Division 286 Intervention by Minister or Director-General
(1) This section applies to proceedings brought before a court or tribunal under this Act or any other legislation administered by the Minister.(2) The Minister may, at any stage of proceedings to which this section applies, intervene in the proceedings.(3) The Director-General may, at any stage of proceedings to which this section applies, intervene in the proceedings but only if the Director-General is of the opinion that it would be in the public interest to do so.(4) The Director-General must intervene in proceedings to which this section applies if directed to do so by the Minister.(5) If the Minister or Director-General intervenes in proceedings, he or she:(a) becomes a party to the proceedings, and(b) has all the rights, including rights of appeal, of a party to the proceedings.
(1) The Minister or the Director-General may make or issue a public statement identifying and giving warnings or information about any of the following:(a) goods that are unsatisfactory or dangerous and persons who supply those goods,(b) services supplied in an unsatisfactory manner and persons who supply those services,(c) unfair business practices (including the use of terms that are or may be unfair in consumer contracts that are standard form contracts within the meaning of Part 2-3 of the ACL) and persons who engage in those practices,(d) any other matter that adversely affects or may adversely affect the interests of persons in connection with the acquisition by them of goods or services from suppliers.(2) Such a statement can identify particular goods, services, business practices and persons.(3) The Minister or the Director-General is not to make or issue a statement under this section unless satisfied that it is in the public interest to do so.
(1) The Director-General is to maintain a register that includes the following in relation to each undertaking accepted under section 218 of the ACL:(a) a copy of the undertaking,(b) a copy of each variation of the undertaking,(c) the name and address of the person who gave the undertaking,(d) the date of the undertaking.(2) The register is to be amended to remove information relating to undertakings that have been withdrawn.(3) The register is to be kept in the head office of the Department and is to be available for inspection during ordinary business hours free of charge.(4) The register may also be made available in electronic form.
87 Publication of certain statements prohibited
(1) Except in the case of a statement published with the consent of the Minister, or of a person authorised by the Minister to give the consent, a person shall not publish, or cause to be published, a statement that is intended, or apparently intended, to promote the supply or use of goods or services, or the sale or grant of interests in land, if the statement makes reference to:(a) the Minister,(b) the Department,(c) the Director-General,(d) a person or organisation prescribed by the regulations for the purposes of this section, being a person or organisation in existence at, or at any time before, the prescription, or(e) a person who is, or was, employed by the Department, or by a person referred to in paragraph (d), or by an organisation so referred to.Maximum penalty: 20 penalty units.
(2) A reference in subsection (1) (d) to a person or organisation includes a reference to a person appointed, or an organisation constituted, under an Act of the Commonwealth or of a State or Territory of the Commonwealth.
87A Conduct by directors, servants or agents
(TPA s 84)
(1) If, in a proceeding 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, servant or agent of the body corporate, being a director, servant 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, servant 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, servant or agent of the body corporate, if 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) If, in a proceeding 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 a servant or agent by whom the conduct was engaged in within the scope of the servant’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 a servant or agent of the person within the scope of the actual or apparent authority of the servant or agent, or(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant 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 that intention, opinion, belief or purpose.
(1) A notice or direction in writing that is required or permitted to be given under this Act may be given:(a) to a person other than a body corporate:(i) by giving it to the person himself or herself,(ii) by leaving it at his or her place of residence with someone who apparently resides there and has apparently reached the age of 16 years,(iii) by leaving it at his or her place of employment or business with someone who is apparently employed there and has apparently reached the age of 16 years, or(iv) by posting it in a letter addressed to him or her at the address last known to the Director-General of his or her place of residence, employment or business, or(b) to a body corporate:(i) by giving it to the secretary of the body corporate, or any other person concerned in the management of the body corporate, personally,(ii) by leaving it at the body corporate’s only or principal place of business with someone who is apparently employed there and has apparently reached the age of 16 years, or(iii) by posting it in a letter addressed to the body corporate at the address last known to the Director-General of its only or principal place of business.(2) Subsection (1) (b) does not limit anything in section 109X or 601CX of the Corporations Act 2001 of the Commonwealth.
88A Relationship with certain provisions of other Acts
(1) Section 64 (Guarantees not to be excluded etc. by contract) of the ACL is, with respect to a term of a contract for the supply of recreation services within the meaning of section 5N of the Civil Liability Act 2002, subject to that section of that Act.(2) Section 101 (Consumer may request an itemised bill) of the ACL does not apply to a bill within the meaning of Part 3.2 of the Legal Profession Act 2004.
89 Saving of rights and remedies
(1) Except to the extent that this Act otherwise expressly provides, this Act does not limit, restrict or otherwise affect any right or remedy a person would have had if this Act had not been enacted.Note. See also section 22 of the Contracts Review Act 1980.(2) Section 16 (Severability) of the ACL applies to a contravention of a provision of this Act (other than the ACL) in the same way as it applies to a contravention of the ACL and as so applying is to be read as if a reference in that section to this Schedule were a reference to this Act.
91 Savings and transitional provisions
Schedule 5 has effect.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed, for carrying out or giving effect to this Act.(1A) Without limiting subsection (1), the regulations may make provision for or with respect to the following:(a) the calling and holding of meetings of an advisory council,(b) varying the times referred to in section 73 (1) of the ACL,(c) the payment of money out of the NSW Consumer Law Fund established under section 79B.Note. Section 73 (1) of the ACL specifies the times at which a dealer must not call on a person to negotiate an unsolicited consumer agreement or for related purposes. Section 131C (2) of the Competition and Consumer Act 2010 of the Commonwealth winds back the operation of section 73 of the ACL to the extent that it is inconsistent with a provision of a State law.(2) A regulation may apply, adopt or incorporate, wholly or in part, and with or without modification, any standard, rule, code or specification of Standards Australia, the British Standards Institution or any other association or body and may classify or describe anything by reference to a diagram, illustration or photograph.(3) A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.(4) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, or(c) may authorise any matter or thing to be from time to time determined, applied or regulated by a specified person or body,or may do any combination of those things.