Treasury Laws Amendment (Gift Cards) Regulations 2018

I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 13 December 2018

Peter Cosgrove

Governor‑General

By His Excellency’s Command

Stuart Robert

Assistant Treasurer

Contents

1 Name

2 Commencement

3 Authority

4 Schedules

Schedule 1—Amendments

Competition and Consumer Regulations 2010

1  Name

  This instrument is the Treasury Laws Amendment (Gift Cards) Regulations 2018.

2  Commencement

 (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

 (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

  This instrument is made under the Competition and Consumer Act 2010.

4  Schedules

  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Competition and Consumer Regulations 2010

1  After regulation 89

Insert:

89A  Gift cards

  For the purposes of section 99A of the Australian Consumer Law, an article of any of the following kinds is not a gift card:

 (a) an article that:

 (i) is redeemable for goods or services; and

 (ii) can have its value increased after it is supplied other than because of a reversal of a payment made using the article or the correction of an error;

 (b) an article that is only redeemable in relation to one or more of the following:

 (i) electricity;

 (ii) gas;

 (iii) a telecommunications service.

89B  Gift cards—fees or charges that are not post‑supply fees and charges

  For the purposes of subsection 99D(2) of the Australian Consumer Law, the following kinds of fees and charges are specified:

 (a) fees or charges for making a booking if the fees or charges are the same, or substantially the same, as the fees or charges for making the booking using a payment method other than a gift card;

 (b) fees or charges for exchanging currencies;

 (c) fees or charges relating to the reissue of a gift card that has been lost, stolen or damaged;

 (d) fees or charges that are payment surcharges (within the meaning of section 55A of the Act).

89C  Application of Division 3A of Part 3‑2 of the Australian Consumer Law to gift cards

Gift cards to be redeemable for at least 3 years—gift cards and supplies to which requirement does not apply

 (1) For the purposes of paragraph 99G(a) of the Australian Consumer Law, section 99B and paragraph 99F(1)(b) of the Australian Consumer Law do not apply to:

 (a) a gift card of a kind that:

 (i) is only redeemable for a particular good or service that is only available for a specified period; and

 (ii) ceases to be redeemable at the end of that specified period; or

 (b) a gift card of a kind that:

 (i) is only redeemable for a particular good or service; and

 (ii) is supplied at a discount on the market value of the good or service that a reasonable person would consider to be a genuine discount on the market value of the good or service.

 (2) For the purposes of paragraph 99G(c) of the Australian Consumer Law, section 99B and paragraph 99F(1)(b) of the Australian Consumer Law do not apply in relation to gift cards supplied in any of the following circumstances:

 (a) a gift card supplied as part of a temporary marketing promotion to the purchaser of goods or services in connection with the purchase of the goods or services;

 (b) a gift card donated for a promotional purpose;

 (c) a gift card supplied for the purposes of an employee reward scheme;

 (d) a gift card supplied for the purposes of a customer loyalty program;

 (e) a gift card supplied in exchange for another gift card if the gift card being supplied and the gift card being exchanged cease to be redeemable at the same time.

Supplies of gift cards to which all requirements relating to gift cards do not apply

 (3) For the purposes of paragraph 99G(c) of the Australian Consumer Law, Subdivision B of Division 3A of Part 3‑2 of the Australian Consumer Law does not apply in relation to:

 (a) gift cards supplied in these circumstances:

 (i) a person supplies a gift card in trade or commerce; and

 (ii) the gift card being supplied has been the subject of an earlier supply in trade or commerce; and

 (iii) the gift card is being supplied by the person as a second‑hand good; and

 (iv) the person cannot vary when the gift card ceases to be redeemable; or

 (b) gift cards supplied to:

 (i) an entity that is registered under the Australian Charities and Not‑for‑Profits Commission Act 2012 as the subtype of entity mentioned in column 2 of item 3 of the table in subsection 25‑5(5) of that Act (Entity with a purpose of advancing social or public welfare); or

 (ii) a Department of State of the Commonwealth, a State or a Territory; or

 (iii) an agency or authority of the Commonwealth, a State or a Territory, except where the functions of the agency or authority are wholly or primarily commercial functions; or

 (iv) a body established for the purposes of local government by or under a law of a State or Territory.

2  After regulation 92

Insert:

92A  Application of Division 3A of Part 4‑2 of the Australian Consumer Law to gift cards

Gift cards to be redeemable for at least 3 years—gift cards and supplies to which the offence relating to that requirement does not apply

 (1) For the purposes of paragraph 191E(a) of the Australian Consumer Law, section 191A of the Australian Consumer Law does not apply in relation to a gift card of a kind specified in subregulation 89C(1).

 (2) For the purposes of paragraph 191E(c) of the Australian Consumer Law, section 191A of the Australian Consumer Law does not apply in relation to a gift card supplied in any of the circumstances specified in subregulation 89C(2).

Supplies of gift cards to which all offences relating to gift card requirements do not apply

 (3) For the purposes of paragraph 191E(c) of the Australian Consumer Law, sections 191A to 191D of the Australian Consumer Law do not apply in relation to a gift card supplied in:

 (a) the circumstances specified in paragraph 89C(3)(a); or

 (b) the circumstances specified in subparagraph 89C(3)(b)(i), (ii), (iii) or (iv).