Fair Trading Regulations 2025

Several concepts recur across the Regulations. A “relevant interest” in relation to a repairer is defined by reference to section 28K(3) of the Act. The Regulations do not re‑state the definition, but it captures financial or ownership links that could bias an insurer’s recommendation of a repairer. The disclosure obligation in r 5(1) requires the insurer to reveal any relevant interest “in relation to a repairer”. The “statement of relevant interest” is narrowly prescribed as only the name, address and contact details of the repairer (r 5(6)). It does not require disclosure of the nature or size of the interest.

The concept of “choice of repairer” in r 6 turns on whether the insurance policy contains a provision allowing the policyholder to choose which repairer is engaged. The regulation does not define what constitutes a “choice”. An insurer could draft a policy that nominates a repairer but gives the policyholder a right to request a different one; that would still technically contain a provision “allowing” choice. The regulation does not mandate that the choice be unfettered or that the insurer cannot steer the consumer.

“Designated motor vehicle” is defined in r 7(2) by reference to a class C motor vehicle licence under the Motor Vehicles Act 1959. The exclusion of quad bikes and special purpose vehicles (as defined in the Motor Vehicles (National Heavy Vehicle Registration Fees) Regulations 2008) means that policies covering those vehicles still attract the disclosure obligations even if the policyholder is not the owner. But for most private passenger cars, the exemption in r 7(1)(b) (policyholder not the owner) is significant: it removes the disclosure duty where the policyholder is, for example, a finance company or lessor, not the driver.

“Recreational services” is defined in Form 1 as services consisting of participation in a sporting activity or similar leisure‑time pursuit, or any other activity involving a significant degree of physical exertion or risk undertaken for recreation, enjoyment or leisure. This definition is broad enough to cover gym memberships, adventure sports, dance classes, and many organised sporting events. The exclusion, restriction or modification of liability under section 42 of the Act can only apply to personal injury (which includes mental and nervous shock and death, per the Form 1 definitions). Economic loss or property damage cannot be excluded via this mechanism.

“Expiation fee” is a fixed penalty that allows an alleged offender to avoid court proceedings by paying the prescribed amount. The table in r 10 fixes fees for specific sections of the Australian Consumer Law (SA). The fees are not scaled by the seriousness of the conduct or the size of the business. For example, a large corporation and a sole trader each face the same $1,200 fee for a false representation about goods. The regulation does not state whether the fees are indexed or whether they apply per offence or per transaction.

The Regulations directly affect four categories of commercial actors. First, insurers that issue motor vehicle insurance policies in South Australia are the primary target of rr 5-7. They must redesign their onboarding, renewal and claims processes to ensure the two separate disclosures are made at the three required time points. This affects not only large general insurers but also smaller niche insurers and even self‑insured entities that issue policies. The exemption for one‑off repair engagements (r 5(5)) reduces the burden for insurers that do not have ongoing relationships with repairers, but it also creates a compliance trap: an insurer that has a loose framework agreement with a panel of repairers may be deemed to have an ongoing arrangement even if each repair is individually authorised.

Second, policyholders are the recipients of the disclosures. For most individual motorists, the disclosures will add to the volume of paper or digital information at the point of sale and claim. The practical effect on consumer choice depends on how prominently the choice‑of‑repairer statement is delivered. A statement read over the telephone or buried in a renewal notice is unlikely to change behaviour. But the regulation does impose a duty on insurers to make the information available, and the website requirement (r 5(4)) does create a public record that consumer advocates or watchdogs could monitor.

Third, suppliers of recreational services are directly affected by r 8 and Form 1. Any business that offers activities covered by the definition , sports centres, adventure parks, fitness studios, horse riding schools, surf schools, trampoline parks , can use the form to contract out of liability for personal injury. However, the form must be used exactly as prescribed. A supplier that modifies the wording or fails to get a signed and dated copy cannot rely on section 42 of the Act to limit liability. The requirement that a consumer sign the form creates a documentary burden; it means verbal waivers or online click‑through agreements are not sufficient, unless they incorporate the exact form and the consumer signs electronically in a way that satisfies the “signing” and “dating” requirement. The seven‑day copy‑on‑request obligation (r 8(4)) is a minor administrative cost.

Fourth, any person or business alleged to have committed an offence under the specified sections of the Australian Consumer Law (SA) faces the expiation fees fixed in r 10. This includes retailers, manufacturers, advertisers, telemarketers, and providers of goods or services. The fees are modest relative to potential court penalties (which can run into hundreds of thousands of dollars for corporations), so they function as a low‑cost resolution mechanism for regulators. They also create an incentive for businesses to settle rather than contest minor breaches.

