Part 6 Enforcement and remedies
Division 1 Interpretation and application
(1) In this Part:local contravention means a contravention of Part 4 or section 87 (1).
(2) A reference in this Part to a person involved in a contravention of a provision of this Act is a reference to a person who:(a) has aided, abetted, counselled or procured the contravention, or(b) has induced, whether by threats or promises or otherwise, the contravention, or(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention, or(d) has conspired with others to effect the contravention.(3) A reference in this Part to a contravention of Part 2-3 of the ACL (or a provision of that Part) is a reference to applying or relying on, or purporting to apply or rely on, a term of a consumer contract that the Supreme Court has declared under section 250 of the ACL to be an unfair term.
Division 2 Enforcement provisions applying to ACL offences and local offences
62 Enforcement provisions of ACL that extend to local offences
(1) The following provisions of the ACL apply to an offence against a provision of Part 4 or section 87 (1) of this Act in the same way as they apply to a contravention of, or an offence against, a provision of Chapter 4 of the ACL:(a) section 207 (Reasonable mistake of fact),(b) section 208 (Act or default of another person etc.),(c) section 209 (Publication of advertisements in the ordinary course of business),(d) section 216 (Granting of injunctions etc.).(2) The following provisions of the ACL apply to an offence against section 20 (3), 22, 23, Part 4 or section 87 (1) of this Act in the same way as they apply to a contravention of, or an offence against, a provision of Chapter 4 of the ACL:(a) section 212 (Prosecutions to be commenced within 3 years),(b) section 214 (Penalties for contraventions of the same nature etc.),(c) section 215 (Penalties for previous contraventions of the same nature etc.).
(1) A person is guilty of an offence against this Act if the person:(a) contravenes a provision of this Act, or(b) attempts to contravene a provision of this Act, or(c) aids, abets, counsels or procures another person to contravene a provision of this Act, or(d) induces, or attempts to induce, another person, whether by threats or promises or otherwise, to contravene a provision of this Act, or(e) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by another person of a provision of this Act, or(f) conspires with others to contravene a provision of this Act.(2) Subsection (1) does not apply to a contravention of section 54 of this Act or Chapter 2 or 3 of the ACL.
64 Penalties for contraventions
(1) A person who is convicted of a second or subsequent offence against Division 1, 2 or 5 of Part 4-1 of the ACL is, in addition to, or as an alternative to, any monetary penalty that may be imposed in relation to the offence, liable to imprisonment for a term not exceeding 3 years.(2) However, the maximum term of imprisonment that the Local Court may impose for any such second or subsequent offence is 2 years.
65 Compensation orders by Local Court on conviction of person
(1) If a person is convicted by the Local Court of an offence against this Act or the regulations and the Court is satisfied that another person has sustained loss or damage as a result of the conduct of the convicted person, the Court may, in addition to any penalty it may impose in respect of the offence, order the convicted person to compensate the other person for the loss or damage.(2) The compensation that the Local Court may order to be paid under this section is not to exceed the jurisdictional limit of the Local Court when sitting in its General Division within the meaning of the Local Court Act 2007.(3) In this section:(a) a reference to the conviction of a person includes a reference to the making of an order in respect of a person under section 10 of the Crimes (Sentencing Procedure) Act 1999, and(b) a reference to loss or damage does not, if the loss or damage arises from a contravention of Part 2-1, 3-1 or 4-1 of the ACL, include a reference to:(i) the death of a person, or(ii) personal injury to a person (including any pre-natal injury, any impairment of the person’s physical or mental condition and any disease).
66 Other orders that may be made by court on conviction
(1) If a person is, by any conviction or order of the Local Court, required to pay a fine, penalty, sum of money or costs in respect of an offence against this Act, the Court may, on the application of the Minister or the Director-General, order that the amount unpaid be recoverable as a judgment debt due to the Crown.(2) If an order is made under subsection (1):(a) the order has effect according to its tenor, and(b) the conviction or order ceases to be enforceable by imprisonment.(3) If a person is convicted of an offence against this Act, the convicting court may order the offender to reimburse the Department for the cost of purchasing or testing any goods to which the conviction relates.
