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Legislative Assembly for the ACT: 2001 Week 9 Hansard (23 August) . . Page.. 3252 ..

MR STEFANIAK (continuing):

Trading to accept and enforce undertakings from traders, and they permit the Commissioner for Fair Trading to require a trader to substantiate a claim made in the course of trading.

A number of issues have been raised in relation to the bill. Firstly, I refer to issues of financial services and practices. Concerns have been raised about an amendment to the ACT Fair Trading Act to remove the application of part 2 of the act dealing with unfair practices, financial services and products. Let me state at the outset that it is not the government's intention to reduce in any way the ambit of consumer protection law in the ACT. The proposed amendment is an attempt to reconcile Commonwealth law and the ACT legislation for the benefit of consumers by avoiding consumer confusion. It arises because the territory's law-making power is circumscribed by the provisions of the Australian Capital Territory (Self-Government) Act of 1988.

As the Commonwealth increases the scope of corporations law, any certainty about the capacity of the ACT to legislate about matters dealt with in the Commonwealth legislation begins to diminish. The ACT government continues to negotiate with the Commonwealth for the making of a Commonwealth regulation under subsection 23 (2) of the self-government act 1988 to permit the continued operation of ACT laws that would otherwise be able to operate pursuant to section 12AE of the ASIC Act. If the Commonwealth gives an indication that such regulations will be made it will be possible to remove the technical amendment dealing with financial services and products in the bill, as the ACT and the Commonwealth legislation would then be capable of operating concurrently.

I come now to comments made by the scrutiny of bills committee. The committee raised two issues in relation to the operation of proposed new sections 12I and 12J. The first issue raised relates to the operation of proposed new paragraph 12 (1) (b) where an investigator may enter premises in specified circumstances. In response to any concerns that the committee may have in relation to these two provisions, new paragraphs 12 (1) (b) and 12 (1) (c), it is noted that new 12 (1) (b) presupposes implied consent, given that any person can enter the premises for whatever reason when they are open to the public. There is no logical reason why an inspector, or any other member of the public, could not enter the premises when they are open to the public. Similar reasoning applies to the operation of new paragraph 12 (1) (c) where an investigator, or any other member of the public, has the right to enter business premises during business hours at the premises.

The second issue raised goes to the operation of new sections 12I and 12J where an investigator makes a copy of any document under paragraph 12 (1) (b). The committee further notes that new sections 12I and 12J will apply only where the person is required to produce a document, noting that there appears to be no power to make such a requirement. In this regard the committee seems to have overlooked proposed new section 12D, "General powers on entry to premises". That section provides the following:

(1) An investigator who enters premises under this division may, for the fair trading legislation, do any of the following in relation to the premises or anything on the premises.

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