“land” includes buildings;
“market”, in relation to goods or services, means a market for the goods or services and other goods or services that are substitutable for, or otherwise competitive with, those goods or services;
“premises” includes land;
“price” includes a charge of any description;
“services” includes rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under —
(a) a contract for or in relation to —
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods;
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance;
(c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or
(d) a contract for or in relation to the lending of money,
but does not include rights or benefits being the supply of goods or the performance of work under a contract of service;
“supply” includes —
(a) in relation to goods - the supply, including the re-supply, by way of sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services - provide, grant or confer;
“trade or commerce” includes any business or professional activity;
“trader” means a person who, in the course of business —
(a) supplies, or offers to supply, goods or services; or
(b) sells or lets, or offers to sell or let, premises.
(2) In this Act, a reference to the supply of goods or services includes the supply of goods and services.
(3) In this Act, a reference to conduct or engaging in conduct shall be read as a reference to doing or refusing to do an act including —
(a) making or giving effect to a provision of a contract or arrangement;
(b) arriving at, or giving effect to, an understanding; or
(c) requiring to be given or giving a covenant.
(4) In this Act, a reference to refusing to do an act includes a reference to —
(a) refraining, otherwise than inadvertently, from doing the act; or
(b) making it known that the act will not be done.
(5) In this Act, a reference to a person offering to do an act or to do an act on a condition, includes a reference to the person making it known that the person will accept an application, offer or a proposal for the person to do the act or to do it on that condition.
Application of provisions rendering contracts etc, unenforceable
4. (1) Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, the provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that —
(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract or the covenant will not, or may not have, that effect at a later time.
(2) This section does not apply to a contract or covenant entered into before the commencement day.
Consumers
5. (1) For the purposes of this Act, unless the contrary intention appears —
(a) a person shall be taken to have acquired particular goods as a consumer if, and only if —
(i) the price of the goods did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount, the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption or the goods consisted of a commercial road vehicle,
and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and
(b) a person shall be taken to have acquired particular services as a consumer if, and only if —
(i) the price of the services did not exceed the prescribed amount; or
(ii) where that price exceeded the prescribed amount, the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
(2) For the purposes of subsection (1) —
(a) the prescribed amount is $40,000 or, if a greater amount is prescribed by regulation, the greater amount;
(b) subject to paragraph (c), the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services;
(c) where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been —
(i) the price at which, at the time of acquisition, the person could have purchased from the supplier the goods or services without the other property or services;
(ii) if, at the time of acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services, the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if, at the time of acquisition, goods or services of the kind acquired were not available for purchase from a supplier except together with other property or services, the value of the goods or services at that time;
(d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been —
(i) the price at which, at the time of acquisition, the person could have purchased the goods or services from the supplier;
(ii) if, at the time of acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier, the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(iii) if, at the time of acquisition, goods or services of the kind acquired were not available for purchase from a supplier or were not so available except together with other property or services, the value of the goods or services at that time; and
(e) without limiting the meaning of the expression “services” in section 3, the obtaining of credit by a person in connection with the acquisition of goods or services by the person shall be deemed to be the acquisition by the person of a service and an amount by which the amount paid or payable by the person for the goods or services is increased by reason of the person so obtaining credit shall be deemed to be paid or payable by the person for that service.
(3) In this section, “commercial road vehicle” includes a commercial vehicle within the meaning of the Traffic Act 2010 and a trailer acquired for use principally in the transport of goods on public roads.
Acquisition, supply and re-supply
6. In this Act, unless the contrary intention appears, a reference to —
(a) the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(b) the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;
(c) the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services or both;
(d) the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services or both; and
(e) a reference to the re-supply of goods acquired from a person includes a reference to —
(i) a supply of the goods to another person in an altered form or condition; and
(ii) a supply to another person of goods in which the first-mentioned goods have been incorporated.
References to purpose or reason
7. (1) For the purposes of this Act —
(a) a provision of a contract, arrangement or understanding shall be deemed to have had, or to have, a particular purpose if —
(i) the provision was or is to be included in the contract, arrangement or understanding or the covenant was or is required to be given for that purpose or for purposes that included or include that purpose; and
(ii) that purpose was or is a substantial purpose; and
(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if —
(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason; and
(ii) that purpose or reason was or is a substantial purpose or reason.
