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Legislative Assembly for the ACT: 2001 Week 7 Hansard (21 June) . . Page.. 2291 ..

MR STEFANIAK (continuing):

to those in sections 87B and 87C of the Trades Practices Act. This is a desirable alternative enforcement power as enforceable undertakings are less costly than a formal court action to compel persons to comply with the provisions of the law. There is also evidence that suggests that enforceable undertakings may result in a rise in voluntary admissions and corrections of breaches of the law.

Secondly, provision for a power to require substantiation of claims or representations. The present law includes a standard power to compel providers of goods and services to provide information to a regulator. However, this power does not require a provider to substantiate a claim made about goods and services. This gap in the law has been remedied in New South Wales, Queensland and South Australia. In those jurisdictions, a regulator may now require a provider of goods or services to substantiate a claim made in the course of trading. Failure to respond to a substantiation notice by the stated time and day is an offence.

This power was introduced in New South Wales in May of last year. Within one year, New South Wales issued 52 substantiation notices. It is desirable for the territory to adopt a similar enforcement power in order to reduce the incidence of false or misleading claims about goods and services in the ACT market. Currently, where a trader engages in false or misleading advertising, disproving such claims would be logistically difficult and costly for the commissioner. The lack of a substantiation power means that many traders in the territory are now able to flout the law, knowing that it is currently extremely difficult to prosecute them.

This power will provide significant benefits to the ACT community, including small business. Quite simply, if traders sell products on the strength of claims they make about those products, they should be in a position to substantiate those claims. Consumers will benefit from not being misled about the goods or services that they acquire and costly prosecution will be avoided by the early detection and remedy of misleading conduct. The existence of such a power will have the effect of reducing the incidence of unfounded claims about products or services.

Thirdly, the power to issue on-the-spot or infringement notices. Mr Speaker, this bill inserts standard provisions concerning on-the-spot penalty or infringement notices that can be called up by regulations under ACT laws. It is intended to use these provisions to prescribe some fair trading offences where, because of the nature of the offence, the evidence is likely to disclose a clear contravention of the law. The provisions will enable existing, less comprehensive, provisions dealing with this type of process to be progressively repealed. On-the-spot penalty or infringement notices are a fast and immediate response to unambiguous infringement or contravention of the law. This power is not new to the territory's fair trading laws. The ACT has previously adopted infringement notices in dealing with other consumer legislation, such as the Sale of Motor Vehicles Act 1977 and the Trade Measurement Administration Act 1991.

Fourthly, power to enter business premises and remove evidence. This bill revises the power of inspectors to enter business premises and remove evidence. The bill provides that fair trading investigators or inspectors may enter business premises with the consent or permission of the person concerned or with a judicial warrant or, in situations of urgency, with a telephone warrant. Furthermore, under the present law, evidence may not be taken unless the investigator first pays a just price for the goods. This bill removes

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