Fair Trading Regulation 2012 (NSW)

Part 1Preliminary1Name of Regulation

This Regulation is the Fair Trading Regulation 2012.

2Commencement

This Regulation commences on 1 September 2012 and is required to be published on the NSW legislation website.

Note—

This Regulation replaces the Fair Trading Regulation 2007 which is repealed on 1 September 2012 by section 10 (2) of the Subordinate Legislation Act 1989.

3Definition(1)

In this Regulation:

the Act means the Fair Trading Act 1987.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2)

Notes included in this Regulation do not form part of this Regulation.

4Compliance with specification

For the purposes of this Regulation, goods do not fail to comply with a standard referred to in a Division relating to those goods merely because they do not comply with a provision of the standard:

• (a)

  that is expressed to be a recommendation, or

• (b)

  in relation to which the word “should” or “preferably” is used to indicate that the provision is of an advisory nature only.

Part 2Product information standardsDivision 1Preliminary5

(Repealed)

Division 2Fibre content labelling of textile products6Definitions

In this Division:

AS/NZS 2392 means the Australian/New Zealand Standard entitled AS/NZS 2392:1999, Textiles—Labelling of clothing, household textiles and furnishings, as published jointly by Standards Australia and Standards New Zealand on 5 July 1999.

AS/NZS 2450 means the Australian/New Zealand Standard entitled AS/NZS 2450:1994, Textiles—Natural and man-made fibres—Generic names, as published jointly by Standards Australia and Standards New Zealand on 17 October 1994.

AS/NZS 2622 means the Australian/New Zealand Standard entitled AS/NZS 2622:1996, Textile products—Fibre content labelling, as published jointly by Standards Australia and Standards New Zealand on 5 September 1996.

textile product has the same meaning as it has in Clause 5.3 of AS/NZS 2622.

7Product information standard

The product information standard for textile products is that they must comply with AS/NZS 2622.

8Form of information

The label in which is contained any statement required for a textile product by AS/NZS 2622 must comply with AS/NZS 2392 and AS/NZS 2450.

Division 3Fuel price signs9Definitions

In this Division:

biodiesel, biodiesel blend, diesel fuel, E10, ethanol, petrol and petrol-ethanol blend have the same meanings as in the Biofuels Act 2007.

consent authority, development application and development consent have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

diesel means diesel fuel other than biodiesel blend.

lpg means liquefied petroleum gas.

prescribed fuel, service station, service station operator and standard retail price have the same meanings as in section 58 of the Act.

type of prescribed fuel means a kind of prescribed fuel specified in an order under section 58 of the Act.

10Product information standard

The product information standard for prescribed fuel supplied to retail customers at a service station is that information in relation to the types of prescribed fuel so supplied at the service station must be displayed in accordance with the requirements of clauses 11 and 12.

11Product information standard(1)

The price of prescribed fuel supplied to retail customers at the service station must be displayed at the service station on one or more signs that are so positioned and lit that any price and other matter that the signs display will be readily seen by motorists approaching the service station at any time that the service station is open for business for the supply of prescribed fuel.

(2)

All signs at the service station (including signs required by subclause (1)) that display information in relation to the price of prescribed fuel supplied to retail customers at the service station may display only the standard retail price of the prescribed fuel and no other price for that fuel.

(3)

If no more than 4 types of prescribed fuel are supplied to retail customers at the service station, subclause (1) applies to each type of prescribed fuel supplied.

(4)

If more than 4 types of prescribed fuel are supplied to retail customers at the service station:

• (a)

  the price of 4 types of prescribed fuel must be displayed as required by subclause (1), and

• (b)

  the 4 types of prescribed fuel for which the price must be displayed must include such of the following types of prescribed fuel as are supplied to retail customers at the service station:

  • (i)

    diesel,

  • (ii)

    lpg,

  • (iii)

    E10.

(5)

Nothing in subclauses (1)–(4) prevent:

• (a)

  the standard retail price of other types of prescribed fuel supplied to retail customers at the service station from being displayed on signs required by subclause (1) in addition to the information required to be displayed on those signs, or

• (b)

  the prices of types of prescribed fuel from being displayed in any order on a sign at the service station, or

• (c)

  any sign at the service station containing information about discounts and special offers so long as the price of any type of prescribed fuel shown on the sign is the standard retail price of the fuel.

(6)

(Repealed)

12Octane rating information(1)

The octane rating of each of the following types of prescribed fuel supplied to retail customers at the service station by means of a fuel pump at the service station must be displayed in one or more places on the fuel pump so as to be readily seen by a person while using any of the fuel dispensers at that fuel pump:

• (a)

  E10,

• (b)

  each type of unleaded petrol.

