Chapter 1 -- Introduction
1
Application of this Schedule
This Schedule applies to the extent provided by:
(a) Part XI of the Competition and Consumer Act; or
(b) an application law.
2 Definitions
(1)
In this Schedule:
"ABN" has the meaning given by section 41 of
the A New Tax System (Australian Business Number) Act 1999 .
"acceptable
quality" : see sections 54(2) to (7).
"ACN" has the meaning given by
section 9 of the Corporations Act 2001 .
"acquire" includes:
(a) in relation to goods--acquire by way of purchase, exchange or taking
on lease, on hire or on hire-purchase; and
(b) in relation to services--accept.
Note: Section 5
deals with when receipt of a donation is an acquisition.
"adverse publicity
order" : see section 247(2).
"affected person" , in relation to goods,
means:
(a) a consumer who acquires the goods; or
(b) a person who acquires the goods from the consumer (other than for
the purpose of re-supply); or
(c) a person who derives title to the goods through or under the
consumer.
"agreement document" : see section 78(2).
"annual
turnover" , of a body corporate during a 12-month period, means the sum of the
values of all the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make, during the
12-month period, other than:
(a) supplies made from any of those bodies corporate to any other of
those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the
A New Tax System (Goods and Services Tax) Act 1999 ); or
(d) supplies that are not made in connection with an enterprise that the
body corporate carries on; or
(e) supplies that are not connected with Australia.
Expressions used
in this definition that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in
that Act.
"applicable industry code" has the meaning given by
section 51ACA(1) of the Competition and Consumer Act.
"application law"
has the same meaning as in section 140 of the
Competition and Consumer Act.
"article" includes a token, card or document.
"ASIC" means the Australian Securities and Investments Commission.
"assert a
right to payment" : see section 10(1).
"associate regulator" :
(a) for the purposes of the application of this Schedule as a law of the
Commonwealth--means a body that is, for the purposes of the application of
this Schedule as a law of a State or a Territory, the regulator within the
meaning of the application law of the State or Territory; or
(b) for the purposes of the application of this Schedule as a law of a
State or a Territory--means:
(i) the Commission; or
(ii) a body that is, for the purposes of the application of this
Schedule as a law of another State or a Territory, the regulator within the
meaning of the application law of that other State or Territory.
"authority" , in relation to a State or a Territory (including an external
Territory), means:
(a) a body corporate established for a purpose of the State or the
Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a
body corporate referred to in paragraph (a), has a controlling interest.
"authority of the Commonwealth" means:
(a) a body corporate established for a purpose of the Commonwealth by or
under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body
corporate referred to in paragraph (a), has a controlling interest.
"banker" has the same meaning as in section 4(1) of the
Competition and Consumer Act.
"ban period" for an interim ban: see
section 111(1).
"business" includes a business not carried on for
profit.
"business day" , in relation to an unsolicited consumer agreement,
means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place where the agreement was made.
"business or professional relationship" includes a relationship between
employer and employee, or a similar relationship.
"call on" , in relation to
negotiating an unsolicited consumer agreement, does not include call by
telephone.
"Commission" has the same meaning as in section 4(1) of the
Competition and Consumer Act.
"Commonwealth mandatory standard" , in
relation to goods, means a mandatory standard in respect of the goods imposed
by a law of the Commonwealth.
"Commonwealth Minister" means the Minister who
administers Part XI of the Competition and Consumer Act.
"
Competition and Consumer Act" means the Competition and Consumer Act 2010 .
"consumer" : see section 3.
"consumer contract" : see
section 23(3).
"consumer goods" means goods that are intended to be
used, or are of a kind likely to be used, for personal, domestic or household
use or consumption, and includes any such goods that have become fixtures
since the time they were supplied if:
(a) a recall notice for the goods has been issued; or
(b) a person has voluntarily taken action to recall the goods.
"continuing credit contract" : see section 14(1).
