Untitled document

Fair Trading (Amendment) Regulations 2004

S.R. No. 36/2004

TABLE OF PROVISIONS

Regulation  Page

1.Objective

2.Authorising provision

3.Commencement

4.New regulation 8 inserted

8.Telephone marketing agreement exemptions

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STATUTORY RULES 2004

S.R. No. 36/2004

Fair Trading Act 1999

Fair Trading (Amendment) Regulations 2004

The Lieutenant-Governor as the Governor's Deputy with the advice of the Executive Council makes the following Regulations:

Dated: 11 May 2004

Responsible Minister:

JOHN LENDERS
Minister for Consumer Affairs

DIANE CASEY

Clerk of the Executive Council

1.Objective

The objective of these Regulations is to amend the Fair Trading Regulations 1999 to exempt certain classes of telephone marketing agreement from some of the provisions of Part 4 of the Fair Trading Act 1999.

2.Authorising provision

These Regulations are made under section 165 of the Fair Trading Act 1999.

3.Commencement

These Regulations come into operation on 30 August 2004.

4.New regulation 8 inserted

After regulation 7 of the Fair Trading Regulations 1999[1] insert—

"8.Telephone marketing agreement exemptions

(1)The following classes of telephone marketing agreement are exempt from the provisions of Division 2A of Part 4 of the Act—

(a)an agreement for the supply of a financial product, or a managed investment scheme, within the meaning of the Corporations Act;

Note:The hawking of certain financial products and managed investment schemes is prohibited under the Corporations Act—see sections 992A and 992AA of that Act.

(b)if an agreement for the supply of goods or services exists between a purchaser and a supplier, an agreement between the purchaser and the supplier for the supply of goods or services that are of the same kind as those supplied under the existing agreement;

Examples

An example of such an exempted agreement is where the purchaser has joined a scheme (such as a wine society or club) and agrees to allow the supplier subsequently to telephone the purchaser to offer goods or services in connection with the scheme. In such a case, the subsequent agreement for the supply of those goods or services is exempt.

An example of a telephone marketing agreement that is not for the supply of goods or services that are of the same kind as those supplied under the existing agreement is if a supplier of telecommunications services, who has an existing agreement with a purchaser for the supply of a landline telephone service, telephones the purchaser for the purpose of negotiating an agreement for the supply of a mobile telephone service or an Internet service. In such a case, the subsequent agreement for the supply of those other services is not exempt.

(c)if an agreement for the supply of goods or services exists between a purchaser and a supplier, a subsequent agreement between the purchaser and the supplier for the purposes of—

(i)maintaining the goods or services provided under the existing agreement; or

Example

The rectification of a fault in the goods supplied under the existing agreement.

(ii)making a minor change to the terms of the existing agreement.

Example

A change to the address to which payments are to be sent under an agreement for the supply of a mobile telephone service.

(2)A telephone marketing agreement for services that are supplied to a purchaser on a continuing basis is exempt from section 80 of the Act.

Example

An agreement comprising a loyalty club membership scheme that is accepted by the purchaser by the use of a membership card or discount vouchers and where the services accessed by the card or vouchers are supplied over a certain period.

(3)Sub-regulation (2) does not apply to an agreement for the supply of services that are supplied entirely on a one-off basis or are capable of being wholly supplied during the cooling-off period under section 67H(1) of the Act.

Example

The carrying out of repairs for a purchaser.

(4)A telephone marketing agreement for the supply of classified advertising is exempt from sections 67E and 67H of the Act if the agreement entitles the purchaser to cancel the agreement at any time until the expiry of the publication deadline by telephoning the supplier or the person acting on behalf of the supplier.

(5)Sub-regulation (4) does not apply to an agreement for the supply of a series of classified advertisements over a period of time.

(6)A telephone marketing agreement for the supply of classified advertising is exempt from section 80 of the Act.".

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[1] Reg. 4: S.R. No. 103/1999.  Subsequently amended by S.R. Nos 162/2001 and 119/2003.