Hon Craig Foss, in Committee, to move the following amendments:
In clause 2(1), replace
“subsection (2)” (line 5 on page 9) with
“subsections (2) and (3)”.
Replace clause 2(2)(a) (line 11 on page 9 to line 2 on page 10) with:
(a) in Part 1, sections 6(3), 7, 9, 10, 11, 12B, 18, 22, 23, 23A, 25, 30, 31, 35, 36, 39, 40A, 41, 43, 59, and 63 (relating generally to contracting out, unsubstantiated representations, unsolicited goods and services, disclosure of trader status, layby sales, uninvited direct sales, extended warranties, auctions, infringement offences, carriage of goods, and gas and electricity); and
After clause 2(2) (after line 3 on page 10), insert:
In clause 6(3), replace the definition of transparent (lines 14 to 19 on page 12) with:
“transparent, in relation to a term in a contract, means a term that is—
In clause 6(3), move the definition of uninvited direct sale agreement (lines 26 and 27 on page 12) to its appropriate alphabetical order.
In the heading to clause 9, replace
“section 12A” (line 7 on page 15) with
“sections 12A to 12B”.
In clause 9, replace
“section are” (line 8 on page 15) with
In clause 9, replace new section 12A (line 11 on page 15 to line 38 on page 16) with:
“12A Unsubstantiated representations
“(1) A person must not, in trade, make an unsubstantiated representation.
“(2) A representation is unsubstantiated if the person making the representation does not, when the representation is made, have reasonable grounds for the representation, irrespective of whether the representation is false or misleading.
“(3) This section does not apply to a representation that a reasonable person would not expect to be substantiated.
“(4) In this section and sections 12AA to 12B, representation means a representation that is made—
“12AA Court must have regard to certain matters
“(1) In proceedings concerning a contravention of section 12A, and in assessing whether a person had reasonable grounds for a representation, a court must have regard to all of the circumstances, including—
“(e) the extent to which the person making the representation complied with the requirements of any standards, codes, or practices relating to the grounds on which such a representation may be made, and the nature of those requirements:
“(2) Subsection (1) does not limit section 44.
“12AB Limitation on commencement of proceedings in relation to unsubstantiated representations
Despite anything to the contrary in Part 5, only the Commission may commence proceedings, apply for an order, or apply for an injunction in relation to a contravention of section 12A.”
In clause 9, new section 12B, replace
“industry or profession” (line 3 on page 17) with
“trade, business, industry, profession, occupation, activity of commerce, or undertaking”.
In clause 9, new section 12B(a), replace
“industry or profession” (line 7 on page 17) with
“trade, business, industry, profession, occupation, activity of commerce, or undertaking”.
New clause 10A
After clause 10 (after line 19 on page 17), insert:
10A New section 14A inserted
The following section is inserted after section 14:
“14A When vendor bids are misrepresentations
“(1) This section applies where property (being goods, services, or an interest in land) is offered for sale—
“(2) The vendor of the property makes a false or misleading representation with respect to the price of the property if the vendor, or any agent acting on behalf of the vendor, makes a vendor bid for the property.
“(3) However, subsection (2) does not apply if—
“(4) If property is unsold at the end of an auction or other bidding process referred to in subsection (1), any subsequent reference to a particular bid as being the amount at which the property was passed in is a false or misleading representation with respect to the price of the property if the bid was a vendor bid.
“(5) In this section, vendor bid means a bid made by the vendor or any person (including an auctioneer) acting as agent for the vendor.”
Clause 11A: new section 26A
In clause 11A, replace new section 26A (lines 30 to 36 on page 20) with:
“26A Unfair contract terms in standard form consumer contracts
If a court has declared, under section 46I, that a term in a standard form consumer contract is an unfair contract term, a person must not—
Clause 12B: new section 28B
In clause 12B, new section 28B(1), replace
“on an Internet site” (line 3 on page 22) with
“via the Internet”.