"contravening
conduct" : see section 239(1)(a)(i).
"court" , in relation to a matter,
means any court having jurisdiction in the matter.
"covering" includes a
stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.
"credit card" : see section 39(5).
"credit provider" means a person
providing, or proposing to provide, in the course of a business carried on by
the person, credit to consumers in relation to the acquisition of goods or
services.
"dealer" : see section 71.
"debit card" : see
section 39(6).
"declared term" : see section 239(1)(a)(ii).
"defective goods action" means an action under section 138, 139, 140 or
141, and includes such an action because of section 138(3) or 145.
"disclosed purpose" : see section 55(2).
"displayed price" : see
sections 47(2) to (5).
"document" means any record of information, and
includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced
with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.
"egg" has the meaning given
by subsection 137A(3).
"enforcement proceeding" means:
(a) a proceeding for an offence against Chapter 4; or
(b) a proceeding instituted under Chapter 5 (other than under
sections 237 and 239).
"evidential burden" , in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist.
"express
warranty" , in relation to goods, means an undertaking, assertion or
representation:
(a) that relates to:
(i) the quality, state, condition, performance or characteristics of the
goods; or
(ii) the provision of services that are or may at any time be required
for the goods; or
(iii) the supply of parts that are or may at any time be required for
the goods; or
(iv) the future availability of identical goods, or of goods
constituting or forming part of a set of which the goods, in relation to which
the undertaking, assertion or representation is given or made, form part; and
(b) that is given or made in connection with the supply of the goods, or
in connection with the promotion by any means of the supply or use of the
goods; and
(c) the natural tendency of which is to induce persons to acquire the
goods.
"financial product" has the meaning given by section 12BAA of
the Australian Securities and Investments Commission Act 2001 .
"financial
service" has the meaning given by section 12BAB of the
Australian Securities and Investments Commission Act 2001 .
"free item"
includes a free service.
"free range egg" has the meaning given by
subsection 137A(4).
"gift card" : see section 99A.
"goods"
includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to land or
not; and
(d) gas and electricity; and
(e) computer software; and
(f) second-hand goods; and
(g) any component part of, or accessory to, goods.
"grown" : see
section 255(7).
"GST" has the meaning given by section 195-1 of
the A New Tax System (Goods and Services Tax) Act 1999 .
"industry code" has
the meaning given by section 51ACA of the Competition and Consumer Act.
"information provider" : see sections 19(5) and (6).
"information
standard" : see sections 134(1) and 135(1).
"inner container" includes
any container into which goods are packed, other than a shipping or airline
container, pallet or other similar article.
"interest" , in relation to
land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a
building erected on the land, arising by virtue of the holding of shares, or
by virtue of a contract to purchase shares, in an incorporated company that
owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
"interim ban" : see sections 109(1) and (2).
"involved" : a person is
involved, in a contravention of a provision of this Schedule or in conduct
that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention; or
(d) has conspired with others to effect the contravention.
"joint
liability proceedings" means proceedings relating to the joint and several
liability under section 278 of a linked credit provider and a supplier of
goods or services.
"label" includes a band or ticket.
"lay-by agreement" :
see section 96(3).
"linked credit contract" : see section 278(2).
"linked credit provider" , in relation to a supplier of goods or services,
means a credit provider:
(a) with whom the supplier has a contract, arrangement or understanding
relating to:
(i) the supply to the supplier of goods in which the supplier deals; or
(ii) the business carried on by the supplier of supplying goods or
services; or
(iii) the provision to persons to whom goods or services are supplied by
the supplier of credit in respect of payment for those goods or services; or
(b) to whom the supplier, by arrangement with the credit provider,
regularly refers persons for the purpose of obtaining credit; or
(c) whose forms of contract, forms of application or offers for credit
are, by arrangement with the credit provider, made available to persons by the
supplier; or
(d) with whom the supplier has a contract, arrangement or understanding
under which contracts, applications or offers for credit from the credit
provider may be signed by persons at premises of the supplier.
