs Act 1970-1974 and the Factories and Shops Act 1960-1975 each in certain particulars [ASSENTED TO 20TH APRIL, 19821

126 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 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 and citation . This Act may be cited as the Consumer Affairs Act and Another Act Amendment Act 1982. 2. Commencement . (1) Section 1 and this section shall commence on the day on which this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), this Act shall commence on a day appointed by Proclamation. 3. Arrangement . This Act is divided into Parts as follows:- PART I-PRELIMINARY; PART II-AMENDMENTS OF CONSUMER AFFAIRS ACT 1970-1974; PART III-AMENDMENTS OF FACTORIES AND SHOPS ACT 1960-1975. PART II-AMENDMENTS OF CONSUMER AFFAIRS ACT 1970-1974 4. Citation . (1) In this Part the Consumer Affairs Act1970-1974 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the ConsumerAffairsAct1970-1982. 5. Amendment of s. 3 . Division of Act. Section 3 of the Principal Act is amended by- (a) omitting the reference " PART III-TRADE PRACTICES (ss. 24-36G);" and substituting the reference " PART III-TRADE PRACTICES (ss. 24-36N);"; (b) omitting the reference " Division I-False Trade Descriptions; " and substituting the reference " Division I-Trade Descriptions; "; (c) inserting after the reference " Division 4-Warranties; " the expression " Division 5-Furniture Regulation and Labelling; "; (d) omitting the reference " PART IV-PROVISIONS FOR SAFETY AND INSTRUCTION OF CONSUMERS (ss. 37-39); " and substituting the reference " PART IV-PROVISIONS FOR SAFETY AND INSTRUCTION OF CONSUMERS (ss. 37-39D); "; (e) inserting after the reference substituted pursuant to paragraph (d) the reference " PART IVA-PROVISIONS AFFECTING MANUFACTURE AND SALE OF SHOES (s. 39E);".

Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 127 6. Amendment of s. 4. Definitions . Section 4 of the Principal Act is amended in subsection (1) by- (a) after the definition " false trade description " inserting the following definitions:- " " fibre " means wool, hair, silk, cotton, linen and any other fibrous material, whether natural or artificial; " furniture " includes goods prescribed to be furniture for the purposes of this Act but excludes- (a) furniture built upon the specific order of the consumer; (b) goods or classes of goods which are prescribed not to be furniture for the purposes of this Act;"; (b) after the definition " label " inserting the following definition:- " " leather goods " includes goods of which- (a) the greater part of the area of the outside is composed of- (i) leather or a material resembling leather in texture or appearance; (ii) fibre or vulcanite or a material resembling fibre or vulcanite in texture or appearance; or (iii) plastic; and (b) the total outside area measurement is 155 square centimetres or greater: The term does not include straps;"; (c) after the definition " services " inserting the following definition: " " shoes " includes boots, slippers, sandals, thongs, scuffs and similar footwear;"; (d) after the definition " Small Claims Tribunal " inserting the following definitions:- " " sole " means all that part of a shoe including the heel, that in use is under the foot of the wearer. The term does not include- (a) the insole; (b) the sock lining; (c) thread, wax, rivets, pegs, nails, toe-plates, heel-tips or heel-caps; " textile goods " means- (a) woven, knitted or felted materials manufactured from fibre; (b) tops, yarns, threads and lace; (c) articles manufactured in whole or in part of such materials but not including linings, inter-linings or trimmings forming part of those articles; and (d) all carpets and pile fabrics but not including backings, linings, inter-linings or trimmings forming part of such carpets or pile fabrics;";