(2) In this section, a reference to a contract, arrangement or understanding includes a reference to a proposed contract, arrangement or understanding and a reference to a covenant includes a reference to a proposed covenant.
Leases and licences of land
8. In this Act, a reference to —
(a) a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such a lease or licence;
(b) making or entering into a contract, in relation to a lease or licence referred to in paragraph (a), shall be read as a reference to granting or taking the lease or licence; and
(c) a party to a contract, in relation to a lease or licence referred to in paragraph (a), shall be read as including a reference to a person bound by, or entitled to the benefit of, a provision contained in the lease or licence.
Loss or damage to include injury
9. In this Act —
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury to a person or property; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury to a person or property.
Severability
10. If the making of a contract after the commencement day contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to an order made under section 42, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision insofar as that provision is severable.
Representations
11. (1) For the purposes of this Act, where a person makes an inaccurate representation with respect to a future matter, including the doing of, or the refusing to do, an act, the representation shall be taken to be misleading unless the person has reasonable grounds for making the representation.
(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a person with respect to a future matter, the person shall, unless the person adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3) Subsection (1) shall not limit the meaning of a reference in this Act to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
Application of Act
12. This Act applies to and in relation to transactions that take place, conduct that occurs, and representations that are made within Norfolk Island, whether wholly or partly.
Act to bind Crown
13. This Act binds the Crown in right of Norfolk Island.
PART 2 — FAIR TRADING
Misleading or deceptive conduct
14. (1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in this Act shall be taken as limiting by implication the generality of subsection (1).
Unconscionable conduct
15. (1) A person shall not, in trade or commerce, in connection with the supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.
(2) Without limiting the matters to which a court may have regard for the purposes of determining whether a person has contravened subsection (1) in connection with the supply of goods or services to another person (in this subsection referred to as the “consumer”), the court may have regard to —
(a) the relative strengths of the bargaining positions of the person and the consumer;
(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the person;
(c) whether the consumer was able to understand any documents relating to the supply of the goods or services;
(d) whether undue influence or pressure was exerted on, or unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the person or a person acting on behalf of the person in relation to the supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a source other than the person.
(3) A person shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply of goods or services to another person by reason only that the other person —
(a) institutes legal proceedings in relation to the supply; or
(b) refers a dispute or claim in relation to the supply to arbitration.
(4) For the purposes of determining whether a person has contravened subsection (1) in connection with the supply of goods or services to another person —
(a) a court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) a court may have regard to conduct engaged in, or circumstances existing, before the commencement day.
(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply of goods does not include a reference to the supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.
(7) A reference in this section to the supply of goods or services, or goods and services, includes the possible supply of goods or services or both.
False or misleading representations
16. A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services —
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
(b) falsely represent that services are of a particular standard, quality, value or grade;
(c) falsely represent that goods are new;
(d) falsely represent that a particular person has agreed to acquire goods or services;
(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(f) represent that the person has a sponsorship, approval or affiliation he or she does not have;
(g) make a false or misleading representation with respect to the price of goods or services;
(h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods;
(j) make a false or misleading representation concerning the place of origin of goods;
(k) make a false or misleading representation concerning the need for any goods or services; or
(m) make a false or misleading representation concerning the existence, exclusion or effect of a condition, warranty, guarantee, right or remedy.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
False representations etc, in relation to land
17. (1) A person shall not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land —
(a) represent that the person has a sponsorship, approval or affiliation that the person does not have;
(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for it, its location, its characteristics, the use to which it is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; or
(c) offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.
(2) A person shall not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land.