"loan
contract" means a contract under which a person in the course of a business
carried on by that person provides or agrees to provide, whether on one or
more occasions, credit to a consumer in one or more of the following ways:
(a) by paying an amount to, or in accordance with the instructions of,
the consumer;
(b) by applying an amount in satisfaction or reduction of an amount owed
to the person by the consumer;
(c) by varying the terms of a contract under which money owed to the
person by the consumer is payable;
(d) by deferring an obligation of the consumer to pay an amount to the
person;
(e) by taking from the consumer a bill of exchange or other negotiable
instrument on which the consumer (whether alone or with another person or
other persons) is liable as drawer, acceptor or endorser.
"major failure" :
see sections 260 and 268.
"mandatory standard" , in relation to goods,
means a standard:
(a) for the goods or anything relating to the goods; and
(b) that, under a law of the Commonwealth, a State or a Territory, must
be complied with when the goods are supplied by their manufacturer, being a
law creating an offence or liability if there is such non-compliance;
but
does not include a standard which may be complied with by meeting a higher
standard.
"manufacturer" : see section 7.
"market" has the same
meaning as in section 4E of the Competition and Consumer Act.
"materials" , in relation to goods, means:
(a) if the goods are unmanufactured raw products--those products; and
(b) if the goods are manufactured goods--all matter or substances used
or consumed in the manufacture of the goods (other than matter or substances
that are treated as overheads); and
(c) in either case--the inner containers in which the goods are packed.
"mixed supply" : see section 3(11).
"National Credit Code" has the
meaning given by section 5(1) of the
National Consumer Credit Protection Act 2009 .
"negotiated by telephone" :
see section 78(3).
"negotiation" : see section 72.
"new
participant" : see section 45(2).
"non-linked credit contract" : see
section 287(5).
"non-party consumer" means:
(a) in relation to conduct referred to in section 239(1)(a)(i)--a
person who is not, or has not been, a party to an enforcement proceeding in
relation to the conduct; and
(b) in relation to a term of a contract referred to in
section 239(1)(a)(ii)--a person who is not, or has not been, a party to
an enforcement proceeding in relation to the term.
"participant" , in a
pyramid scheme, means a person who participates in the scheme.
"participate"
, in a pyramid scheme: see section 44(3).
"participation payment" : see
section 45(1)(a).
"permanent ban" : see sections 114(1) and (2).
"post-supply fee" : see section 99D(2).
"premises" means:
(a) an area of land or any other place (whether or not it is enclosed or
built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
"price" , of goods or services,
means:
(a) the amount paid or payable (including any charge of any description)
for their acquisition; or
(b) if such an amount is not specified because the acquisition is part
only of a transaction for which a total amount is paid or payable:
(i) the lowest amount (including any charge of any description) for
which the goods or services could reasonably have been acquired from the
supplier at the time of the transaction or, if not from the supplier, from
another supplier; or
(ii) if they could not reasonably have been acquired separately from
another supplier--their value at the time of the transaction.
"prior
negotiations or arrangements" , in relation to the acquisition of goods by a
consumer, means negotiations or arrangements:
(a) that were conducted or made with the consumer by another person in
the course of a business carried on by the other person; and
(b) that induced the consumer to acquire the goods, or otherwise
promoted the acquisition of the goods by the consumer.
"product related
service" means a service for or relating to:
(a) the installation of consumer goods of a particular kind; or
(b) the maintenance, repair or cleaning of consumer goods of a
particular kind; or
(c) the assembly of consumer goods of a particular kind; or
(d) the delivery of consumer goods of a particular kind;
and, without
limiting paragraphs (a) to (d), includes any other service that relates
to the supply of consumer goods of that kind.
"proof of transaction" : see
section 100(4).