(1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence.(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section.(3) A penalty notice under this section is declared to be a penalty notice for the purposes of the Fines Act 1996.(4) A penalty notice may be served personally or by post.(5) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(6) For the avoidance of doubt, a reference to any further proceedings for the alleged offence in subsection (5) includes a reference to any further proceedings under section 224 of the ACL for a contravention of a provision of the ACL that has the same elements as the elements for the alleged offence.(7) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(8) The regulations may:(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and(c) prescribe different amounts of penalties for different offences or classes of offences.(9) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.(10) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.(11) In this section:authorised officer means:
(a) the Director-General, or(b) an investigator, or(c) a person appointed in writing by the Director-General as an authorised officer for the purposes of this section.
(1) Proceedings for an offence against this Act may be taken and prosecuted only by the Director-General or, in the name of the Director-General, by a person acting with the authority of the Director-General.(2) Proceedings for an offence under this Act or the regulations may be dealt with:(a) summarily before the Local Court, or(b) summarily before the Supreme Court in its summary jurisdiction.(3) If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.(4) In proceedings for an offence against this Act, an authority to prosecute purporting to have been signed by the Director-General is evidence of that authority without proof of the signature of the Director-General.
Division 3 Enforcement provisions applying to local offences only
69 Penalties for offences against this Act
A person guilty of an offence against this Act (except the ACL) for which a penalty is not otherwise provided is liable:(a) in the case of a person other than a body corporate—to a penalty not exceeding 200 penalty units, or(b) in the case of a body corporate—to a penalty not exceeding 1,000 penalty units.
Division 4 Remedies applying to ACL matters and local matters
70 Remedy provisions of ACL that extend to local matters
(1) Section 218 (Regulator may accept undertakings) of the ACL applies to a matter in relation to which the Minister or the Director-General has a function under this Act in the same way as it applies to a matter in relation to which the regulator has a power or function under the ACL.(2) The following provisions of the ACL apply to a local contravention in the same way as they apply to a contravention of the ACL specified in those provisions:(a) Division 2 (Injunctions) of Part 5-2,(b) Division 3 (Damages) of Part 5-2,(c) Subdivision A (Compensation orders etc. for injured persons) of Division 4 of Part 5-2,(d) section 246 (other than subsection (2) (a) and (b)) (Non-punitive orders),(e) section 247 (Adverse publicity orders),(f) section 251 (Publication of advertisement in the ordinary course of business).
71 Declarations by Supreme Court concerning unfair contract terms
(1) An application for a declaration under section 250 of the ACL may be made only by the Director-General or, with the leave of the Supreme Court, by a party to a consumer contract that is a standard form contract.Note. Section 86 enables the Minister to intervene in proceedings brought before the Supreme Court under this Act.(2) A declaration made under section 250 of the ACL that a particular term of a consumer contract that is a standard form contract is unfair binds all parties to consumer contracts of that kind, unless the Supreme Court orders otherwise.(3) This section does not:(a) limit any other power of the Supreme Court to make declarations, or(b) prevent a party to a consumer contract that is a standard form contract from bringing proceedings in a court or tribunal of competent jurisdiction for relief in respect of a term of a consumer contract that is void because it is unfair.Note. Section 23 of the ACL provides that an unfair term in a consumer contract that is a standard form contract is void, although the contract continues to bind the parties if it is capable of operating without the unfair term. If a contract claim in relation to a consumer contract containing such an unfair term is brought before a court or tribunal (such as the Consumer, Trader and Tenancy Tribunal) having jurisdiction to deal with the claim, the court or tribunal will be required to treat the term as being void.(4) In this section, consumer contract, standard form contract and unfair have the same meanings as they have in the ACL.
72 Show cause action may be taken by Director-General
(1) In this section, unlawful conduct means any conduct that constitutes a contravention of a provision of this Act other than Part 2-3 of the ACL (or would constitute such a contravention if the conduct occurred in New South Wales), whether or not any proceedings have been brought in respect of the contravention.(2) If the Director-General is satisfied that a person has, in trade or commerce, engaged in any unlawful conduct on more than one occasion (whether in New South Wales or in any other place), the Director-General may, by notice in writing served on the person, call on the person to show cause why the person should not, for the reason specified in the notice, be prevented from carrying on a business of supplying goods or services.(3) The notice must specify the period (being at least 14 days after the notice is served) in which the person may show cause.(4) The person on whom a notice to show cause has been served under this section may, within the period specified in the notice, make a written submission in relation to the matters to which the notice relates.(5) The Director-General:(a) is to consider any such submission, and(b) may conduct such inquiries, or make such investigations, in relation to the matters to which the notice relates as the Director-General thinks appropriate.(6) This section does not limit the operation of section 79 of this Act or Division 2 of Part 5-2 of the ACL.