(3) Nothing in this section shall be taken to imply that other provisions of this Part do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
(4) In this section, “interest”, in relation to land, means —
(a) a legal or equitable estate or interest in the land;
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares or a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Offering gifts and prizes
18. A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Misleading conduct in relation to goods
19. A person shall not, in trade or commerce, engage in conduct that is likely to mislead the public as to the nature, manufacturing process, characteristics, suitability for their purpose or quantity of goods.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Certain misleading conduct in relation to services
20. A person shall not, in trade or commerce, engage in conduct that is likely to mislead the public as to the nature, characteristics, suitability for their purpose or quantity of services.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Cash price to be specified
21. A person shall not, in trade or commerce, in connection with —
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply of goods or services,
makes a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services, unless the person also specifies the cash price for the goods or services in the representation.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Bait advertising
22. (1) A person shall not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which the person is aware or ought reasonably to be aware, for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
(2) A person who has, in trade or commerce, advertised goods or services for supply at a specified price shall offer those goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.
(3) In a prosecution of a person in relation to a failure to offer goods or services to another person (in this subsection referred to as the “consumer”) in accordance with subsection (2), it is a defence if the person establishes that —
(a) the person offered to supply, or to procure someone else to supply, goods or services of the kind advertised to the consumer within a reasonable time, in a reasonable quantity and at the advertised price; or
(b) the person offered to supply immediately, or to procure someone else to supply, within a reasonable time, equivalent goods or services to the consumer in a reasonable quantity and at the price at which the first-mentioned goods or services were advertised,
and, in either case, where the offer was accepted by the consumer, the person has so supplied or procured someone else to supply the goods or services.
Referral selling
23. (1) A person shall not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a referral selling benefit if receipt of that benefit is contingent on an event occurring after that contract is made.
(2) In this section —
“referral selling benefit” means a rebate, commission or other benefit given to a consumer in return for the consumer —
(a) giving the person the names of prospective customers; or
(b) otherwise assisting the person to supply goods or services to other consumers.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Accepting payment without intent or ability to supply
24. A person shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance —
(a) the person intends —
(i) not to supply the goods or services; or
(ii) to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted; or
(b) there are reasonable grounds, of which the person is aware or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Misleading statements about certain business activities
25. (1) A person shall not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of a business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from a person’s place of residence.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
(2) Where a person, in trade or commerce, invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring —
(a) the performance of work by the other persons concerned; or
(b) the investment of money by the other persons concerned and the performance by them of work associated with the investment,
the person shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Harassment and coercion
26. A person shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
Unsolicited credit and debit cards
27. (1) A person shall not send a prescribed card to another person except —
(a) in pursuance of a request in writing by the person who will be under a liability to the person who issued the card in respect of the use of the card;
(b) where there already exists a credit account or trading account relationship between that person and the other person; or
(c) in renewal or replacement of, or in substitution for —
(i) a prescribed card of the same kind previously sent to that other person in pursuance of a request in writing by the person who was under a liability to the person who issued the card previously so sent in respect of the use of that card; or
(ii) a prescribed card of the same kind previously sent to that other person and used for a purpose for which it was intended to be used.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
(2) Subsection (1) applies only in relation to the sending of a prescribed card by or on behalf of the person who issued the card.
(3) A person shall not take an action that enables another person who has a prescribed card to use the card as a credit card or a debit card except in accordance with a request in writing by that other person.
Penalty: In the case of a natural person — 50 penalty units.
In the case of a body corporate — 100 penalty units.
(4) In this section —
“article” includes a token, card or document;
“credit card” means an article of a kind commonly known as a credit card or a similar article intended for use in obtaining cash, goods or services on credit and includes an article of a kind commonly issued by persons carrying on business to customers or prospective customers for use in obtaining goods or services from those persons on credit;
“debit card” means an article intended for use by a person in obtaining access to an account held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services;
“prescribed card” means a credit card, a debit card or an article that may be used as a credit card and a debit card.
Prescribed information providers
28. (1) Nothing in section 14, 16, 17, 19, 20 or 25 applies to a prescribed publication of matter by a prescribed information provider, other than —
(a) a publication of matter in connection with —
(i) the supply or possible supply of goods or services;
(ii) the sale or grant, or possible sale or grant, of interests in land;
(iii) the promotion by any means of the supply or use of goods or services;
(iv) the promotion by any means of the sale or grant of interests in land,
where —
(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider;
(vi) the publication was made on behalf of, or in pursuance of a contract, arrangement or understanding with —
(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if —
(a) in any case, the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or
(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of “prescribed information provider” in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition), the publication was by way of a radio or television broadcast by the prescribed information provider.