The Regulations create a set of positive duties on insurers and suppliers of recreational services, and corresponding rights for consumers and policyholders.

Insurers must disclose any relevant interest in a repairer. The duty arises under r 5(1) and is owed to the “holder of the policy of insurance”. The disclosure must include a statement of relevant interest (i.e., the repairer’s name, address and contact details) plus a notice that all such statements are on the website (r 5(2)). The insurer must also maintain the website listing in a searchable form (r 5(4)). The insurer has a right to an exemption under r 5(5) for one‑off repair arrangements , but it is an exemption, not a defence: the insurer bears the burden of showing the arrangement was one‑off.

Insurers must also disclose whether the policy does or does not contain a provision allowing the policyholder to choose the repairer (r 6(1)). This duty applies at three separate times: entry, renewal, and claim. A failure to make the disclosure at any one of these times would be a breach of the regulation and, by extension, of section 28K(2) of the Act. The method of disclosure is flexible (r 6(2)), but the insurer cannot simply rely on a general terms document; it must proactively “provide” the statement. A consumer who alleges non‑disclosure could raise it in a dispute about a repairer’s work.

For suppliers of recreational services, the key right is the ability to exclude, restrict or modify liability for personal injury by using Form 1 (r 8(1), (2)). This is a right, not a duty: a supplier may choose not to use the form and remain subject to the full statutory guarantees under sections 60 and 61 of the Australian Consumer Law (SA). The duty on the supplier is to use the exact form with the prescribed particulars, to have it signed and dated by the consumer, and to provide a copy within seven days if requested (r 8(3), (4)). The consumer has the right to refuse to sign, but the supplier may then decline to provide the service (Form 1: “The supplier may refuse to provide you with the services if you do not agree”). Importantly, the form states that a child under 18 cannot legally agree, and a parent or guardian cannot agree on behalf of the child. This preserves the child’s right to sue even if a parent signs.

The expiation provisions in r 10 do not create duties; they set the price at which an alleged offender can avoid prosecution. The right is to pay the fee and receive a clearance. The regulator (Consumer and Business Services) gains the ability to issue expiation notices for specific ACL offences at known amounts.

The Regulations themselves do not create new criminal offences or maximum penalties. Instead, they set the fixed expiation fees for existing offences under the Australian Consumer Law (SA). An expiation fee is an alternative to prosecution: if the person pays the fee within the prescribed time, they cannot be prosecuted for that alleged offence. The fees range from $150 (sections 165, 196, 200, 201, 202, 205, 206) to $500 (sections 169-183, 192-193) to $1,200 (sections 151-164, 166-168, 194-195, 197-199, 203-204). The fee for multiple pricing (s 165) is conspicuously low at $150 , perhaps reflecting the minor nature of the breach. Similarly, failure to comply with a substantiation notice or to report a serious injury attracts only $150.

The practical effect is that enforcement agencies can issue a fixed‑penalty notice without going to court. This reduces the administrative cost of enforcement for the regulator but also reduces deterrence for large businesses, for whom $1,200 is a trivial cost of doing business. There is no upward adjustment for turnover or repetition. A serial offender can pay the fee multiple times without facing a court‑imposed penalty unless the regulator decides to prosecute rather than expiate.

Enforcement of the insurer disclosure duties (rr 5, 6) is via the Act. Breach of a regulation made under the Act is an offence under section 97(2)(c) of the Act. The Act itself carries maximum penalties that are not altered by these Regulations. However, the Act’s enforcement regime includes the power to issue embargo notices. Regulation 9 prescribes additional content for an embargo notice under section 78C of the Act: the notice must describe the thing, name the person or state it is to be affixed, identify the authorised officer and their telephone number, and include the date of service or affixation. This ensures the notice is specific enough to be enforceable.

For recreational services, the consequence of not using Form 1 correctly is that the supplier remains fully liable for personal injury. Using a non‑compliant form is not an offence, but it deprives the supplier of the limitation defence. A consumer who signs a defective form could argue it is ineffective, and a court would likely disregard the limitation.

The Regulations sit under the Fair Trading Act 1987 (SA) and directly reference that Act. Section 3 of the Act defines “related Act” by reference to regulations. Regulation 4 prescribes a list of seven statutes as related Acts, including the Hairdressers Act 1988 and strata/community titles legislation. This may mean that enforcement powers under the Act (such as investigation powers or banning orders) extend to conduct regulated under those other Acts.

