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Fair Trading Amendment (Australian Consumer Law) Act 2010 

The Fair Trading Amendment (Australian Consumer Law) Act commences on 1 January 2011 and amends the Fair Trading Act 1987 so that:

  • the Australian Consumer Law becomes a law of NSW that forms part of the Fair Trading Act (FTA) and is known as the Australian Consumer Law (NSW)
  • both the existing and enhanced administration and investigation powers in the FTA apply to the Australian Consumer Law (NSW)
  • provisions in the FTA that are replaced by the Australian Consumer Law (NSW) are repealed
  • it is clear which penalties, remedies and enforcement provisions apply to contraventions of the Australian Consumer Law (NSW) or the FTA or both
  • consequential amendments facilitate the implementation of the Australian Consumer Law as a national law.

Australian Consumer Law 

The Australian Consumer Law is a single, national law which applies in the same way nationally and in each State and Territory. The text of the ACL is set out in Schedule 2 to the Commonwealth Competition and Consumer Act 2010. For more information see

The Fair Trading Amendment (Australian Consumer Law) Act inserts a new Part 3 into the FTA. Part 3 contains the provisions which apply the ACL as a law of NSW. Uniform provisions are in the corresponding laws of the States and Territories (WA varies the provisions dealing with future modifications of the ACL).

For the purposes of the Australian Consumer Law (NSW), the regulator is the Director-General (of the NSW Department of Services, Technology and Administration) and the Supreme Court, District Court and Local Courts of NSW which have jurisdiction to deal with contraventions.

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Administration and investigation powers 

The functions of the Director-General encompass the role played by NSW Fair Trading in the joint administration and enforcement of the ACL and the information that may be exchanged with other regulators is expanded to include reports, recommendations, opinions, assessments and operational plans.

The powers to detect and investigate unsafe consumer goods and product related services, and remove them from the market place, are strengthened.

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Repealed provisions 

The following FTA provisions are repealed because there are substitute provisions in the ACL:

  • misleading and deceptive conduct
  • unconscionable conduct
  • unfair practices
  • unfair contract terms
  • pyramid selling
  • dual pricing
  • information standards
  • direct commerce
  • lay-by sales
  • conditions and warranties in consumer transactions
  • actions against manufacturers and importers
  • safe design and construction of goods
  • substantiation of claims and representations
  • enforceable undertakings
  • injunctions
  • actions for damages
  • compensation orders
  • adverse publicity orders
  • defences and the disposal of proceedings for offences.

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Penalties, remedies and enforcement provisions 

The Fair Trading Amendment (Australian Consumer Law) Act inserts a new Part 6 into the FTA. Part 6 makes a distinction between ACL contraventions and local contraventions (breaches of the remaining FTA provisions). 

Part 6 identifies the ACL remedies and enforcement provisions that replace repealed FTA provisions (such as injunctions and enforceable undertakings) and applies them to both ACL and local contraventions. 

Part 6 also re-writes existing remedies and enforcement provisions that were not adopted in the ACL, and makes it clear when they apply to ACL and/or local matters.

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Consequential amendments 

The definition of consumer in the FTA is the same as the definition in the ACL.

The functions of the Products Safety Committee are aligned with the Minister’s powers in the national product safety framework introduced in the ACL.

A Consumer Law Fund may be established in the Special Deposits Account to receive pecuniary penalties under the ACL and amounts ordered by the court to redress loss or damage suffered by consumers as a result of conduct in contravention of the ACL.

The Fair Trading Regulation is amended to repeal certain mandatory product safety and information standards that are covered by national standards made under the ACL.

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