(3) In this section —
“prescribed information provider” means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes —
(a) the holder of a licence granted under the Broadcasting Services Act 1992;
(b) a person who is the provider of a broadcasting service under a class licence under that Act;
(c) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting Corporation; and
(e) the Special Broadcasting Service;
“relevant goods or services”, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider;
“relevant interests in land”, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
PART 3 — ENFORCEMENT AND REMEDIES
Division 1 — Preliminary
Interpretation
29. A reference in this Part to a person involved in a contravention of this Act shall be read as a reference to a person who has —
(a) aided, abetted, counselled or procured the contravention;
(b) induced, whether by threats or promises or otherwise, the contravention;
(c) been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) conspired with others to effect the contravention.
Division 2 — Authorised Officers
Appointment of authorised officers
30. (1) The Minister may, in writing, appoint a person to be an authorised officer for the purposes of this Act.
(2) A member of the Police Force is, by force of this section, an authorised officer.
Certificate of appointment
31. (1) The Minister shall issue to an authorised officer a certificate of appointment.
(2) A person who ceases to be an authorised officer shall return the certificate of appointment to the Minister as soon as practicable.
Penalty for an offence
against this subsection: 2 penalty units.
Powers of authorised officers to enter, etc
32. (1) An authorised officer may, at all reasonable times subject to subsection (2), do any or all of the following —
(a) enter a place where the authorised officer knows or reasonably believes that a person is engaging or has engaged in conduct that constitutes, or may constitute, a contravention of this Act;
(b) in a place lawfully entered —
(i) search for, examine, take possession of or make copies of or extracts from invoices, documents or other records relating to goods or services supplied or to be supplied;
(ii) search for goods and examine goods;
(iii) open a package that the authorised officer knows or reasonably suspects to contain goods; or
(iv) question, with respect to matters with which this Act is concerned, a person employed in the place;
(c) make such inquiries as the authorised officer believes to be necessary in relation to the exercise of his or her powers under this Act.
(2) An authorised officer shall not enter a place unless he or she —
(a) has the permission of the proprietor or manager of the place; or
(b) has first obtained a warrant.
Powers of authorised officers to require invoices, etc
33. (1) Where an authorised officer has reason to believe that a person possesses an invoice, record or other document relevant to a matter under this Act, the authorised officer may request the person to deliver it or a copy of it as directed.
(2) A requisition under subsection (1) may specify that the document or copy to which it relates is to be delivered at a place and within the time specified in the requisition.
Obstruction etc, of authorised officer
34. (1) A person shall not —
(a) assault, resist, impede or obstruct an authorised officer in the exercise of any powers under section 32 or 33 or attempt to do so; or
(b) use threatening, abusive or insulting language to an authorised officer engaged in the exercise of any powers under section 32 or 33 or to any person assisting an authorised officer who is so engaged; or
(c) fail to comply with a lawful request, direction or requisition of an authorised officer; or
(d) fail to produce to an authorised officer any invoice, document or record relevant to the provisions of the Act in the possession or at the disposal of that person when required to do so by that officer; or
(e) impersonate an authorised officer.
Penalty for an offence against
this subsection: 10 penalty units
(2) Where a person is convicted of an offence against subsection (1)(c) or (d), the Court may order that person to —
(a) comply with the lawful request, direction or requisition; or
(b) produce to an authorised officer the invoice, document or record —
which was the subject of the offence, as the case may require.
Division 3 — General provisions with respect to enforcement and remedies
Provisions relating to offences
35. (1) If an act or omission is both an offence against this Act and an offence under a law of the Commonwealth or a law in force elsewhere in Australia, a person convicted of an offence under that law is not liable to be convicted of the offence against this Act.
