Tourism Services Act 2003 - Queensland

Service summary

The main purpose of this Act is to provide for fair trading in the tourism services industry by -

  1. establishing a registration system for inbound tour operators; and
  2. providing for codes of conduct for inbound tour operators and tour guides including the setting of minimum standards for
    1. carrying on the business of an inbound tour operator; or
    2. tour guides; and
  3. prohibiting unconscionable conduct by inbound tour operators and tour guides; and
  4. promoting sound business practices by inbound tour operators and tour guides.

The Tourism Services Act 2003 (The Act) is the result of extensive consultation with the tourism industry and its many clients.

The Act aims to ensure inbound tour operators and tour guides operate in an ethical and professional way, and in the best interests of clients.

Specifically, the Act seeks to eliminate unfair practices from the tourism industry such as:

  • controlled shopping (eg. restricting the choice of shopping venues, taking control of tourists passports and wallets, guarding hotel and shop doorways and making defamatory remarks about retailers who do not pay a fee or commission for bringing tourists to their shop), misrepresentations;
  • overcharging for goods and services; and
  • unconscionable conduct (eg. operators who pressure traders into paying excessive commissions by threatening to influence tour groups to by pass visits to traders who do not pay a commission.

This will benefit tourists, the industry itself and associated traders by creating a level playing field for honest traders who will no longer have to compete against those participating in illegal and unfair practices.

The following Subordinate Legislation should be examined:

Tourism Services Regulation 2003

Tourism Services (Code of Conduct for Inbound Tour Operators) Regulation 2003

Service type

Regulatory Obligation

An obligation defined in law. A business must comply with relevant services.

Definition of terms

Associated person

an associated person of an applicant for registration or renewal of registration is a person who is not the applicant, but nevertheless is, or would be if the registration were granted or renewed, in effective control of the applicants business. A person who is in "effective control" of a business includes a person who: is regularly or usually in charge of the business; or regularly directs staff of the business in their duties; or is in a position to control or substantially influences the business. NOTE; If an applicant for registration or renewal of registration, or a registrant, is a corporation, each executive officer of the corporation is taken to be an "associated person" of the applicant or registrant.

Inbound tour operator
  1. An "inbound tour operator" is a person who alone or with others:
    1. carries on a business of selling to any of the following entities who are overseas entities, for an inclusive price, travel packages that include persons visiting, or travelling in, Queensland
      1. wholesalers of travel packages;
      2. retailers of travel packages;
      3. corporate buyers of travel packages, including, for example, an overseas corporation that buys travel packages for its employees; or
    2. holds himself, herself or itself out in any way as carrying on a business mentioned in paragraph (a); or
    3. is entitled to share in the income of a business mentioned in paragraph (a).
  2. For subsection (1), it is immaterial whether or not the person (a)has a place of business in Queensland; or (b)directly or indirectly provides other tourism services to persons who use a travel package of the inbound tour operator.
  3. A person mentioned in subsection (1) (a), (b) or (c) is taken to "carry on the business of an inbound tour operator".
  4. Despite subsections (1)(c) and (3), a person is not an inbound tour operator, and is not taken to carry on the business of an inbound tour operator, only because the person is entitled to share, as a shareholder, in the income of the business of an inbound tour operator that is a corporation.
Tour guide
  1. An individual who, for reward, personally supplies guiding services to tourists.
  2. For subsection (1), an individual supplies guiding services for reward if the individual receives a payment or other benefit for supplying the services, regardless of
    1. who makes the payment or provides the other benefit; or
    2. where the payment is made or the other benefit is provided. Example of benefit other than money: provision of accommodation, flights or food.
  3. Also, for subsection (1), an individual is taken to supply guiding services for reward if he or she supplies the services as work experience, regardless of whether or not he or she is, or has an expectation he or she will be, later paid for supplying guiding services.
  4. Further, for subsection (1), an individual supplies guiding services whether the individual supplies the services for the whole, or only part, of the time the tourists are in Queensland.
Travel package

means the prearranged provision of a combination of activities, goods or services for one person that includes at least two of the following:

  1. accommodation, with or without the provision of food;
  2. guiding services;
  3. food other than food provided with accommodation;
  4. tourism activities. Examples of tourism activities: ballooning; rafting trips; bushwalking; fishing.
  5. translation services;
  6. transport, including transport to, from and within, Queensland;
  7. visiting, or introductions to, retailers at a travel destination;
  8. visiting tourist attractions at a travel destination, including, but not limited to, entry to the attractions.

