EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 337

 

 

Subject Trade Practices Act 1974

 

Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) Amendment Regulations 2010 (No. 1)

 

The Trade Practices Amendment (Australian Consumer Law Act (No. 2) 2010 (ACL Act) amends the Trade Practices Act 1974 (the Act) to complete the initial text of the Australian Consumer Law (ACL) and to apply it as a law of the Commonwealth. The ACL is a single, national consumer law, which will apply as a law of the Commonwealth and of each of the States and Territories under an application of laws scheme.

 

Section 139G of the Act, which is contained in Schedule 2 to the ACL Act, provides that the Governor-General may make regulations prescribing matters required or permitted by the ACL to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the ACL. Items 1 to 9 of the Regulations would be made under section 139G of the Act, with the exception of new Items 10 and 11 of the Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) (the Amendment Regulations).

 

The ACL Act has received the Royal Assent and is scheduled to commence on 1 January 2011. Accordingly, items 1 to 9, with the exception of new Items 10 and 11 of the Amendment Regulations, are made pursuant to section 4 of the Acts Interpretation Act 1901, which has the effect that the regulation-making powers in the ACL Act can be exercised as if the Act had come into force.

 

Section 172 of the Act provides that the Governor-General may make regulations prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. New Items 10 and 11 of the Amendment Regulations, which are also inserted by Item 9 of the Regulations, are made under section 172 of the Act.

 

Amendments to the Trade Practices Regulations 1974 (the Principal Regulations) by the Amendment Regulations were approved by the Governor-General in Council on 16 November 2010.

 

The Amendment Regulations amend the Principal Regulations to give practical effect to certain provisions of the ACL.

 

The Regulations amend the Amendment Regulations to update references to the Act and the Principal Regulations to allow for a name change from 1 January 2011. The Regulations also correct certain drafting errors in the Amendment Regulations.

 

Details of the Regulations are included in the Attachment.

 

The Regulations would be a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations would commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

 

 

Authority: Section 139G of the Trade Practices Act 1974 (as set out in Schedule 2 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010)

 

Section 172 of the Trade Practices Act 1974

ATTACHMENT

 

Details of the Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1)

 

This regulation provides that the Trade Practices (Australian Consumer Law) Amendment Regulations 2010 (No. 1) (the Amendment Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – subregulation 2(1)

 

Existing subregulation 2(1) defines ‘large proprietary company’ by reference to section 9 of the Corporations Act 2001. The Trade Practices Regulations 1974 (the Principal Regulations) define ‘proprietary company’ by reference to section 45A(1) of the Corporations Law. This item amends item [4] of Schedule 1 to the Amendment Regulations to define ‘large proprietary company’ and ‘proprietary company’ by reference to subsections 45A(3) and 45A(1) of the Corporations Act 2001, respectively.

 

Items [2] to [5] – paragraph 78(a), subregulation 81(2) and regulation 84

 

These items make minor editorial changes to ensure consistency in drafting style and to clarify the numbering of some provisions within item [8] of Schedule 1 to the Amendment Regulations.

 

Items [6] and [8] – subregulation 93(2), subregulation 93(3) and paragraph 94(3)(f)

 

These items replace incorrect references to the ‘Fair Trading Act 1990 (Tas)’ with ‘Door to Door Trading Act 1986 (Tas)’ in subregulation 93(2), subregulation 93(3) and paragraph 94(3)(f) of the Amendment Regulations.

 

Item [7] – subregulation 94(2)

 

This item corrects a drafting oversight to include a reference to subparagraph 173(1)(a)(iii) in subregulation 94(2). The Amendment Regulations refer to subparagraph 76(a)(iii) of the ACL. Subparagraph 173(1)(a)(iii) is the criminal offence provision equivalent to subparagraph 76(a)(iii) of the ACL.

 

Item [9] – subregulation 90(2) and Further Amendments

 

This item inserts items 9, 10 and 11 into the Amendment Regulations.

 

New Item 9 of the Amendment Regulations corrects a minor drafting error in the statement that must be included when a person provides a warranty against defects to a consumer.

 

New Items 10 and 11 of the Amendment Regulations amend the Principal Regulations by replacing references to the Act or the Principal Regulations with references to the Competition and Consumer Act 2010 or the Competition and Consumer Regulations 2010, as appropriate. This allows for the fact that the name of the Trade Practices Act 1974 will change to ‘Competition and Consumer Act 2010’ and the name of the Trade Practices Regulations 1974 will change to ‘Competition and Consumer Regulations 2010’, both effective from 1 January 2011.