(2) Where a person is convicted of 2 or more offences constituted by, or relating to, contraventions of the same provision of this Act, being contraventions that appear to the Court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time (whether or not the person is also convicted of an offence or offences constituted by, or relating to, another contravention or other contraventions of that provision that were of a different nature or occurred at a different time), the Court shall not, in respect of the first-mentioned offences, impose on the person fines that, in the aggregate, exceed the maximum fine that would be applicable in respect of one offence by that person against that provision.
(3) Where —
(a) a person is convicted of an offence constituted by, or relating to, a contravention of a provision of this Act; and
(b) a fine has, or fines have, previously been imposed on the person by the Court for an offence or offences constituted by, or relating to, another contravention or other contraventions of the same provision, being a contravention that, or contraventions each of which, appears to the Court to have been of the same nature as, or of a substantially similar nature to, and to have occurred at or about the same time as, the first-mentioned contravention (whether or not a fine has, or fines have, also previously been imposed on the person for an offence or offences constituted by, or relating to, a contravention or contraventions of that provision that were of a different nature or occurred at a different time),
the Court shall not, in respect of the offence mentioned in paragraph (a), impose on the person a fine that exceeds the amount (if any) by which the maximum fine applicable in respect of that offence is greater than the amount of the fine, or the sum of the amounts of the fines, first referred to in paragraph (b).
(4) In proceedings against a person for breaching a provision of this Act, the Court may grant an injunction under section 36 against the person in relation to —
(a) the conduct that constitutes, or is alleged to constitute, the contravention; or
(b) other conduct of that kind.
Injunctions
36. (1) Where, on the application of the Minister, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute —
(a) a contravention of this Act;
(b) attempting to contravene this Act;
(c) aiding, abetting, counselling, or procuring a person to contravene this Act;
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act;
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act,
the Court may grant an injunction in such terms as the Court determines.
(2) Without prejudice to the generality of subsection (1), an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) —
(a) for a specified period; or
(b) except on specified terms and conditions.
(3) Where an application for an injunction under subsection (1) has been made, the Court may, if it thinks fit, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1).
(4) Where, in the opinion of the Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(5) The Court may rescind or vary an injunction granted under subsection (1) or (4).
(6) Where the Minister makes an application to the Court for the grant of an injunction under this section, the Court shall not, as a condition of granting an interim injunction, require the applicant or any other person to give an undertaking as to damages.
(7) Where —
(a) in a case to which subsection (6) does not apply, the Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and
(b) the Minister gives the undertaking,
the Court shall accept the undertaking and shall not require a further undertaking from any other person.
Actions for damages
37. A person who suffers loss or damage by conduct of another person that was done in contravention of this Act may recover the amount of the loss or damage by action against that other person or against another person involved in the contravention.
Findings in proceedings to be evidence
38. In a proceeding against a person under section 37 or in an application under section 41(2) for an order against a person, a finding of a fact by the Court made in proceedings under section 36 or for an offence against this Act, in which the person has been found to have contravened, or to have been involved in a contravention of, this Act is evidence of the fact and the finding may be proved by production of a document under the seal of the Court from which the finding appears.
Conduct by directors, employees or agents
39. (1) Where, in proceedings under this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of the person’s actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate —
(a) by a director, employee, or agent of the body corporate within the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) Where, in proceedings under this Act in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of the employee’s or agent’s actual or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body corporate —
(a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent,
shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.
(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.
Defences
40. (1) Subject to subsection (3), in a prosecution under this Act in relation to a contravention of this Act, it is a defence if the defendant establishes —
(a) that the contravention was due to reasonable mistake;
(b) that the contravention was due to reasonable reliance on information supplied by another person; or
(c) that —
(i) the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control; and
(ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2) In subsection (1)(b) and (c), “another person” does not include a person who at the time when the contravention occurred, was —
(a) an employee or agent of the defendant; or
(b) where a defendant is a body corporate — a director, employee or agent of the defendant.
(3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leave of the Court, entitled to rely on the defence unless he or she has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing giving information as was then in the defendant’s possession that would identify or assist in the identification of the other person.
(4) In a proceeding in relation to a contravention of this Act committed by the publication of an advertisement, it is a defence to establish that the defendant is a person whose business it is to publish or arrange for the publication of advertisements and that the defendant received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of this Act.