(1) The Director-General may, after serving a notice on a person under section 72 and taking into consideration any submissions made in relation to the matter, apply to the Supreme Court for an order under this section in respect of the person if the Director-General is of the opinion that the person is likely to engage again, or to continue to engage, in any unlawful conduct within the meaning of that section.(2) The Supreme Court may, on application by the Director-General under this section, make an order prohibiting the person who is the subject of the application (the relevant 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) for an indefinite period or for a period specified in the order.(3) In making any such order, the Supreme Court may, if the Court is satisfied that a person has sustained loss or damage as a result of the unlawful conduct of the relevant person, order the relevant person to compensate the other person for the loss or damage.(4) A reference in subsection (3) to loss or damage does not, if the loss or damage arises from a contravention of Part 2-1, 3-1 or 4-1 of the ACL, include a reference to:(a) the death of a person, or(b) personal injury to a person (including any pre-natal injury, any impairment of the person’s physical or mental condition and any disease).(5) This section does not limit the operation of section 79 of this Act or Division 2 of Part 5-2 of the ACL.
74 Actions for damages and compensation orders
(1) Sections 236 (2) and 237 (3) of the ACL do not apply to a cause of action to which Division 6 of Part 2 of the Limitation Act 1969 applies.(2) The powers conferred on the Supreme Court under section 237, 238 or 243 of the ACL in relation to a contract or arrangement do not affect any powers that another court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement.(3) The Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a local contravention or a contravention of Chapter 2 or 3 of the ACL if that matter arises in connection with another matter the subject of proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum, and make such ancillary orders, as it thinks fit.(4) A reference to loss or damage in section 236, 237 or 238 of the ACL and in this section does not, if the loss or damage arises from a contravention of Part 2-1, 3-1 or 4-1 of the ACL, include a reference to:(a) the death of a person, or(b) personal injury to a person (including any pre-natal injury, any impairment of the person’s physical or mental condition and any disease).
75 Contributory acts or omissions to reduce compensation in defective goods actions
(1) If the loss or damage to which a defective goods action under section 138 or 139 of the ACL relates was caused by both:(a) an act or omission of the individual who suffers the injuries referred to in that section or a person for whom that individual is responsible, and(b) a safety defect of the goods to which the action relates,the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage.(2) If the loss or damage to which a defective goods action under section 140 or 141 of the ACL relates was caused by both:(a) an act or omission of the person who suffered the loss or damage or another person for whom that person is responsible, and(b) a safety defect of the goods to which the action relates,the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that person’s share in the responsibility for the loss or damage.
76 Compensation orders etc arising out of unfair contract terms
In determining whether to make an order under section 237 (1) or 238 (1) of the ACL in relation to:(a) a contravention of a provision of Part 2-2 of the ACL, or(b) a term of a consumer contract that has been declared under section 250 of the ACL to be an unfair term,the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the declaration was made.
77 Remedy for supply of goods in contravention of certain provisions
(1) This section applies if:(a) goods are supplied to a person in contravention of section 106 or 118 of the ACL, or(b) goods are supplied to a person and the supply of the goods is an offence under section 194 or 197 of the ACL (whether or not there has been a conviction for the offence).(2) The person to whom the goods were supplied may recover from the supplier as a debt any money paid for the goods.(3) If judgment is given for the plaintiff in an action under subsection (2), the judgment debt may, if the court so directs, be satisfied by repair or modification of the goods in such a manner that:(a) the contravention relied on by the plaintiff would not have occurred if the goods had been supplied as repaired or modified, or(b) the repaired or modified goods are accepted by the plaintiff on or before a day specified in the direction.