"publish" , in relation to an advertisement, means
include in a publication intended for sale or public distribution (whether to
the public generally or to a restricted class or number of persons) or for
public display (including in an electronic form).
"pyramid scheme" : see
section 45(1).
"recall notice" : see section 122(1).
"recovery
period" : see section 41(4).
"recruitment payment" : see
section 45(1)(b).
"regulations" means regulations made under
section 139G of the Competition and Consumer Act.
"regulator" :
(a) for the purposes of the application of this Schedule as a law of the
Commonwealth--means the Commission; or
(b) for the purposes of the application of this Schedule as a law of a
State or a Territory--has the meaning given by the application law of the
State or Territory.
"rejection period" : see section 262(2).
"related" , in relation to a body corporate: see section 6.
"related
contract or instrument" : see section 83(2).
"rely on" , in relation to
a term of a consumer contract or small business contract, includes the
following:
(a) attempt to enforce the term;
(b) attempt to exercise a right conferred, or purportedly conferred, by
the term;
(c) assert the existence of a right conferred, or purportedly conferred,
by the term.
"responsible Minister" means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who administers the application law of the
State; or
(c) the Minister of a Territory who administers the application law of
the Territory.
"safety defect" , in relation to goods: see section 9.
"safety standard" : see sections 104(1) and 105(1).
"sale by auction" ,
in relation to the supply of goods by a person, means a sale by auction that
is conducted by an agent of the person (whether the agent acts in person or by
electronic means).
"send includes deliver, and sent and sender" have
corresponding meanings.
"serious injury or illness" means an acute physical
injury or illness that requires medical or surgical treatment by, or under the
supervision of, a medical practitioner or a nurse (whether or not in a
hospital, clinic or similar place), but does not include:
(a) an ailment, disorder, defect or morbid condition (whether of sudden
onset or gradual development); or
(b) the recurrence, or aggravation, of such an ailment, disorder, defect
or morbid condition.
"services" includes:
(a) any rights (including rights in relation to, and interests in, real
or personal property), benefits, privileges or facilities that are, or are to
be, provided, granted or conferred in trade or commerce; and
(b) without limiting paragraph (a), the rights, benefits,
privileges or facilities that are, or are to be, provided, granted or
conferred under:
(i) a contract for or in relation to the performance of work (including
work of a professional nature), whether with or without the supply of goods;
or
(ii) a contract for or in relation to the provision of, or the use or
enjoyment of facilities for, amusement, entertainment, recreation or
instruction; or
(iii) a contract for or in relation to the conferring of rights,
benefits or privileges for which remuneration is payable in the form of a
royalty, tribute, levy or similar exaction; or
(iv) a contract of insurance; or
(v) a contract between a banker and a customer of the banker entered
into in the course of the carrying on by the banker of the business of
banking; or
(vi) any contract for or in relation to the lending of money;
but does
not include rights or benefits being the supply of goods or the performance of
work under a contract of service.
"share" includes stock.
"ship" has the
meaning given by section 3(1) of the Admiralty Act 1988 .
"single
price" : see section 48(7).
"small business contract" : see
subsection 23(4).
"standard form contract" has a meaning affected by
section 27.
"substantially transformed" , in relation to goods: see
section 255(2).
"substantiation notice" means a notice under
section 219.
"substantiation notice compliance period" : see
section 221(2).
"supply" , when used as a verb, includes:
(a) in relation to goods--supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase; and
(b) in relation to services--provide, grant or confer;
and, when used
as a noun, has a corresponding meaning, and supplied and supplier have
corresponding meanings.
Note: Section 5
deals with when a donation is a supply.
"supply of limited title" : see
section 51(2).
"telecommunications service" : see section 65(2).
"termination charge" : see section 97(2).
"termination period" , in
relation to an unsolicited consumer agreement, means the period within which
the consumer under the agreement is, under section 82 or under the
agreement, entitled to terminate the agreement.