Other orders
41. (1) Without limiting the generality of section 36, where, in a proceeding instituted under, or for an offence against, this Act, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this subsection) in contravention of this Act, the Court may, whether or not it grants an injunction under section 36 or makes an order under section 37, make such order as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the Court considers that the order will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.
(2) Without limiting the generality of section 36, the Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this Act) in contravention of this Act or on the application of the Minister in accordance with subsection (4) on behalf of such a person or such persons, make such order as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders referred to in subsection (5)) if the Court considers that the order concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.
(3) An application may be made under subsection (2) in relation to a contravention of this Act even if a proceeding has not been instituted under another provision of this Part in relation to the contravention.
(4) Where, in a proceeding instituted for an offence against this Act, a person is found to have engaged in conduct in contravention of this Act, the Minister may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Minister shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.
(5) The orders referred to in subsections (1) and (2) are —
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void from its beginning or at all times on and after a date before the date on which the order is made as specified in the order;
(b) an order varying such a contract or arrangement in the manner specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after a date before the date on which the order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of such a contract;
(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, to refund money or return property to the person who suffered the loss or damage;
(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, to pay to the person who suffered the loss or damage, the amount of the loss or damage;
(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to repair, or provide parts for, goods that were supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage;
(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his or her own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage; and
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that —
(i) varies, or has the effect of varying, the first-mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.
(6) For the purpose of determining whether to make an order under this section in relation to a contravention of section 15, the Court may have regard to the conduct of the parties to the proceeding since the contravention occurred.
Power of Court to prohibit payment or transfer of money or other property
42. (1) Where —
(a) proceedings have been commenced against a person for an offence against this Act; or
(b) an application has been made under section 36 for an injunction against a person in relation to a contravention of this Act; or
(c) an action has been commenced under section 37 against a person in relation to a contravention of this Act; or
(d) an application for an order under section 41(2) or (4) has been or may be made against a person in relation to a contravention of this Act —
the Court may, on the application of the Minister, make an order referred to in subsection (2) if the Court is satisfied that -
(e) it is necessary or desirable to do so for the purpose of preserving money or other property held by or on behalf of a person referred to in paragraph (a), (b), (c) or (d) (in this section referred to as the “relevant person”), where the relevant person is liable or may become liable under this Act to pay money by way of a fine, damages, compensation, refund or otherwise or to transfer, sell or refund other property; and
(f) it will not unduly prejudice the rights and interests of any other person.
(2) The orders referred to in subsection (1) are —
(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;
(b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the relevant person or on behalf of an associate of the relevant person from paying all or any of the money, or transferring, or otherwise parting with possession of, the other property, to, or to another person at the direction or request of, the person on whose behalf the money or other property is held;
(c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by a person of money of the relevant person or of an associate of the relevant person to a place outside Norfolk Island;
(d) an order prohibiting, either absolutely or subject to conditions, the taking, sending, or transfer by a person of other property of the relevant person or of an associate of the relevant person to a place outside Norfolk Island; and
(e) an order appointing, where the relevant person is a natural person, a receiver or trustee of the property or of part of the property of the relevant person with such powers as are specified in the order.
(3) Subject to subsection (4), an order under this section may be expressed to operate —
(a) for a period specified in the order; or
(b) until proceedings under any other provision of this Part in relation to which the order was made have been concluded.
(4) An order under this section made in the absence of the person against whom the order is sought shall not operate for a period exceeding 30 days.
(5) A person shall not fail to comply with an order that is applicable to the person made by the Court under this section.
Penalty: In the case of a natural person — 50 penalty units; or
In the case of a body corporate — 100 penalty units.
(6) Nothing in this section affects the powers that the Court has apart from this section.
(7) A reference in this section to a person who is an associate of a relevant person is a reference to —
(a) a person holding money or other property on behalf of the relevant person; or
(b) if the relevant person is a body corporate - a wholly owned subsidiary of the relevant person.
