Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (44 of 2010)
Schedule 1 The Australian Consumer Law
Part 2 Application of the Australian Consumer Law
Trade Practices Act 1974
11 After Part X
Insert:
Part XI - The Australian Consumer Law
Division 1 - Application of the Australian Consumer Law as a law of the Commonwealth
130 Application of the Australian Consumer Law in relation to corporations
The Australian Consumer Law applies as a law of the Commonwealth to the conduct of corporations.
131 Division does not apply to financial services etc.
(1) Despite section 130, this Division does not apply to the supply, or possible supply, of services that are financial services.
(2) Despite section 130, Part 2 of the Australian Consumer Law does not apply to, or in relation to:
(a) contracts that are financial products; or
(b) contracts for the supply, or possible supply, of services that are financial services.
132 Saving of other laws and remedies
This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
Division 2 - Application of the Australian Consumer Law as a law of a State or Territory
133 Definitions
In this Division:
application law means:
(a) a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or
(b) any regulations or other legislative instrument made under a law described in paragraph (a); or
(c) the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.
applied Australian Consumer Law means (according to the context):
(a) the text described in section 135; or
(b) that text, applying as a law of a participating jurisdiction, either with or without modifications.
apply , in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:
(a) as in force from time to time; or
(b) as in force at a particular time.
Commonwealth entity means:
(a) an authority of the Commonwealth; or
(b) an officer of the Commonwealth.
imposes a duty has the meaning given by section 140.
modifications includes additions, omissions and substitutions.
officer , in relation to the Commonwealth, includes the following:
(a) a Minister;
(b) a person who holds:
(i) an office established by or under an Act; or
(ii) an appointment made under an Act; or
(iii) an appointment made by the Governor-General or a Minister but not under an Act;
(c) a person who is a member or officer of an authority of the Commonwealth;
(d) a person who is:
(i) in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or
(ii) employed or engaged under an Act.
participating jurisdiction means a participating State or participating Territory.
participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications.
participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications.
Territory means the Australian Capital Territory or the Northern Territory.
134 Object of this Division
The object of this Division is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.
135 The applied Australian Consumer Law
(1) The applied Australian Consumer Law consists of:
(a) Schedule 2; and
(b) the remaining provisions of this Act (except sections 2A, 4KB, 5, 6 and 172), so far as they relate to Schedule 2; and
(c) the regulations under this Act, so far as they relate to any provision covered by paragraph (a) or (b).
(2) For the purpose of forming part of the applied Australian Consumer Law, the provisions referred to in paragraphs (1)(b) and (c) are to be modified as necessary to fit in with Schedule 2. In particular, references to corporations are to include references to persons who are not corporations.
136 Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.
137 Exercise of jurisdiction under cross-vesting provisions
This Division does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.
138 Commonwealth consent to conferral of functions etc. on Commonwealth entities
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law.
Note: Section 140 sets out when such a law imposes a duty on a Commonwealth entity.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
139 How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 140 sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 138 to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.
(6) Subsections (1) to (5) do not limit section 138.
140 When an application law imposes a duty
For the purposes of this Division, an application law imposes a duty on a Commonwealth entity if:
(a) the law confers a function or power on the entity; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.
141 Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
142 No doubling-up of liabilities
(1) If:
(a) an act or omission is an offence against this Act and is also an offence against an application law; and
(b) the offender has been punished for the offence under the application law;
the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
Division 3 - Miscellaneous
143 References in instruments to the Australian Consumer Law
(1) A reference in any instrument to the Australian Consumer Law is a reference to:
(a) the Australian Consumer Law as applied under Division 1; and
(b) the applied Australian Consumer Laws of any or all of the participating jurisdictions.
(2) Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.