"tied continuing credit
contract" means a continuing credit contract under which a credit provider
provides credit in respect of the payment by a consumer for goods or services
supplied by a supplier in relation to whom the credit provider is a linked
credit provider.
"tied loan contract" means a loan contract entered into
between a credit provider and a consumer where:
(a) the credit provider knows, or ought reasonably to know, that the
consumer enters into the loan contract wholly or partly for the purposes of
payment for goods or services supplied by a supplier; and
(b) at the time the loan contract is entered into the credit provider is
a linked credit provider of the supplier.
"trade or commerce" means:
(a) trade or commerce within Australia; or
(b) trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on
for profit).
"transparent" :
(a) in relation to a document--means:
(i) expressed in reasonably plain language; and
(ii) legible; and
(iii) presented clearly; and
(b) in relation to a term of a consumer contract or small business
contract--see section 24(3).
"unfair" , in relation to a term of a
consumer contract or small business contract: see section 24(1).
"unsolicited consumer agreement" : see section 69.
"unsolicited goods"
means goods sent to a person without any request made by the person or on his
or her behalf.
"unsolicited services" means:
(a) services supplied to a person; or
(b) services purported to have been supplied to a person which have not
been supplied;
without any request made by the person or on his or her
behalf.
"upfront price" : see section 26(2).
"warranty against
defects" : see section 102(3).
(2) In this Schedule:
(a) a reference to engaging in conduct is a reference to doing or
refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or
arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an
understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(b) a reference to conduct, when that expression is used as a noun
otherwise than as mentioned in paragraph (a), is a reference to the doing
of or the refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or
arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an
understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a
particular condition, includes a reference to the person making it known that
the person will accept applications, offers or proposals for the person to do
that act or to do that act on that condition, as the case may be.
3
Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer
if, and only if:
(a) the amount paid or payable for the goods, as worked out under
subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this
paragraph--that greater amount; or
(b) the goods were of a kind ordinarily acquired for personal, domestic
or household use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use
principally in the transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired
the goods, or held himself or herself out as acquiring the goods:
(a) for the following purpose:
(i) for goods other than gift cards--for the purpose of re-supply;
(ii) for gift cards--for the purpose of re-supply in trade or commerce;
or
(b) for the purpose of using them up or transforming them, in trade or
commerce:
(i) in the course of a process of production or manufacture; or
(ii) in the course of repairing or treating other goods or fixtures on
land.
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a consumer
if, and only if:
(a) the amount paid or payable for the services, as worked out under
subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of
subsection (1)(a)--that greater amount; or
(b) the services were of a kind ordinarily acquired for personal,
domestic or household use or consumption.
Amounts paid or payable for
purchases
(4) For the purposes of subsection (1) or (3), the amount paid or
payable for goods or services purchased by a person is taken to be the price
paid or payable by the person for the goods or services, unless
subsection (5) applies.
(5) For the purposes of subsection (1) or (3), if a person
purchased goods or services by a mixed supply and a specified price was not
allocated to the goods or services in the contract under which they were
purchased, the amount paid or payable for goods or services is taken to be:
(a) if, at the time of the acquisition, the person could have purchased
from the supplier the goods or services other than by a mixed supply--the
price at which they could have been purchased from the supplier; or
(b) if:
(i) paragraph (a) does not apply; but
(ii) at the time of the acquisition, goods or services of the kind
acquired could have been purchased from another supplier other than by a mixed
supply;
the lowest price at which the person could, at that time, reasonably have
purchased goods or services of that kind from another supplier; or
(c) if, at the time of the acquisition, goods or services of the kind
acquired could not have been purchased from any supplier except by a mixed
supply--the value of the goods or services at that time.
Amounts paid or
payable for other acquisitions
(6) For the purposes of subsection (1) or (3), the amount paid or
payable for goods or services acquired by a person other than by way of
purchase is taken to be the price at which, at the time of the acquisition,
the person could have purchased the goods or services from the supplier,
unless subsection (7) or (8) applies.