PART 4 — GENERAL
Evidence as to publication
43. (1) In proceedings under this Act —
(a) where a published statement is intended, or apparently intended, to promote the supply or use of goods or services, or the sale or grant of an interest in land; and
(b) a name, business name, address, telephone number, post office box number, facsimile number, telex number or newspaper office reply number specified in the statement is that of a person, or the agent of a person, who —
(i) is the owner, whether alone or jointly with another person or other persons, of the goods or interest in land;
(ii) is the supplier of the goods or services;
(iii) has an interest, otherwise than as owner, in the goods; or
(iv) has an interest, otherwise than as supplier, in the supply of the services,
it shall be presumed, unless the contrary is established, that the person or agent caused the statement to be published.
(2) For the purposes of subsection (1), a person who causes a statement to be published shall be deemed to have done so on each day on which the statement is published.
Saving of rights and remedies
44. Except to the extent that this Act otherwise expressly provides, this Act does not limit, restrict, or otherwise affect a right or remedy a person would have had if this Act had not been enacted.
Delegation
45. (1) The Minister may, by instrument in writing, delegate to a person any of his or her powers and functions under this Act, other than this power of delegation.
(2) A power or function delegated under this section, when exercised or performed by the delegate, shall, for the purposes of this Act, be deemed to have been exercised or performed by the Minister.
(3) A delegation under this section does not prevent the exercise of a power or the performance of a function by the Minister.
Penalty notes for certain offences
46. (1) Where it appears to an authorised officer that a person has committed an offence prescribed for the purposes of this section, the authorised officer may serve a notice on the apparent offender to the effect that to avoid having the matter determined by the Court, the person served may pay to the Administration within the time specified in the notice the amount of the penalty prescribed for the offence if dealt with under this section.
(2) A notice under subsection (1) may be served personally or by post.
(3) A person alleged to have committed an offence to which subsection (1) applies has the right to decline to be dealt with under this section.
(4) A person who fails to pay the amount of a penalty within the time specified in the notice given to the person under subsection (1) or within such further time as the Minister may, in a particular case, allow, shall be deemed to have declined to be dealt with under this section.
(5) Subject to subsection (6), where the amount of a penalty prescribed for an alleged offence is paid by a person in pursuance of this section, the person is not liable to further proceedings for the alleged offence.
(6) Payment of the amount of a penalty in pursuance of this section shall not be regarded as an admission of liability for the purpose of, or in any way affect or prejudice, a civil claim, action or proceeding arising out of the same occurrence.
(7) The Regulations may prescribe an offence for the purposes of this section by setting out the offence or by a reference to the provision of this Act or the Regulations creating the offence.
(8) An amount of penalty prescribed under this section for an offence shall not exceed a maximum amount of penalty that could be imposed for the offence by the Court.
(9) A notice referred to in this section shall be in a form approved by the Minister.
(10) This section shall be construed as supplementing, and not as derogating from, any other provision of this Act or the Regulations.
Regulations
47. (1) The Administrator may make Regulations, not inconsistent with this Act, prescribing all matters —
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting the generality of subsection (1), the Regulations may prescribe penalties not exceeding 20 penalty units for a contravention or breach of the Regulations.
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NOTES
The Fair Trading Act 1995 as shown in this consolidation comprises Act No. 2 of 1995 and amendments as indicated in the Tables below.
Enactment | Number and year | Date of commencement | Application saving or transitional provision |
Fair Trading Act 1995 | 2, 1995 | 27.4.95 | |
| | | |
Interpretation (Amendment) Act 2012 [to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member] | 14, 2012 | 28.12.12 | | |
| | | |
| | | | |
Table of Amendments
ad = added or inserted | am = amended | rep = repealed | rs = repealed and substituted | |
Provisions affected How affected | |
30 | am | 14, 2012 |
31 | am | 14, 2012 |
36 | am | 14, 2012 |
41 | am | 14, 2012 |
42 | am | 14, 2012 |
45 | am | 14, 2012 |
46 | am | 14, 2012 |
| | | | | | |
© Norfolk Island Government 2014
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The Copyright Act 1968 of the Commonwealth of Australia permits certain reproduction and publication of this legislation. For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Legislative Counsel, Administration of Norfolk Island, Norfolk Island, South Pacific 2899.