128 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 (e) in the definition " trade description "- (i) after the words " indication," inserting the word " instruction "; (ii) in provision ( a), inserting after the word " purity " the words ", characteristics "; (iii) after provision (b), inserting the following provisions:- "(bi) the suitability of particular methods of washing, cleaning, ironing or otherwise caring for the goods; (bii) the flammability of the goods or other qualities affecting the safety of users of the goods;". 7. Amendment of heading to Division 1, Part 111 . False Trade Descriptions . The Principal Act is amended by, in the heading to Division 1 of Part 111, omitting the word " False ". 8. Repeal of and new s. 24. Application of this Division. The Principal Act is amended by omitting section 24 and substituting the following section:- " 24. Exemption from application of this Division . The regulations may declare that this Division or such part thereof as is specified in the regulations shall not apply to any goods or class or description of goods specified in the regulations.". 9. Amendment of s. 26 . Prescribing trade descriptions . Section 26 of the Principal Act is amended in subsection (1) by inserting at the end of provision (b) the following expression and words:- L4 (c) the manner in which a trade description shall be appended to goods of that class or description " 10. New s. 26A. The Principal Act is amended by inserting after section 26 as amended the following section:- " 26A. Special provisions relating to trade descriptions for textile goods. (I) A trade description prescribed in relation to any textile goods may require a statement specifying the fibre or fibres of which those goods wholly or partly consist. (2) The regulations may provide that an artificial fibre of a class or type described therein shall be described in a trade description appended to any textile goods by a name therein prescribed for that class or type of fibre. (3) Where the regulations do not prescribe a name as provided in subsection (2) in respect of a class or type of artificial fibre, the trade description for textile goods consisting wholly or partly of those fibres shall consist of or include the words " artificial fibre " or the words 11 man-made fibre ".".

Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 129 11. New s. 27A. The Principal Act is amended by inserting after section 27 the following section:- " 27A. Duty to append trade descriptions to certain goods. (1) A person shall not sell any prescribed goods unless a trade description, that complies in every respect with the requirements prescribed in relation to a trade description to be appended to those goods, is appended thereto in the prescribed manner. (2) A person who manufactures for sale any shoes shall append thereto in the prescribed manner a trade description that complies in every respect with the requirements prescribed in relation to a trade description to be appended to those shoes. (3) For the purposes of subsection (1), " prescribed goods " means leather goods, shoes, textile goods and such other goods whatsoever as are prescribed by the regulations.". 12. New s. 28A. The Principal Act is amended by inserting after section 28 the following section:- " 28A. Altering trade descriptions . (1) A person shall not, except to the extent and in the manner prescribed, alter, by way of addition, effacement, or otherwise howsoever, a trade description which, under or in compliance with any law (including this Part) of any State or Territory of the Commonwealth or of the Commonwealth, has been applied to any goods: Provided that this subsection shall not apply with respect to any alteration made when the goods are in the possession of a person other than the manufacturer or a seller thereof and the goods are not subsequently sold. (2) A person shall not sell any goods the trade description, applied under or in compliance with any law (including this Part) of any State or Territory of the Commonwealth or of the Commonwealth, to which has been altered in contravention of subsection (1). (3) It is a defence to a prosecution for an offence under this section if the person charged proves that he acted without intent to deceive or defraud.". 13. Amendment of s. 29 . Meaning of " appended ". Section 29 of the Principal Act is amended by- (a) numbering the existing section as subsection (1); (b) inserting after subsection (1) as renumbered the following subsection:- " (2) Nothing in this section shall affect the operation of any regulation relating to the manner in which a trade description shall be appended to any goods.".

130 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 14. New Division 5, Part III . The Principal Act is amended by inserting after section 36G the following heading and sections:- " Division 5-Furniture Regulation and Labelling 36H. Stamping or labelling of furniture by manufacturer or assembler. A person who in Queensland manufactures or assembles new furniture for a fee or reward or any other consideration or in the course of any trade or business shall not send out or remove or cause to be sent out or removed from the premises or place in which it is manufactured or assembled that furniture unless it is stamped or labelled in the prescribed manner with the true name of the manufacturer or assembler and the address of the premises or place in which that furniture is manufactured or, as the case may be, assembled. 361. Furniture from other States etc., to be stamped or labelled. The importer, consignee or buyer of new furniture manufactured or assembled in another State or Territory of the Commonwealth and imported into Queensland for a fee or reward or any other consideration or in the course of any trade or business whatsoever shall not sell that furniture unless it is stamped or labelled in the prescribed manner with the true name of the manufacturer or assembler and the address of the premises or place and the State or Territory of the Commonwealth in which that furniture was manufactured or assembled. 36J. Imported furniture to be stamped or labelled . The importer, consignee or buyer of new furniture manufactured or prepared wholly or partly in a country outside Australia and imported into Queensland, in an assembled or unassembled state, for a fee or reward or any other consideration or in the course of trade or business whatsoever shall not sell that furniture unless it is stamped or labelled in the prescribed manner in the English language- (a) with the country in which the furniture was manufactured, prepared or assembled; (b) with the word " Imported "; and (c) where the furniture is fully assembled when imported or is sold in an unassembled state, with the true name and address of the importer, consignee or, as the case may be, buyer; or (d) where the furniture is assembled in Queensland prior to sale, with the true name of the assembler and the address of the premises or place in which that furniture is assembled. Compliance with section 36H shall be deemed to be compliance with provision (d). 36K. Offences . (1) A person shall not- (a) falsely stamp or label any furniture with a stamp or label purporting to be a stamp or label of a manufacturer, assembler, importer, consignee or buyer of furniture under this Act or any law of the Commonwealth or any other State or Territory of the Commonwealth;

Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 131 (b) remove, erase, deface or otherwise interfere with any stamp or label on or appended to any furniture purporting to be a stamp or label under this Act or any law of the Commonwealth or any other State or Territory of the Commonwealth; or (c) sell any furniture that he knows to be falsely stamped or labelled with the stamp or label of a manufacturer, assembler, importer, consignee or buyer of furniture. (2) It is a defence to a prosecution for an offence under subsection (1) if the person charged proves that he acted without intent to deceive or defraud. 36L. Prohibition on selling unstamped or unlabelled new furniture. (1) A person shall not sell any new furniture unless the furniture is duly stamped or, as the case may be, labelled in accordance with this Division. (2) It is a defence to a prosecution for an offence under subsection (1) if the person charged proves that- (a) at the time when the offence is alleged to have been committed, the furniture to which the proceedings relate bore the same stamp or label as it bore when the defendant acquired it; (b) the stamp or, as the case may be, label appeared to comply with this Act in all respects; (c) the stamp or, as the case may be, label had not been altered in any way by him; and (d) on demand made by or on behalf of an inspector, he gave to the inspector all the information in his power with respect to the person from whom he acquired the furniture. 36M. Manner of stamping and labelling furniture . (1) Furniture that is stamped pursuant to this Division shall be stamped with a prescribed stamp using an indelible permanent ink, stain or impression. (2) Furniture that is labelled pursuant to this Division, shall be labelled with a label as prescribed which shall be nailed, rivetted, screwed, tacked, glued, gummed, sewn or by other suitable means secured to or into the furniture in a workmanlike manner so that the type or print shall be clear and legible and in a way that will not permit the label to be rubbed off, obliterated or detached easily by the normal handling or use of the furniture. 36N. Furniture not to be sold without trade description appended. (1) A person shall not sell any new furniture unless there is appended to the furniture in the manner prescribed a trade description containing such particulars (if any) as are prescribed. (2) For the purposes of subsection (1), section 29 applies as if this section were part of Division I.".

132 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 15. New s. 39A. The Principal Act is amended by inserting after section 39 the following section:- " 39A. Minister may make orders prohibiting or restricting sale of dangerous goods. (1) The Minister, if in his opinion any goods or goods of any class or description are likely to cause the death or injury to the body or health of any person whether directly or indirectly, may by order published in the Gazette- (a) prohibit the sale of those goods or goods of the class or description specified or referred to in the order; or (b) allow the sale to consumers of those goods or goods of the class or description specified or referred to in the order, but only subject to conditions or restrictions specified in the order. (2) The Minister may by order published in the Gazette rescind or vary an order made under subsection (1). (3) An order made under subsection (1) or (2) shall take effect from the date of publication in the Gazette or from such later date as is specified in the order.". 16. New s. 39B . The Principal Act is amended by inserting after section 39A the following section:- "39B. Offence to contravene order under s. 39A. A person shall not sell goods in contravention of an order made under section 39A.". 17. New s. 39C. The Principal Act is amended by inserting after section 39B the following section:- " 39C. Seizure etc., of goods in certain cases . (1) An inspector may at any time seize and detain goods that he suspects on reasonable grounds are being or have been sold in contravention of an order made under section 39A. (2) Where a person is charged with an offence against section 39B, the court before which the complaint is heard, if it is satisfied that the goods, the subject of the charge, are goods or goods of a class or description in respect of which an order under section 39A has been made, may, whether or not that person is convicted of the offence charged, order the forfeiture to the Crown of all or any of the goods. (3) (a) A person claiming to be entitled to goods that have been seized and detained pursuant to subsection (1) may, within 28 days after the date of the seizure of the goods, apply to a Magistrate for an order for the delivery to him of those goods. Notice of the application shall be served by the applicant on the Commissioner prior to the hearing of the application. The Commissioner shall be entitled to appear at the hearing of the application as respondent and may be represented at the hearing either by an inspector appointed by him or by counsel or solicitor.