In clause 12B, replace new section 28B(2) (lines 5 to 8 on page 22) with:
“(2) Where goods or services are offered for sale by a person in trade via the Internet, and the sale is managed by an intermediary that is not party to any resulting sale (such as, for example, where the intermediary operates an on-line bidding process), the intermediary must take all reasonable steps to ensure that the person offering the goods or services for sale complies with subsection (1).”
Clause 15: new section 31A
In clause 15, replace new section 31A(1)(b) (lines 13 to 15 on page 25) with:
Clause 17: new section 33C
In clause 17, new section 33C(3), replace
“(1)(a)” (line 25 on page 29) with
Clause 18: new section 36K
In clause 18, new section 36K(2)(a)(i), delete
“referred to in subsection (1)” (lines 31 and 32 on page 39).
Clause 18: new section 36L
In clause 18, replace new section 36L(2)(b) (lines 6 to 8 on page 41) with:
Clause 18: new section 36UA
In clause 18, new section 36UA(2)(a), replace
“Order in Council” (line 11 on page 50) with
In clause 18, new section 36UA(3), replace
“Order in Council” (line 17 on page 50) with
Clause 18: new section 36Z
In clause 18, new section 36Z(4), replace
“and (2)” (line 29 on page 52) with
Clause 18: new section 36ZAA
In clause 18, replace new section 36ZAA (line 33 on page 52 to line 6 on page 53) with:
“36ZAA Vendors selling in trade
The Consumer Guarantees Act 1993 does not apply to goods that are ordinarily acquired for personal, domestic, or household use if—
Clause 18: new section 36ZA
In clause 18, replace new section 36ZA(1)(c) (lines 23 to 29 on page 53) with:
In clause 18, replace new section 36ZA(2) and (3) (lines 30 to 36 on page 53) with:
Clause 19: new section 37
In clause 19, new section 37(e), after
“order” (line 5 on page 55), insert
Clause 26: new section 46C
In clause 26, new section 46C(1)(c), replace
“46D” (line 1 on page 65) with
“40(1) or (1A)”.
Clause 26A: new section 46I
In clause 26A, replace new section 46I(2)(c) (lines 28 and 29 on page 66) with:
Clause 26A: new section 46L
In clause 26A, after new section 46L(3) (after line 22 on page 68), insert:
“(4) However, in relation to insurance contracts only, for the purposes of subsection (1)(b), a term in an insurance contract may be treated as being reasonably necessary in order to protect the legitimate interests of the insurer if the term relates to the underwriting risk accepted by the insurer.
Clause 35A: new section 5A
In clause 35A, replace new section 5A (line 22 on page 76 to line 7 on page 77) with:
“5A Guarantee as to delivery
“(1) Where a supplier is responsible for delivering, or for arranging for the delivery of, goods to a consumer there is a guarantee that the goods will be received by the consumer—
“(2) Where the delivery of the goods fails to comply with the guarantee under this section, Part 2 gives the consumer a right of redress against the supplier and, in that case, the consumer may,—
“(a) if, and only if, the failure is of a substantial character, reject the goods under section 18(3); and
“(3) For the purposes of this section, the reference in section 20(1)(b) to an agent of the supplier must be treated as including any carrier or other person who undertakes to deliver the goods on behalf of the supplier.
“(4) A consumer’s rights of redress under Part 2 in relation to the guarantee under this section are limited to those specified in subsection (2).”
Clause 36: new section 7B
In clause 36, new section 7B(4), after
“supply of gas” (lines 17 and 18 on page 79), insert
“(other than non-reticulated gas)”.
Clause 40A: new section 43(2)
In clause 40A, new section 43(2)(b), after
“services” (line 6 on page 82), insert
“or, in the case of the guarantee of acceptable quality in section 7A, the gas or electricity”.