(2)

The octane rating is the research octane number for the type of prescribed fuel rounded down to the next whole number and, in the case of a blend of petrol, is for the whole of the blend.

(3)

Octane rating of a prescribed fuel may be displayed by displaying a brand name that includes the octane rating number of the prescribed fuel.

13Planning restriction not affected

The product information standard specified in clause 10:

• (a)

  is subject to any requirement imposed by or under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993, including a requirement to obtain development consent, an approval or some other form of authorisation and any conditions of such a development consent, approval or authorisation, and

• (b)

  does not apply to the extent that any such development consent, approval or authorisation is required if the development consent, approval or authorisation has been applied for but has been refused, and

• (c)

  does not apply to the extent that compliance with the information standard would be inconsistent with a prohibition imposed by or under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993.

14Savings and transitional provision

Until 1 September 2013, a person is taken to comply with the requirements of clause 10 if the person complies with the requirements of clause 99 of the Fair Trading Regulation 2007 as in force immediately before its repeal.

Part 3Other information standardsDivision 1Employment placement services15Information standard for employment placement services(1)

For the purposes of section 50 of the Act, the requirements of this clause are prescribed as an information standard for employment placement services.

(2)

A person who provides employment placement services must, before providing those services to a person seeking employment (a job seeker), give the job seeker a written notice that sets out the following statements:

• (a)

  A person who provides employment placement services must not charge a job seeker a fee for the purpose of finding the job seeker employment.

• (b)

  A person who provides employment placement services must not engage in misleading or deceptive conduct (such as advertising a position as being available when the person knows no such position exists or knowingly giving misleading information to a job seeker about the nature of a position).

• (c)

  If a job seeker believes that a person has acted inappropriately in the course of providing employment placement services, the job seeker may contact the Office of Fair Trading for information on possible action that may be taken.

Division 2Funeral goods and services16Information standard for funeral goods and services

For the purposes of section 55 of the Act, the requirements of this Division are prescribed as an information standard for funeral goods and services.

17Application of Division

This Division applies to the supply of funeral goods and services for the arrangement and conduct of a funeral service, including:

• (a)

  the supply of goods to a consumer in connection with the burial or cremation of a body, and

• (b)

  the care, transport and preparation of the body prior to burial or cremation.

18Definitions

In this Division:

basic funeral means a funeral comprising only the following funeral goods and services:

• (a)

  the obtaining of a standard death certificate from the Registrar of Births, Deaths and Marriages if requested by the consumer,

• (b)

  the arrangement and conduct of a funeral service, at either the premises of the supplier or at the place of burial or cremation of a body, to take place between the hours of 8 am and 5 pm on a weekday,

• (c)

  the transport of the body to any of the following places as required where no individual journey is further than 30 kilometres:

  • (i)

    the premises of a supplier of funeral goods and services,

  • (ii)

    a mortuary,

  • (iii)

    the place at which the body is to be buried or cremated,

• (d)

  the storage of the body at a mortuary or holding room,

• (e)

  the preparation at a mortuary for burial or cremation of the body, not including preparation for the viewing or embalming of the body,

• (f)

  the supply of the least expensive coffin that the supplier of funeral goods or services has available,

• (g)

  the collection of certificates or permits provided by a medical practitioner in relation to the body,

• (h)

  the burial or cremation of the body.

basic funeral notice means a written statement listing the following:

• (a)

  each of the funeral goods and services that comprise a basic funeral and the cost of each,

• (b)

  each of the necessary disbursements and a reasonable estimate of the amount of each.

body means the body of a dead person.

mortuary means premises that are used, or intended to be used, for the preparation or storage of bodies as part of the arrangements for their burial or cremation, but does not include any premises (such as a hospital) in which bodies may be temporarily stored pending their transfer to a mortuary.

necessary disbursements for a burial or cremation means disbursements in relation to:

• (a)

  any fees charged by a medical practitioner in respect of certificates or permits provided by the practitioner, and

• (b)

  any fees charged by a cemetery or crematorium.

prospective consumer means a person who indicates to a supplier of funeral goods and services that he or she is, or might be, interested in purchasing funeral goods and services from the supplier.

19Information to prospective consumers(1)

A supplier of funeral goods and services who receives a request from a person to provide information about the cost of particular funeral goods and services offered by the supplier must, within 48 hours after receiving the request (or within such other period as is agreed between the person and the supplier), give to the person:

• (a)

  a basic funeral notice if the supplier ordinarily offers a basic funeral to consumers, and

• (b)

  a written statement listing the following in relation to the particular funeral goods and services specified by the person if those goods and services are not for a basic funeral:

  • (i)

    the cost of each of the funeral goods and services,

  • (ii)

    each of the necessary disbursements for the burial or cremation and a reasonable estimate of the amount of each,

  • (iii)

    any other disbursements that would be likely to be made by the supplier and a reasonable estimate of the amount of each.