Consumer Affairs Act and Another Act Amendment Act 1982, No . 13 133 (b) If, in the proceeding upon the application- (i) the Magistrate is satisfied that the goods or any of them are goods or goods of a class or description in respect of which an order under section 39A has been made he may order the forfeiture to the Crown of all or any of the goods; (ii) the Magistrate is satisfied that the goods or any of them are not goods or goods of a class or description in respect of which an order under section 39A has been made, he may order the delivery of those goods or any of them to the person named in the order. (c) Upon the expiration of 28 days after the date of seizure of goods pursuant to section 39A, if no application for the delivery of the goods has been duly made, the goods shall be forfeited to the Crown. Where an application for delivery of those goods has been duly made under paragraph (a) but has been withdrawn before it is heard then upon- (i) the withdrawal of the application; or (ii) the expiration of 28 days after the date of seizure of the goods, whichever is the later, the goods shall be forfeited to the Crown. (4) Upon a court making an order for the forfeiture of any goods or upon the forfeiture of any goods pursuant to subsection (3) (c), the goods the subject of the order or to which that subsection applies shall become the property of the Crown and shall be disposed of in such manner as the Minister directs.". 18. New s. 39D . The Principal Act is amended by inserting after section 39c the following section:- " 39D. Retailers of specified goods to display warning notice. (1) A person who in the ordinary course of trade or business in any premises or place sells prescribed goods or goods of a prescribed class or description to consumers shall keep exhibited at the premises or place, in a position directed by an inspector or, in the absence of a direction, in a position so that it can be easily read by every person who attends at the premises or place, a prescribed notice and shall maintain the same in a legible condition. (2) The Governor in Council may, if he considers it appropriate in the interests of the safety or for the instruction of consumers, make regulations for the purpose of subsection (1)- (a) prescribing goods or goods of a class or description; (b) prescribing the form and use of notices (including the characters, size, type and other characteristics of the words thereof) to be exhibited in respect of the prescribed goods or goods of the prescribed class or description; (c) providing that this section shall not apply to any person or class of persons specified therein. Regulations made for the purposes of this section may make different provision for different goods or different classes or descriptions of goods.

134 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 (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.". 19. New Part IVA. The Principal Act is amended by inserting after section 39D the following heading and section:- PART IVA-PROVISIONS AFFECTING MANUFACTURE AND SALE OF SHOES 39E. Admixture of weighting substances prohibited . (1) A person shall not manufacture for sale or sell shoes the soles of which consist of leather having an admixture of any weighting substance specified in the regulations. (2) A tanner or other person shall not manufacture or sell, supply or keep for use in Queensland any leather- (a) intended for use in the making of soles for shoes; and (b) having an admixture of any weighting substance specified in the regulations. (3) It is a defence to a prosecution for an offence under subsection (1) if the person charged proves that- (a) he or the person on whose behalf he sold the shoes the subject of the charge received from the person from whom the shoes were purchased or from his duly authorized agent a guarantee in writing that the soles of the shoes are not mixed, comprised or constituted as charged in the complaint; (b) he had no reason to believe that the sole was mixed, comprised or constituted as charged in the complaint; and (c) he sold the shoes in the same state as when he or the person on whose behalf he sold them bought them. (4) (a) A person shall not give a guarantee referred to in subsection (3) which is false in any material particular. (b) It is a defence to a prosecution for an offence under paragraph (a) if the person charged proves that when he gave the guarantee the subject of the charge he had reason to believe and did believe that the statement or descriptions contained therein were true.". 20. Amendment of s. 44 . Penalties . Section 44 of the Principal Act is amended by inserting after subsection (3) the following subsection:- "(3A) Where a person is convicted of an offence against this Act in respect of a trade description of goods, the court before which he is convicted, in addition to any penalty or punishment it imposes may order the forfeiture to the Crown of all or any of the goods and other things by means of or in relation to which the offence was committed whereupon those goods and other things shall become the property of the Crown and shall be disposed of in such manner as the Minister directs.".

