Discharge of Order and Referral to Standing Committee on Uniform Legislation and Statutes Review — Motion

Resumed from 19 March on the following motion moved by Hon Michael Mischin —

(1)  That the Fair Trading Amendment Bill 2018 be discharged and referred to the Standing Committee on Uniform Legislation and Statutes Review for the purposes of considering the adoption or disallowance of amending laws;

(2)  that the committee consider the proposed amendments contained in supplementary notice paper 75, issue 5, dated Tuesday, 19 March 2019; and

(3)  that the committee report by 4 June 2019.

Comments and speeches from various members

HON ALISON XAMON (North Metropolitan) [2.32 pm]: I rise as the lead speaker on behalf of the Greens to speak on the Fair Trading Amendment Bill 2018. From the outset I indicate that subject to the amendments that appear on issue 7 of supplementary notice paper 75 being passed the Greens will support this bill.

Members may be surprised that what may appear to be a relatively innocuous bill has been the source of so much angst in this house. It is important that we get this bill right, precisely because we need to ensure that the legislation will interact with the federal jurisdiction. Section 51 of the Australian Constitution sets out a long list of matters on which the Australian Parliament has power to make laws. Relevant to this bill is that it includes the power to legislate on trade and commerce internationally and interstate in relation to corporations. The Australian Parliament has so legislated by passing the Australian Consumer Law. In Western Australia those laws have applied to corporations, which constitute about 80 per cent of traders, but not to non-corporate businesses such as sole traders and partnerships. For those non-corporate businesses in Western Australia, the Australian Parliament has power to legislate only if the Western Australian Parliament either refers that matter to it or passes its own law adopting the commonwealth law after it has been passed. To date, the Western Australian Parliament has chosen the latter course of action by passing its own laws to apply the Australian Consumer Law so that it applies to non-corporate businesses as well as to corporations. Unfortunately, that has meant that Western Australia is lagging, as is the case with many types of legislation that we choose to adopt. We have adopted the Australian Consumer Law only up to 1 January 2013. Since then, there have been at least eight amendments that are not applicable in Western Australia. The nature of those amendments is set out on pages 25 to 34 of the very helpful report of the Standing Committee on Uniform Legislation and Statutes Review, which was tabled in this place in November last year.

Further, as a result of the 2017 review of the Australian Consumer Law, a raft of further amendments are expected in the future. All other state jurisdictions have already passed laws that apply the Australian Consumer Law in their jurisdictions. There is variation between jurisdictions in the method that is used to achieve this, but the outcome is essentially the same. The Western Australian Consumer Law for non-corporate businesses is currently different from the law in other Australian jurisdictions that is applicable to corporations and, indeed, to non-corporate businesses. It is set to become increasingly inconsistent in the future. This will potentially be very confusing for those businesses and their customers. It also denies them and their customers the benefit of any consumer law protections or defences that are legislated at the commonwealth level. With the aim of curing that inconsistency—I think that is the intention of all members here—we will amend the Fair Trading Act 2010 to adopt the Australian Consumer Law up to 26 October 2018 and, from that point on, have a process that will allow each subsequent amendment to the Australian Consumer Law to also be adopted, provided that neither house of the Western Australian Parliament objects. Unfortunately, it has taken quite a while to figure out what that process should look like, and it has not yet been agreed to. As a result, there has been a flurry of supplementary notice papers over the last few days, which reflects the gradual progress of this discussion as we have all grappled with the issue and tried to reach a consensus. Again, I would like to commend the very good work of the Standing Committee on Uniform Legislation and Statutes Review. Its excellent report has informed the discussion and served us very well. Once again, the Legislative Council is coming to the rescue! The discussions have reached the point that it has been decided to split the bill so that it adopts the Australian Consumer Law up to 26 October 2018, and the process for adopting or rejecting subsequent commonwealth amendments will be left to another day, another bill and, probably, another excellent Standing Committee on Uniform Legislation and Statutes Review report. I wait for that with bated breath! That is a tidy outcome, which the Greens will support.

The bill will also amend provisions relating to the Property Industry Advisory Committee, the Motor Vehicle Industry Advisory Committee and the Consumer Advisory Committee. Currently, the members of each committee are the Commissioner of Consumer Protection ex officio plus other persons who have been appointed by the minister as prescribed, with one of the latter to be appointed as the chairperson. Originally, this was the director general of what was the then Department of Commerce. Now that those committees are well-established, the bill will change that to allow the minister to appoint any member, including the commissioner, to be the chairperson. That does not seem to be a controversial change. Another change that will be made by the bill is to amend section 108 of the act. That section currently states that findings of fact by a court in certain proceedings will be taken as prima facie evidence of that fact in certain other proceedings. This bill will expand that. It will apply to not only a court finding of fact, but also admissions of fact. This is pursuant to a recommendation of the 2017 Australian Consumer Law review, which has already been referred to. I understand, and ask the minister to confirm, that there will be a commonwealth amendment to similar effect, but that amendment will be via a different act and therefore cannot be subject to the adoption provisions in the second split bill.

Hon Alannah MacTiernan: Sorry member, which section?

Hon ALISON XAMON: There is going to be a commonwealth amendment to a similar effect on the admissions of fact. That will be introduced in a different way. It will not be subject to the provisions that we will be contemplating in the future split bill. Therefore, as I understand it, the government is taking the opportunity to amend our law, ahead of the commonwealth amendment, to avoid the need to bring another bill before this Parliament in order to implement it. The government does not anticipate a problem arising under section 109 of the Constitution, because the effect of the Western Australian law and the commonwealth law will be the same, even if the wording ends up being slightly different.

The Standing Committee on Uniform Legislation and Statutes Review advised in its report that the bill in its current form is supported by the Consumer Credit Legal Service of WA, which was an important point to make because it, on a day-to-day basis, deals with individuals who are adversely affected by consumer protection matters. The Consumer Credit Legal Service is therefore well placed to talk about how these changes are likely to facilitate it in assisting its clients. The bill, in the form that I am expecting it to pass, hopefully shortly, will go some way towards what the Consumer Credit Legal Service has been advocating for. The intended second split bill will, hopefully, complete that process.

With those few words, I wish to indicate that the Greens will support the passage of the bill through the second reading stage, but further passage is contingent upon the proposed amendments, which are on the supplementary notice paper, being passed.

Comments and speeches from various members

Question put and passed. Bill read a second time.


The Deputy Chair of Committees (Hon Martin Aldridge) in the chair; Hon Alannah MacTiernan (Minister for Regional Development) in charge of the bill.

Clause 1: Short title —

Comments and speeches from various members

Clause put and passed.
Committee interrupted, pursuant to standing orders.


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