Page 2861 - Week 11 - Wednesday, 21 October 1992
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FAIR TRADING BILL 1992
Debate resumed.
MS ELLIS: I point out that clause 22 will not interfere with the operation of the Australian Supermarket Institute's voluntary code. It is modelled on a similar provision in the New South Wales Fair Trading Act, which has been operating in New South Wales since 1987. The clause requires all traders to take reasonable care to avoid selling goods at a price greater than the lower or lowest price appended to the goods.
The word "appended" has a wide meaning. It includes the prices on any labels or advertising displayed on or attached to the goods. For example, if the shelf price of a tin of spaghetti is 75c, the scanned price is 95c and the sign on the display stand is 70c, the maximum price that can be legally charged is 70c. Likewise, if goods carry two price tickets, they cannot be sold at the higher of the two prices. If a trader wants to mark up the price of goods, he or she will have to remove the lower price label before the new price label can be affixed. In my view, this is not unfair to fair traders. It applies only to mark-ups, and it is in situations such as these that a trader has a positive duty to ensure that shoppers are not misled by discrepancies in prices.
Before I close, I think it is important to make it clear that this provision does not mean that a trader must sell his or her goods at the lowest price appended to them. The law of contract remains intact and says that, when a customer takes his or her selection of goods to the cash register, he or she is making an offer to buy the goods. That offer to buy does not become a contract for the sale of the goods until it is accepted by the trader. Therefore, if the scanner or a search of the goods themselves reveals a higher price, it is up to the trader or his or her sales assistant to withdraw the goods from sale rather than charge the purchaser the higher price. Withdrawing goods from sale might well be justified if the trader genuinely believes that there has been a pricing error or there has been some tampering with the prices. However, in most cases I suspect that, as a gesture of goodwill, the seller will decide to sell the goods at the lower price.
Ultimately, if the seller or his or her staff are not vigilant and do not have the appropriate mechanisms in place to ensure price integrity, goods may be sold for more than the lowest appended price. In these circumstances, the seller will be in breach of clause 22 and liable to be prosecuted unless he or she can show that the breach was caused by an accident or some other cause beyond his or her control and the seller took reasonable precautions to avoid the contravention.
Hopefully, traders who observe voluntary codes such as that developed by the Australian Supermarket Institute will rarely find themselves in breach of this provision. If perchance they do, they may well be able to rely on the procedures set out in the code as their defence. By including provisions such as this in our own fair trading legislation, I hope that we will be encouraging more traders to adopt voluntary self-regulation procedures that are exemplified by the Australian Supermarket Institute's code. In this way, fair traders are supported and consumers get the best bargains and the best possible service. For these reasons, Madam Speaker, I commend the Bill to the Assembly.
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