For insurers, the disclosure duties interact with the Motor Vehicles Act 1959 through the definition of “designated motor vehicle”. That definition picks up class C licence categories and also excludes quad bikes and special purpose vehicles as defined in the Motor Vehicles (National Heavy Vehicle Registration Fees) Regulations 2008. This creates a cross‑reference to Commonwealth heavy vehicle registration regulations, which may themselves be amended over time.

The recreational services provisions interact with the Australian Consumer Law (SA) as set out in Schedule 2 of the Act. Sections 60 and 61 of the ACL (SA) provide statutory guarantees for due care and skill, fitness for purpose, and reasonable result. Section 42 of the Act allows those guarantees to be excluded, restricted or modified for recreational services, but only in the prescribed form. This is a departure from the usual rule under the ACL that statutory guarantees cannot be excluded for services ordinarily acquired for personal, domestic or household use. The policy rationale is that voluntary participation in risky activities should allow suppliers to manage liability without full insurance. The form must be exactly as prescribed; any deviation likely means the exclusion is void under section 64 of the ACL (SA), which prohibits contracting out of guarantees.

The expiation provisions operate within the broader framework of the Criminal Law (Sentencing) Act 1988 and the Summary Procedure Act 1921. Paying an expiation fee does not constitute an admission of guilt but does finalise the matter. If the fee is not paid, the matter may proceed to court, where higher penalties apply.

The repeal of the Fair Trading Regulations 2010 means that any transitional provisions or earlier prescribed forms (such as a different recreational services waiver) are replaced. Businesses that relied on the previous form must update to the 2025 Form 1. The new regulations commenced on 17 July 2025 (r 2).

These are principal regulations, not amending regulations. They replace the Fair Trading Regulations 2010 outright. There is no amendment history within the text because the instrument is new. The legislative history note indicates the regulations were published in the South Australian Government Gazette on 17 July 2025 (Gazette 17.7.2025 p2661) and came into operation the same day (r 2). No subsequent amendments are referenced. This means the instrument is in its original form and has not been tested or interpreted by the courts as of the date of this analysis.

The earlier 2010 regulations are repealed but not saved. Any reference in a contract or document to the 2010 regulations should now be read as a reference to the 2025 regulations, but the substantive differences (especially in the recreational services form and the insurer disclosure provisions) mean that reliance on the old form could be risky. Practitioners should check the transitional provisions in the Act; the regulations themselves do not contain any savings or transitional provisions.

There is no litigation history to report. The regulations commenced on 17 July 2025 and this analysis is written in the immediate aftermath of that date. No South Australian court or tribunal has yet considered the interpretation of the 2025 regulations. However, one can anticipate potential disputes.

The most likely area of litigation is the recreational services waiver. Disputes may arise over whether a particular activity falls within the definition of “recreational services” (e.g., a fitness class with minimal exertion, or a corporate team‑building event). Also likely are disputes over whether the form was properly signed and dated, especially where an online waiver system is used. A consumer who suffers serious injury may argue that clicking a box does not constitute “signing and dating the completed form” within the meaning of r 8(3). The regulation does not define “signing” or “dating”. Traditional ink on paper is safe; digital signatures are plausible but not explicitly validated.

For insurer disclosures, litigation might arise if a policyholder claims economic loss from being directed to a repairer in which the insurer had an undisclosed relevant interest. The remedy would be under the Act, not the regulations directly. A failure to disclose choice of repairer might lead to a claim of misleading or deceptive conduct (s 18 ACL). The expiation fees table could be challenged if a regulator issues a notice for an offence that the alleged offender argues does not apply , but that is a challenge to the underlying offence, not the fee quantum.

Several traps await the unwary practitioner or business.

First, the exemption in r 5(5) for one‑off repair arrangements is narrow. It applies only to relevant interests “of a kind described in paragraph (b) of the definition of relevant interest” , that is, interests arising from a contract or arrangement under which the repairer is engaged or authorised to undertake repairs. But the exemption only applies if the arrangement “facilitates the undertaking of repairs on a one‑off basis” and “does not establish an arrangement between the insurer and the repairer for undertaking repairs on behalf of the insurer on an ongoing basis”. An insurer that uses a preferred repairer panel but sends work on a job‑by‑job basis may still fall outside the exemption if the panel agreement itself creates an ongoing arrangement. The line between a standing panel and a series of one‑off engagements is blurry.