(7) For the purposes of subsection (1) or (3), if:
(a) goods or services acquired by a person other than by way of purchase
could not, at the time of the acquisition, have been purchased from the
supplier, or could have been purchased only by a mixed supply; but
(b) at that time, goods or services of the kind acquired could have been
purchased from another supplier other than by a mixed supply;
the amount
paid or payable for the goods or services is taken to be the lowest price at
which the person could, at that time, reasonably have purchased goods or
services of that kind from another supplier.
(8) For the purposes of subsection (1) or (3), if goods or services
acquired by a person other than by way of purchase could not, at the time of
the acquisition, have been purchased from any supplier other than by a mixed
supply, the amount paid or payable for the goods or services is taken to be
the value of the goods or services at that time.
Amounts paid or payable for
obtaining credit
(9) If:
(a) a person obtains credit in connection with the acquisition of goods
or services by him or her; and
(b) the amount paid or payable by him or her for the goods or services
is increased because he or she so obtains credit;
obtaining the credit is
taken for the purposes of subsection (3) to be the acquisition of a
service, and the amount paid or payable by him or her for the service of being
provided with the credit is taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it
is alleged in any proceeding under this Schedule, or in any other proceeding
in respect of a matter arising under this Schedule, that a person was a
consumer in relation to particular goods or services, it is presumed, unless
the contrary is established, that the person was a consumer in relation to
those goods or services.
Mixed supplies
(11) A
purchase or other acquisition of goods or services is made by a mixed supply
if the goods or services are purchased or acquired together with other
property or services, or together with both other property and other services.
Supplies to consumers
(12) In
this Schedule, a reference to a supply of goods or services to a consumer is a
reference to a supply of goods or services to a person who is taken to have
acquired them as a consumer.
4 Misleading representations with
respect to future matters
(1) If:
(a) a person makes a representation with respect to any future matter
(including the doing of, or the refusing to do, any act); and
(b) the person does not have reasonable grounds for making the
representation;
the representation is taken, for the purposes of this
Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation made with respect to a future matter
by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have
had reasonable grounds for making the representation, unless evidence is
adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary
is adduced, the person who made the representation is taken to have had
reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the
person who made the representation had reasonable grounds for making the
representation.
(4) Subsection (1) does not limit by implication the meaning of a
reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and,
in particular, does not imply that a representation that a person makes with
respect to any future matter is not misleading merely because the person has
reasonable grounds for making the representation.
5 When donations
are treated as supplies or acquisitions
(1) For the purposes of this Schedule, other than Parts 3-3, 3-4,
4-3 and 4-4:
(a) a donation of goods or services is not treated as a supply of the
goods or services unless the donation is for promotional purposes; and
(b) receipt of a donation of goods or services is not treated as an
acquisition of the goods or services unless the donation is for promotional
purposes.
(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:
(a) any donation of goods or services is treated as a supply of the
goods or services; and
(b) receipt of any donation of goods or services is treated as an
acquisition of the goods or services.
6 Related bodies corporate
(1) A body corporate is taken to be related to another body corporate if
the bodies corporate would, under section 4A(5) of the
Competition and Consumer Act, be deemed to be related to each other.
(2) In proceedings under this Schedule, it is presumed, unless the
contrary is established, that bodies corporate are not, or were not at a
particular time, related to each other.
7 Meaning of manufacturer
(1) A manufacturer includes the following:
(a) a person who grows, extracts, produces, processes or assembles
goods;
(b) a person who holds himself or herself out to the public as the
manufacturer of goods;
(c) a person who causes or permits the name of the person, a name by
which the person carries on business or a brand or mark of the person to be
applied to goods supplied by the person;
(d) a person (the first person ) who causes or permits another person,
in connection with:
(i) the supply or possible supply of goods by that other person; or
(ii) the promotion by that other person by any means of the supply or
use of goods;
to hold out the first person to the public as the manufacturer of the goods;
(e) a person who imports goods into Australia if:
(i) the person is not the manufacturer of the goods; and
(ii) at the time of the importation, the manufacturer of the goods does
not have a place of business in Australia.