In clause 40A, new section 43(2A)(b), after
“services” (line 19 on page 82), insert
“or, in the case of the guarantee of acceptable quality in section 7A, the value of the gas or electricity supplied or likely to be supplied under the agreement”.
In clause 40A, new section 43(2A)(c)(ii), replace
“the other” (line 26 on page 82) with
After clause 53B(1) (after line 10 on page 90), insert:
In clause 67A, replace
“a person described in section 67(1)” (line 11 on page 98) with
“disqualified from registration under section 67(1)”.
In clause 74(1), replace
“must” (line 5 on page 101) with
In clause 74(1)(f), delete
“described in section 67(1)” (lines 24 and 25 on page 101).
In clause 74(1)(f), after
“behalf” (line 26 on page 101), insert
“, knowing that the person is disqualified from registration”.
After clause 84(2)(b) (after line 12 on page 107), insert:
In Schedule 1, item relating to the Search and Surveillance Act 2012, item relating to section 47(2) of the Fair Trading Act 1986 (page 111), insert in column 4
“All (except sections 118 and 119)”.
In Schedule 1, item relating to the Search and Surveillance Act 2012, item relating to section 47L of the Fair Trading Act 1986 (page 111), insert in column 4
“All (except sections 118 and 119)”.
In Schedule 3, Part 2, replace the item relating to section 8 of the Real Estate Agents Act 2008 (line 33 on page 116) with:
Section 8: replace
“licensed as an auctioneer under the Auctioneers Act 1928” with
“registered as an auctioneer under Part 2 of the Consumer Law Reform Act 2011”.
This Supplementary Order Paper proposes to amend the Consumer Law Reform Bill. The following proposed changes affect the Fair Trading Act 1986:
delaying commencement of the contracting out provisions until 6 months after Royal assent:
delaying commencement of the unfair contract term provisions until 15 months after Royal assent:
substituting a new definition of transparent in section 2(1):
making technical drafting amendments to provisions relating to unsubstantiated representations:
inserting a new section 14A that sets out that, in certain circumstances, a vendor bid, or quoting a vendor bid, will be a false or misleading representation as to price:
substituting a new section 26A, about unfair contract terms. The replacement—
clarifies that the prohibitions on including an unfair contract term in a standard form contract apply only after the court has declared the term to be an unfair contract term:
clarifies that if a term has been declared to be an unfair contract term in a standard form contract, it can nonetheless be included in the standard form contract if it is included in a way that complies with any terms set out in the decision of the court that made the declaration:
amending new section 28B, which is about disclosure of trader status in Internet sales. The change is intended to future-proof the provision by reflecting the fact that Internet sales may not be done through an Internet “site”, as the Internet may be available otherwise than on a site:
amending new section 31A, to make clear that, in relation to voluntary recalls of goods, new section 31A applies only if there is no other requirement to report to a government agency or if there is no other requirement to take any action in relation to those goods:
amending new section 36L to clarify the disclosure requirements in relation to the total price payable, or other consideration to be given, in relation to uninvited direct sales agreements:
adjusting new section 36ZA, which is about vendor bids at auctions, to reflect the new section 14A:
amending new section 46L, about unfair contract terms, to provide that, in insurance contracts, a term may be treated by a court as being reasonably necessary in order to protect the legitimate interests of the insurer (and therefore not be an unfair contract term) if the term reflects the underwriting risk accepted by the insurer.
The following proposed changes affect the Consumer Guarantees Act 1993:
substituting a new section 5A, which relates to guarantees as to delivery where the supplier is responsible for delivering, or arranging for the delivery of, goods to a consumer:
amending new section 7B(4) to exclude non-reticulated gas:
amending new section 43 to include references to new section 7A (which deals with guarantees of acceptable quality in relation to the supply of gas and electricity).
This Supplementary Order Paper also makes a number of minor and technical amendments affecting the Fair Trading Act 1986, the Consumer Guarantees Act 1993, and the Weights and Measures Act 1987.