Second, the disclosure requirement in r 6(1)(d) and (e) is binary: the insurer must state whether the policy does or does not contain a provision allowing choice. An insurer that offers a hybrid policy , choice only in certain circumstances , must carefully characterise it. A misleading statement could attract ACL liability.

Third, the exemption in r 7(1)(b) for policies where the holder is not the owner of the vehicle has a big practical impact. Fleet policies, leased vehicles, and hire cars often have the company as policyholder and the driver as a named driver. The company is the policyholder; the driver is not the owner. The insurer need not make any disclosure to the driver. The driver may not know about their right to choose a repairer. This seems a significant gap.

Fourth, for recreational services, the biggest trap is that a parent or guardian cannot waive a child’s rights. A business that obtains a signed Form 1 from a parent for a child’s participation cannot rely on it to exclude liability if the child is injured. The form itself warns of this. Moreover, a child under 18 cannot sign for themselves. So for minors, the waiver is legally useless. Businesses that cater to minors must either accept the full liability or not offer the service to minors without separate insurance.

Fifth, the expiation fees are not indexed. Over time, inflation will erode their real value, making them progressively less of a deterrent. The regulation does not provide for periodic adjustment.

Sixth, the seven‑day copy requirement in r 8(4) applies only if the consumer requests a copy. If a consumer loses the signed form and the supplier cannot produce it, the supplier loses the ability to prove the limitation was agreed. Best practice is to retain copies proactively.

An insurer must begin by auditing all motor vehicle policies to determine which ones fall within the “designated motor vehicle” definition. For those that do not, the disclosure obligations in rr 5 and 6 do not apply. For policies that do, the insurer should:

• Identify all repairers with whom it has a “relevant interest” (as defined in s 28K(3) of the Act). For each such repairer, prepare a “statement of relevant interest” containing the repairer’s name, address and contact details.
• Build or update a web page that lists all current statements of relevant interest and provides search functionality (r 5(4)). The page must be “easily accessible” , not hidden behind multiple logins.
• At the time a policy is entered into, renewed, or a claim is made, provide the policyholder with both the statement of relevant interest and a notice advising that all statements are on the website (r 5(2)). Also provide a separate statement telling the policyholder whether the policy does or does not contain a provision allowing them to choose the repairer (r 6(1)). These disclosures can be combined but must be given at three distinct times. A single disclosure at inception is not enough; it must be repeated at renewal and at claim.
• Ensure the methods of delivery comply with r 5(3) and r 6(2). If using electronic means, the insurer and policyholder must have agreed to that method. A blanket email consent in the policy terms may suffice.
• For one‑off repair arrangements, document that the arrangement is truly one‑off and does not create ongoing expectations. This will be critical if an exemption under r 5(5) is later challenged.

A supplier of recreational services should:

• Draft a Form 1 exactly as set out in Schedule 1, filling in the supplier’s name and, if choosing to restrict or modify liability rather than exclude it, specify the restriction/modification in the spaces provided. Strike out inapplicable options.
• Present the form to the consumer before the service is provided. Obtain the consumer’s signature and date. Ensure a witness signs and provides their name and address (the form requires a signature and address of witness). For electronic transactions, consider whether a digital signature and date meet the requirements; this is untested, but the safest route is a wet signature on a paper copy or a legally recognised electronic signature platform that records the signing and dating.
• Keep the signed form on file. If the consumer requests a copy, provide it within seven days.
• Do not rely on the form for any participant under 18. The supplier either must accept full liability for minors or implement a separate risk‑management strategy (e.g., additional insurance, modified activities, parental supervision waivers that do not purport to exclude liability). The supplier should also train staff not to accept a parent’s signature on behalf of a child as a valid waiver.
• Review the definition of “recreational services” to confirm the activity is covered. A low‑intensity activity without significant physical exertion or risk may not qualify. If uncertain, assume the limitation is ineffective and do not rely on it.

For businesses subject to the ACL (SA) offences listed in r 10, compliance involves avoiding the conduct that gives rise to the offence. But practically, the expiation fees create a financial incentive to self‑audit: a $1,200 fee for a single false representation may be cheaper than implementing a rigorous compliance programme. That is a perverse incentive. Businesses should still prioritise compliance, as repeated expiation notices may trigger regulatory attention and a decision to prosecute rather than expiate.

Finally, any person served with an embargo notice under s 78C should verify that the notice contains all prescribed details under r 9: a description of the thing, the name of the person or a statement that it is affixed, the authorised officer’s name, signature and business telephone number, and the date. A notice lacking these details may be invalid and open to challenge.