Examples of tourist attractions: theme parks; places of entertainment; beaches; national parks.

  1. other activities, goods or services prescribed under a regulation.

Additional information

The Office of Fair Trading keeps a public register of occupations regulated under the following acts:

Introduction Agents Act 2001

Property Agents and Motor Dealers Act 2000

Second hand Dealers and Pawnbrokers Act 2003

Security Providers Act 1993

Tourism Services Act 2003

Travel Agents Act 1988.

You can search the register online for free at www.fairtrading.qld.gov.au. A printed licence extract can be obtained by contacting the Office of Fair Trading on 13 QGOV (13 74 68), there is a fee for this service.

 

Appeal

Appeal process

Lodgement

Compliance Mechanisms and Penalties

To ensure high standards are maintained and monitored, the Act requires that inbound tour operators whose primary business is selling travel packages overseas cannot carry on business unless registered. A fine of 200 penalty units applies to contravention of this requirement.

Because the Penalties and Sentences Act 1992 provides that each penalty unit is worth $110, the maximum fine for failing to register is $22,000. If a corporation fails to register, the Penalties and Sentences Act 1992 provides that the penalty is five times the amount for an individual. Therefore, the maximum fine for corporations who fail to register is $110,000.

An inbound tour operator or tour guide who is found to have contravened the prohibition on unconscionable conduct may be subject to civil penalties or compensation orders. The penalty that can be ordered is up to the limit of the District Courts civil jurisdiction (currently $250,000), and if action is taken in the Commercial and Consumer Tribunal, a penalty of 200 penalty units ($22,000) or compensation up to the limit of the Magistrates Court Civil jurisdiction (currently $50,000) can be ordered.

The Act provides that when deciding the amount an inbound tour operator or tour guide may be ordered to pay by way of penalty, the District Court or the Tribunal may consider certain matters including the following:

  • the inbound tour operators or tour guides conduct before and after the contravention;
  • the financial loss caused; and
  • action taken to remedy the situation.

In addition to any penalty for the offence, the court may, if the offender is a registered inbound tour operator, make an order:

  • suspending the registration for a stated period;
  • cancelling registration; or
  • imposing, amending or revoking conditions on registration.

The court may also order the inbound tour operator, whether registered or not, or the tour guide pay compensation to a person who has suffered financial loss because of their conduct relating to the offence.

Alternatively, disciplinary proceedings can be taken against an inbound tour operator who contravenes the Act. The Act clearly spells out that a registered or unregistered inbound tour operator or tour guide cannot be both prosecuted for an offence against the Act and dealt with by way of disciplinary proceedings for the one contravention.

The Commissioner for Fair Trading may also seek an undertaking from an inbound tour operator or tour guide not to continue or repeat an act or omission the Commissioner believes contravenes the Act.

The mandatory Code of Conduct for Inbound Tour Operators and the Act and Regulation under the Act include a number of offences punishable by maximum fines of 200 penalty units. These offences include, for example:

  • failing to keep appropriate records, including itineraries and quotations;
  • failing to have a written policy about dispute resolution processes; and
  • charging tourists for goods or services, such as entry to a beach, available free to the
general public.

Review or Appeal Mechanisms

Appeals are possible under the Act.


Administering agency

Department of Justice and Attorney-General
Office of Fair Trading
Fair Trading Policy Branch

Contact details

Queensland Government Service Centre
Department of Justice and Attorney-General
Office of Fair Trading
Fair Trading Policy Branch

Operating address:
Upper Plaza Terrace
33 Charlotte Street
Brisbane, Queensland 4000
Mailing address:
GPO Box 3111
Brisbane, Queensland 4001

Phone:

07 3405 0985

Phone:

13 QGOV (13 74 68)

Website:

Office of Fair Trading Opens in a new browser window

Supporting information

Disclaimer

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