(2)

Before entering into an agreement for the supply of funeral goods and services, a supplier of funeral goods and services must give to the consumer entering into the agreement:

• (a)

  a basic funeral notice if the supplier ordinarily offers a basic funeral to consumers, and

• (b)

  the following information if the agreement is not for the provision of a basic funeral:

  • (i)

    each of the funeral goods and services that are to be supplied to the consumer under the agreement and the cost of each,

  • (ii)

    each of the necessary disbursements for the burial or cremation and a reasonable estimate of the amount of each,

  • (iii)

    any other disbursements that are likely to be made by the supplier and a reasonable estimate of the amount of each.

(3)

A supplier of funeral goods and services is not required to give any notice or information under subclause (2) to a person if the same notice or information has already been given by the supplier to the person in accordance with subclause (1).

20Information on final account(1)

Before accepting final payment under an agreement for the supply of funeral goods and services to a consumer, the supplier of the funeral goods and services must give to the consumer a written statement listing the following:

• (a)

  each of the funeral goods and services supplied to the consumer under the agreement and the cost of each,

• (b)

  each of the necessary disbursements for the burial or cremation and the amount of each,

• (c)

  any other disbursements made by the supplier and the amount of each,

• (d)

  the total amount payable for the supply of the funeral goods and services under the agreement.

(2)

This clause applies only in relation to contracts entered into on or after 1 February 2009.

Note—

Clause 20 (1) was carried over from the former Fair Trading Regulation 2007. 1 February 2009 was the date on which the clause was originally made.

Part 4Industry code for motor vehicle insurers and repairers21Declaration of industry code of conduct in relation to motor vehicle insurers and repairers(1)

For the purpose of section 53 (1) of the Act, the code published in Gazette No 81 on 21 July 2017 at pages 4192–4216 (referred to in this Part as the published code) is declared to be an applicable industry code of conduct.

(2)

For the purpose of section 53 (2) (a) of the Act, the following classes of motor vehicles are excluded from the application of the provisions of the applicable industry code of conduct relating to the repair of any such motor vehicles that are or may be damaged:

• (a)

  motor vehicles owned or used by the repairer,

• (b)

  motor vehicles not registered in New South Wales, except when repaired in New South Wales.

(3)

For the purpose of section 53 (2) (b) of the Act, any provisions of the published code in so far as they relate to:

• (a)

  the code or its application being voluntary, or

• (b)

  the signatories to the code and the process by which the signatories are bound, or

• (c)

  any other incidental matters,

are excluded and the declaration under subclause (1) does not apply to those provisions.

22Savings and transitional provisions(1)

The applicable industry code of conduct applies to a dispute between an insurer and repairer with respect to a motor vehicle insurance policy, even if the policy was entered into before the relevant provisions of the code took effect.

(2)

The applicable industry code of conduct applies to damage to a motor vehicle covered by a motor vehicle insurance policy, even if the policy was entered into before the relevant provisions of the code took effect.

Part 5Miscellaneous23Delegation by Secretary

For the purposes of section 8 (1) (i) of the Act, section 83A of the Gas Supply Act 1996 is a prescribed provision of a prescribed Act.

23AExceptions to gift card expiry date requirements(1)

For the purposes of section 58M (3) (a) of the Act, Part 4B of the Act does not apply to any of the following classes of gift cards:

• (a)

  an ATM card, charge card, credit card or debit card,

• (b)

  a reloadable prepaid card,

• (c)

  a non-reloadable prepaid card that is sold during the period commencing on 31 March 2018 and ending at the end of 30 September 2018,

• (d)

  a card or voucher redeemable only for phone credit, internet access or any other utility,

• (e)

  a card or voucher supplied in substitution for goods returned to the supplier of the goods,

• (f)

  a card or voucher supplied as part of a customer loyalty or employee rewards program,

• (g)

  a card or voucher supplied as part of a temporary marketing promotion to the purchaser of goods or services in connection with the purchase of the goods or services,

• (h)

  a card or voucher sold for use in a fundraising appeal within the meaning of the Charitable Fundraising Act 1991,

• (i)

  a card or voucher the use of which is subject to the following conditions:

  • (i)

    the card or voucher is redeemable only for a particular good or service available for a limited period (such as entry to an exhibition or a live performance),

  • (ii)

    the card or voucher expires at the end of that period,

• (j)

  a card or voucher that is:

  • (i)

    redeemable only for a particular good or service, and

  • (ii)

    sold at a discount on the market value of the good or service that a reasonable person would consider to be a genuine discount on the market value of the good or service.

