Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (44 of 2010)

Schedule 2   Enforcement and remedies under the Trade Practices Act 1974

Part 1   Pecuniary penalties

Trade Practices Act 1974

1   Before section 77

Insert:

76E Pecuniary penalties - consumer protection etc.

(1) If the Court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part IVA;

(ii) a provision of Division 1 or 1AAA of Part V (other than section 52);

(iii) subsection 65C(1) or (3), 65D(1) or 65F(8), section 65G or subsection 65Q(9), (9C) or (10) or 65R(1);

(iv) section 87ZN or 87ZO; or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person to contravene such a provision; or

(d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

(e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

(f) has conspired with others to contravene such a provision;

the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate.

(2) In determining the appropriate pecuniary penalty, the Court must have regard to all relevant matters including:

(a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and

(b) the circumstances in which the act or omission took place; and

(c) whether the person has previously been found by the Court in proceedings under Part VC or this Part to have engaged in any similar conduct.

(3) The pecuniary penalty payable under subsection (1) is not to exceed the number of penalty units worked out using the following table:

(4) If conduct constitutes a contravention of 2 or more provisions referred to in paragraph (1)(a):

(a) a proceeding may be instituted under this Act against a person in relation to the contravention of any one or more of the provisions; but

(b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

76F Pecuniary penalties under section 76E and offences

(1) The Court must not make an order under section 76E against a person in relation to either of the following matters (a consumer protection breach ):

(a) a contravention of a provision referred to in paragraph 76E(1)(a);

(b) conduct referred to in paragraph 76E(1)(b), (c), (d), (e) or (f) that relates to a contravention of a provision referred to in paragraph 76E(1)(a);

if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the consumer protection breach.

(2) Proceedings for an order under section 76E against a person in relation to a consumer protection breach are stayed if:

(a) criminal proceedings are started or have already been started against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the consumer protection breach.

The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.

(3) Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a consumer protection breach regardless of whether an order under section 76E has been made against the person in respect of the breach.

(4) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

(a) the individual previously gave the evidence or produced the documents in proceedings for an order under section 76E against the individual in relation to a consumer protection breach (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the consumer protection breach.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the order.

Note: The heading to section 76 is altered by adding at the end “ - restrictive trade practices etc. ”.