Consumer Affairs Act and Another Act Amendment Act 1982 , No. 13 135 21. Amendment of s. 46 . Evidentiary provisions . Section 46 of the Principal Act is amended by- (a) after paragraph (b) inserting the following paragraph: " (bi) it shall not be necessary to prove the appointment of an inspector or the authority of an inspector to do any act or to give any direction or to take any proceeding, but this shall not prejudice the right of the defendant to prove the extent of such authority;"; (b) after paragraph (c), inserting the following expression and words:- (d) a person who manufactures shoes shall, until the contrary is proved, be deemed to manufacture them for sale; (e) a writing purporting to be issued by or on behalf of an association, institution or body that has set a standard in question and purporting to set out or describe the standard shall, in the absence of evidence to the contrary, be sufficient proof that the standard set out or described therein is the appropriate standard for the time being in force; (f) the production of a Gazette in which is published an order made under section 39A shall be evidence and, in the absence of evidence to the contrary, conclusive evidence that the sale of the goods or goods of the class or description specified or referred to therein has been prohibited or, as the case may be, been allowed as provided therein and of the matters contained in the order ". 22. Amendment of s. 48 . Powers of inspectors . Section 48 of the Principal Act is amended in subsection (1) by- (a) in paragraph (a), in provision (i) inserting after the word " manufactured " the words " , assembled "; (b) in paragraph (e), in provision (iii) omitting the word " paying " and substituting the words " upon payment or tendering of ". 23. Amendment of s. 51. Regulations . Section 51 of the Principal Act is amended by- (a) in subsection (1), inserting after paragraph (d) the following paragraphs:- (di) the materials of which and the manner in which shanks, not consisting of solid leather, used in the soles of shoes may be manufactured and used ; (dii) the weighting substances the admixture of which in leather forming part of the soles of shoes is prohibited; (diii) matters and things that are not to be included in trade descriptions of goods generally or of goods of a class or description specified or referred to in the regulations; (div) the form and manner in which trade descriptions shall be appended to goods of a specified class or type;

136 Consumer Affairs Act and Another Act Amendment Act 1982, No. 13 (dv) the trade description to be appended to goods of a specified class or type or any portion thereof to contain- (i) such particulars as are prescribed relating to the quality, purity or weight of the goods or portion thereof or relating to the material (including the properties thereof) of which the goods or portions thereof are composed; (ii) such warnings or instructions as are prescribed or as are of a nature prescribed, being directed to the protection of the person of the user of the goods; (dvi) the class or classes of and the style of print or type for stamps and labels for use on furniture and the manner of stamping or labelling furniture and the particulars that are to be, that may be or that are not to be included on those stamps and labels;"; (b) omitting subsection (2) and (3) and substituting the following subsections:- " (2) The regulations may adopt, wholly or in part and either by way of reference or by way of express specification therein, any of the standard rules, codes or specifications of the bodies known as the Standards Association of Australia, the British Standards Institution or a like body identified in the regulations. (3) Regulations may be made to apply generally throughout the State or within any locality in the State or with respect to any class of person, matter or thing to apply generally or to be of such limited application as is indicated therein.". PART 111-AMENDMENTS OF FACTORIES AND SHOPS ACT 1960-1975 24. Citation . (1) In this Part the Factories and Shops Act 1960-1975 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Factories and Shops Act 1960-1982. 25. Amendment of s. 3 . Parts of this Act. Section 3 of the Principal Act is amended by- (a) omitting the words " PART IX-MARKING OF FURNITURE (SS. 65-73); "; (b) omitting the words " PART X-TRA'.)E DESCRIPTIONS (ss. 74-83);". 26. Amendment of s. 5 . Section 5 of the Principal Act is amended in subsection (1) by omitting each of the terms "Advertisement ", " Back lining ", " False trade description ", " Fibre ", " Furniture ", " Leather goods ", " Shoes ", " Sock lining ", " Sole ", " specialty animal fibre ", " Textile Goods ", " Trade description ", " Upper " and " Wool " and their respective meanings.

Consumer Affairs Act and Another Act Amendment Act 1982 , No. 13 137 27. Repeal of Part IX . Marking of furniture . The Principal Act is amended by omitting Part IX comprising sections 65 to 73, both inclusive, and the heading to that Part. 28. Repeal of Part X. Trade descriptions . The Principal Act is amended by omitting Part X comprising sections 74 to 83, both inclusive, and the heading to that Part.