Page 2878 - Week 11 - Thursday, 22 October 1992
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FAIR TRADING BILL 1992
Detail Stage
Debate resumed from 21 October 1992.
Clauses 1 to 5, by leave, taken together, and agreed to.
Clause 6
MR DE DOMENICO (10.58): Madam Speaker, I move:
Page 6, subclause (3), line 24, omit the subclause.
This amendment was recommended by the Scrutiny of Bills Committee. The explanatory memorandum does not mention that subclause 6(3) reverses the onus of proof, so that in any proceedings relating to this law there is a rebuttable presumption that a person is a consumer. As a result, a defendant can, for example, be placed in the position of having to prove factual matters that are not necessarily within his or her knowledge.
Madam Speaker, the Commonwealth Trade Practices Act definition of "consumer" contains a provision similar to subclause (3), but the effect of the rebuttable presumption in the Trade Practices Act is reduced by the earlier subsections of that provision. The proposed definition of "consumer" in this Bill replaces the existing definition of "consumer" in the Consumer Affairs Act. However, the current Consumer Affairs Act definition does not contain the rebuttable presumption. Madam Speaker, I am thankful to Mr Connolly and Mr Charge for the information provided to us. The briefing we were given was fantastic.
Madam Speaker, clause 6 contains a simpler definition of "consumer" than that in the Trade Practices Act. It more closely resembles the equivalent provisions in the New South Wales and Northern Territory fair trading legislation. The definitions of "consumer" in the New South Wales and Northern Territory legislation do not contain the rebuttable presumption. However, the Northern Territory legislation has included it in a separate provision in exactly the same terms as subclause (3).
Madam Speaker, it is not clear from a reading of definition section 4B of the Trade Practices Act exactly how the earlier subsections reduce the effect of the rebuttable presumption. The practical effect of this provision, which is purely evidentiary, is to give the plaintiff a strategic advantage at the start of proceedings. Madam Speaker, this advantage may be lessened during the interlocutory stages as a result of discovery and other pre-trial interrogatories. As plaintiffs are just as likely to be corporations as individuals, the procedural advantages in reversing the onus of proof may in fact be illusory. Therefore, Madam Speaker, the Liberal Party is moving this amendment. It may be politic for the Minister to take the advice of some of his advisers and accept this amendment. The Minister has said that he is not prepared to do that, but the Liberal Party believes that he should. Madam Speaker, I commend the amendment to the house.
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