Trade Practices Amendment (Fair Trading) Act 1998
No. 36, 1998
Trade Practices Amendment (Fair Trading) Act 1998
No. 36, 1998
An Act to amend the Trade Practices Act 1974, and for related purposes
Contents
1 Short title..................................1
2 Commencement..............................1
3 Schedule(s).................................2
Schedule 1—Amendments relating to industry codes 3
Trade Practices Act 1974 3
Schedule 2—Amendments relating to unconscionable conduct 6
Trade Practices Act 1974 6
Trade Practices Amendment (Fair Trading) Act 1998
No. 36, 1998
An Act to amend the Trade Practices Act 1974, and for related purposes
[Assented to 22 April 1998]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Trade Practices Amendment (Fair Trading) Act 1998.
2 Commencement
(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
(2) Schedule 2 commences:
(a) if this Act receives Royal Assent before 1 January 1998—on 1 July 1998; or
(b) in any other case:
(i) on a day after 30 June 1998 that is fixed by Proclamation; or
(ii) on the first day after the end of the period of 6 months starting when this Act receives the Royal Assent;
whichever is earlier.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments relating to industry codes
Trade Practices Act 1974
1 After Part IVA
Insert:
Part IVB—Industry Codes
51ACA Definitions
(1) In this Part:
applicable industry code, in relation to a corporation that is a participant in an industry, means:
(a) the prescribed provisions of any mandatory industry code relating to the industry; and
(b) the prescribed provisions of any voluntary industry code that binds the corporation.
consumer, in relation to an industry, means a person to whom goods or services are or may be supplied by participants in the industry.
industry code means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.
mandatory industry code means an industry code that is declared by regulations under section 51AE to be mandatory.
voluntary industry code means an industry code that is declared by regulations under section 51AE to be voluntary.
(2) For the purposes of this Part, a voluntary industry code binds a person who has agreed, as prescribed, to be bound by the code and who has not subsequently ceased, as prescribed, to be bound by it.
(3) To avoid doubt, it is declared that:
(a) franchising is an industry for the purposes of this Part; and
(b) franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry.
51AD Contravention of industry codes
A corporation must not, in…
Overview
The Trade Practices Amendment (Fair Trading) Act 1998, enacted by the Parliament of Australia, aims to amend the Trade Practices Act 1974 to address gaps in fair trading practices. This legislation introduces two primary objectives: the regulation of industry codes and the prohibition of unconscionable conduct in business transactions. The policy objective is to enhance consumer protection and ensure fair trading practices by imposing stricter standards on corporations and individuals in their commercial dealings. This Act complements the existing framework by establishing specific rules for industry codes and providing clearer guidelines for what constitutes unconscionable conduct in business transactions, thereby fostering a fairer marketplace.
The Trade Practices Amendment (Fair Trading) Act 1998 commenced on the day it received Royal Assent, with certain provisions beginning on 1 July 1998 or a later date determined by proclamation or six months after Royal Assent. The Act amends the Trade Practices Act 1974 by introducing new sections and provisions, including the establishment of mandatory and voluntary industry codes and the criteria for determining unconscionable conduct in business dealings. These amendments are detailed in the schedules of the Act, which outline the specific changes to be made to the Trade Practices Act 1974.
Scope and Application
The Trade Practices Amendment (Fair Trading) Act 1998 is a Commonwealth Act that amends the Trade Practices Act 1974 to enhance protections for consumers and businesses in trade and commerce. The Act applies to corporations, defined as entities that are subject to the Trade Practices Act 1974, and to any person engaged in trade or commerce, particularly focusing on the conduct of corporations in business transactions. The scope of the Act extends to all industries, with specific provisions for industry codes and unconscionable conduct in business transactions. Notably, the Act does not apply to transactions involving listed public companies and excludes transactions exceeding a monetary threshold of $1,000,000 or a higher amount as prescribed. The Act's provisions are implemented through regulations that may specify industry codes and declare them as either mandatory or voluntary, thereby extending and detailing the application of the Act through subordinate instruments. The Act commenced on the day of Royal Assent, with certain provisions under Schedule 2 commencing later in 1998, depending on the timing of the Act's assent.
Key Provisions
- The Trade Practices Amendment (Fair Trading) Act 1998 (Cth) amends the Trade Practices Act 1974 (Cth) to introduce new provisions concerning industry codes and unconscionable conduct in business transactions. The primary focus of this Act is to enhance fair trading practices by imposing stricter regulations on industry codes and prohibiting unconscionable conduct in trade or commerce. The amendments are detailed in Schedule 1 and Schedule 2 of the Act, which respectively relate to industry codes and unconscionable conduct.
- Schedule 1 introduces Part IVB into the Trade Practices Act 1974, focusing on industry codes. Section 51AD mandates that corporations must not contravene any applicable industry codes in trade or commerce. An "applicable industry code" includes both mandatory and voluntary provisions of industry codes that bind a corporation. Section 51AE allows the regulations to prescribe these codes, declare them as mandatory or voluntary, and specify the method by which corporations agree to be bound by them. The schedules also integrate these new provisions into other relevant sections of the Trade Practices Act 1974, ensuring consistency across the Act.
- The obligations imposed by the Act on corporations and other entities include adherence to applicable industry codes. Corporations must ensure that their conduct complies with the prescribed provisions of both mandatory and voluntary industry codes. This involves understanding the specific requirements of the codes that apply to their industry and ensuring that all business practices align with these codes. Additionally, entities must be aware of the regulations that specify how industry codes are to be adopted and enforced.
- Violations of the Act's provisions are subject to various consequences. Section 51AD explicitly states that contraventions of applicable industry codes are prohibited. While the Act does not specify maximum penalties within its text, contraventions of industry codes can lead to enforcement actions by the Australian Competition and Consumer Commission (ACCC), which may include court proceedings. Penalties for breaches of trade practices legislation can include substantial fines for corporations, as well as orders for redress or compensation to affected parties. The severity of penalties depends on the nature and extent of the breach, with repeat offenders potentially facing increased penalties. Additionally, individuals involved in the management of corporations found in breach may also face personal penalties, including fines and disqualification from managing corporations.
- Area of Law
- Commercial Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Regulatory Standards
- Prohibited Conduct
- Reporting & Disclosure Obligations