(2)

In this clause:

prepaid card means a prepaid card that is redeemable for goods or services through an electronic payment system under a scheme such as EFTPOS Prepaid, Visa Prepaid or MasterCard Prepaid.

24

(Repealed)

25Savings and transitional provisions(1)

Any act, matter or thing that, immediately before the repeal of the Fair Trading Regulation 2007, had effect under that Regulation continues to have effect under this Regulation.

(2)

Clause 18 (1) of Schedule 5 to the Act is to be read as if a reference to the amendment and repeal of the regulations made under section 38 of the Act includes a reference to the remaking (with or without amendment) of the regulations.

26Refund of valuers application fees(1)

The Secretary may make any arrangements that the Secretary thinks fit to refund the following amount in respect of the most recent registration application fee paid by or on behalf of a relevant valuer:

• (a)

  if the registration date of the relevant valuer is 1 March 2015 or a later date—two-thirds of the fixed component of the registration application fee paid by or on behalf of the relevant valuer,

• (b)

  if the registration date of the relevant valuer is 1 March 2014 or a later date (but not later than 28 February 2015)—one-third of the fixed component of the registration application fee paid by or on behalf the relevant valuer,

• (c)

  if the registration date of the relevant valuer is earlier than 1 March 2014—nil.

(2)

The Secretary may make any arrangements that the Secretary thinks fit to refund the whole or any part of a registration application fee if:

• (a)

  the fee was paid by or on behalf of a person who is not a relevant valuer and was for an application that had not been finally determined immediately before 1 March 2016, or

• (b)

  clause 7 of the Valuers Regulation 2010 applied to the fee immediately before 1 March 2016 and an application under that clause for the refund of the fee had not been made, or had not been finally determined, immediately before that date, or

• (c)

  the fee was paid by or on behalf of a person who died before 1 March 2016 and whose registration under the Valuers Act 2003 as a valuer had not yet been cancelled immediately before that date.

(3)

In this clause:

fixed component of a registration application fee and registration application fee have the same meanings as in clause 7 of the Valuers Regulation 2010, as in force immediately before the repeal of that Regulation.

Register has the same meaning as in the Valuers Act 2003, as in force immediately before the repeal of that Act.

registration date of a relevant valuer means the relevant valuer’s registration date, as recorded in the Register immediately before the repeal of the Valuers Act 2003.

relevant valuer has the same meaning as in Part 7 of Schedule 5 to the Act.

Schedule 1Penalty notice offences

For the purposes of section 67 of the Act:

• (a)

  each offence specified in this Schedule is an offence for which a penalty notice may be issued, and

• (b)

  the amount payable under any such penalty notice is the amount specified in this Schedule for the offence.

Column 1	Column 2
Offences under the ACL
Section 154 (2)	$550
Section 161 (1), (3) and (4)	$550
Section 164 (1) and (2)	$550
Section 165 (1)	$550
Section 167 (1)	$550
Section 169 (1)	$550
Section 170 (1)	$550
Section 171 (1)	$550
Section 172 (1) and (2)	$550
Section 173 (1)	$550
Section 174 (1) and (2)	$550
Section 175 (1)	$550
Section 176 (1)	$550
Section 177 (1)	$550
Section 178 (1)	$550
Section 179 (1)	$550
Section 180 (1)	$550
Section 181 (1) and (2)	$550
Section 182 (1) and (2)	$550
Section 183 (1)	$550
Section 188 (1)	$550
Section 189 (1)	$550
Section 190 (1)	$550
Section 191 (1)	$550
Section 192 (1)	$550
Section 193 (1)	$550
Section 194 (1), (2), (3) or (5)	$550
Section 195 (1) and (2)	$550
Section 197 (1), (2), (3) or (5)	$550
Section 198 (1) and (2)	$550
Section 199 (1) and (2)	$550
Section 201 (1)	$550
Section 203 (1), (2) or (3)	$550
Section 204 (1) and (2)	$550
Section 205 (1)	$550
Offences under the Fair Trading Act 1987 (other than the ACL)
Section 39 (1) (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010 and as continued on by clause 18 of Schedule 5 to the Act)	$550
Section 45	$550
Section 49 (1)	$550
Section 50 (3)	$550
Section 56 (1)	$550
Section 58 (4)	$550
Section 58G (1)	$550
Section 58H (1)	$550
Section 58I (1)	$550
Section 58K (1)	$550
Section 58L (7)	$550
Section 58N (1)	$550
Section 58N (2)	$550
Section 86AB (2)	$550