78 Court may make orders for the purpose of preserving money or other property held by a person
(1) The Supreme Court may, on the application of the Minister or the Director-General, make an order or orders referred to in subsection (3) if:(a) proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in subsection (2) (e) or (f) may be taken against a person, and(b) the Court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under this Act:(i) to pay money by way of a fine, damages, compensation, refund or otherwise, or(ii) to transfer, sell or refund other property, and(c) the Court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person.(2) For the purposes of subsection (1) (a), the kinds of proceedings taken against the person are:(a) proceedings against the person for an offence against this Act, or(b) an application under section 232 of the ACL for an injunction against the person in relation to:(i) a local contravention or a contravention of a provision of Chapter 2, 3 or 4 of the ACL, or(ii) a term of a consumer contract in relation to which a declaration under section 250 of the ACL has been made, or(c) an application under section 79 for an injunction against a person in relation to a contravention referred to in that section, or(d) an action under section 236 (1) of the ACL against the person in relation to a local contravention or a contravention of a provision of Chapter 2 or 3 of the ACL, or(e) an application for an order under section 237 (1) or 239 (1) of the ACL against the person in relation to:(i) a contravention of a provision of Chapter 2, 3 or 4 of the ACL, or(ii) a term of a consumer contract in relation to which a declaration under section 250 of the ACL has been made, or(f) an application for an order under section 237 (1) of the ACL in relation to a local contravention, or(g) an application for an order under section 73 in relation to the person.(3) The Supreme Court may make the following orders under subsection (1) in relation to money or other property held by, or on behalf of, a person (the respondent):(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt:(i) to the respondent, or(ii) to another person at the direction or request of the respondent,(b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent:(i) from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent, or(ii) from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property,(c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held,(d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located,(e) if the respondent is a natural person—an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.(4) If the Supreme Court makes such an order, the order operates:(a) for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application), or(b) if proceedings in relation to which the order is made are concluded before the end of that period—until the conclusion of those proceedings.(5) A person who contravenes an order by the Supreme Court under this section that is applicable to the person is guilty of an offence punishable on conviction:(a) in the case of a person other than a body corporate—by a fine not exceeding 200 penalty units, or(b) in the case of a body corporate—by a fine not exceeding 1,000 penalty units.(6) This section does not affect any other powers of the Supreme Court.(7) A reference in this section to a person who is an associate of a respondent is a reference to:(a) a person holding money or other property on behalf of the respondent, or(b) if the respondent is a body corporate—a wholly owned subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the respondent.
Division 5 Remedies applying to local matters only
(1) The Supreme Court may grant an injunction in such terms as the Court determines to be appropriate if satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes, or would constitute:(a) a contravention of:(i) section 20 (3), 22 or 23 of this Act, or(ii) a provision of the Fitness Services (Pre-paid Fees) Act 2000, or(iii) a provision of any other legislation administered by the Minister or of an order made under any such legislation, or(b) attempting to contravene such a provision, or(c) aiding, abetting, counselling or procuring a person to contravene such a provision, or(d) inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene such a provision, or(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision, or(f) conspiring with others to contravene such a provision.(2) The Supreme Court may grant an injunction under this section only on the application of the Director-General made with the consent of the Minister.(3) An injunction may be granted under this section as an interim injunction without an undertaking being required as to damages or costs or may be granted as a permanent injunction.
(1) In this section, licence means any licence, permit or other authority granted or issued (whether before or after the commencement of this section) under any legislation administered by the Minister, and licensee means the holder of the licence, permit or authority.(2) If the Director-General is of the opinion that there are reasonable grounds to believe that:(a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and(b) it is likely that the licensee will continue to engage in that conduct, and(c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently,the Director-General may, by notice served on the licensee, suspend the licence for a period of not more than 60 days specified in the notice, commencing on service of the notice.(3) A notice under subsection (2) has effect according to its terms, whether or not the licensee has been afforded an opportunity to be heard as to whether the licence should be suspended.(4) Within 7 days after a licence has been suspended under this section, the licensee must:(a) lodge the suspended licence at an office of the Department, or(b) if unable to lodge the suspended licence, lodge at an office of the Department a statement signed by the licensee and providing accurate and complete details of why the licence cannot be lodged.Maximum penalty: 10 penalty units.
(5) If, during the suspension of a licence under this section, the Director-General is satisfied that the facts and circumstances that gave rise to the suspension have so altered that the suspension should be terminated, it is the duty of the Director-General, by further notice specifying the date of termination, to terminate the suspension without delay and restore the licence to the licensee.(6) Without affecting the generality of subsection (2):(a) a second or subsequent notice may be served on a licensee under that subsection in respect of conduct of the kind to which that subsection refers, and(b) any such notice may be served during a period of suspension of the licence concerned.(7) This section has effect despite the provisions of any other Act, and the power conferred by this section is in addition to, and does not limit or displace, a power conferred by or under any other Act that authorises the Director-General or any other person to suspend or cancel a licence or take other action in respect of a licence or in respect of the conduct concerned.(8) A licensee may apply to the Administrative Decisions Tribunal for a review of a decision of the Director-General under this section.