(2) For the purposes of subsection (1)(c):
(a) a name, brand or mark is taken to be applied to goods if:
(i) it is woven in, impressed on, worked into or annexed or affixed to
the goods; or
(ii) it is applied to a covering, label, reel or thing in or with which
the goods are supplied; and
(b) if the name of a person, a name by which a person carries on
business or a brand or mark of a person is applied to goods, it is presumed,
unless the contrary is established, that the person caused or permitted the
name, brand or mark to be applied to the goods.
(3) If goods are imported into Australia on behalf of a person, the
person is taken, for the purposes of paragraph (1)(e), to have imported
the goods into Australia.
8 Goods affixed to land or premises
For the purposes of this Schedule, goods are taken to be supplied to a
consumer even if they are affixed to land or premises at the time of the
supply.
9 Meaning of safety defect in relation to goods
(1) For the purposes of this Schedule, goods have a safety defect if
their safety is not such as persons generally are entitled to expect.
(2) In determining the extent of the safety of goods, regard is to be
given to all relevant circumstances, including:
(a) the manner in which, and the purposes for which, they have been
marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or
refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to
them; and
(f) the time when they were supplied by their manufacturer.
(3) An inference that goods have a safety defect is not to be made only
because of the fact that, after they were supplied by their manufacturer,
safer goods of the same kind were supplied.
(4) An inference that goods have a safety defect is not to be made only
because:
(a) there was compliance with a Commonwealth mandatory standard for
them; and
(b) that standard was not the safest possible standard having regard to
the latest state of scientific or technical knowledge when they were supplied
by their manufacturer.
10 Asserting a right to payment
(1) A person is taken to assert a right to payment from another person
if the person:
(a) makes a demand for the payment or asserts a present or prospective
right to the payment; or
(b) threatens to bring any legal proceedings with a view to obtaining
the payment; or
(c) places or causes to be placed the name of the other person on a list
of defaulters or debtors, or threatens to do so, with a view to obtaining the
payment; or
(d) invokes or causes to be invoked any other collection procedure, or
threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document that:
(i) states the amount of the payment; or
(ii) sets out the price of unsolicited goods or unsolicited services; or
(iii) sets out the charge for placing, in a publication, an entry or
advertisement;
and does not contain a statement, to the effect that the document is not an
assertion of a right to a payment, that complies with any requirements
prescribed by the regulations.
(2) For the purposes of this section, an invoice or other document
purporting to have been sent by or on behalf of a person is taken to have been
sent by that person unless the contrary is established.
11
References to acquisition, supply and re-supply
In this Schedule:
(a) a reference to the acquisition of goods includes a reference to the
acquisition of property in, or rights in relation to, goods pursuant to a
supply of the goods; and
(b) a reference to the supply or acquisition of goods or services
includes a reference to agreeing to supply or acquire goods or services; and
(c) a reference to the supply or acquisition of goods includes a
reference to the supply or acquisition of goods together with other property
or services, or both; and
(d) a reference to the supply or acquisition of services includes a
reference to the supply or acquisition of services together with property or
other services, or both; and
(e) a reference to the re-supply of goods acquired from a person
includes a reference to:
(i) a supply of the goods to another person in an altered form or
condition; and
(ii) a supply to another person of goods in which the first-mentioned
goods have been incorporated; and
(f) a reference to the re-supply of services (the original services )
acquired from a person (the original supplier ) includes a reference to:
(i) a supply of the original services to another person in an altered
form or condition; and
(ii) a supply to another person of other services that are substantially
similar to the original services, and could not have been supplied if the
original services had not been acquired by the person who acquired them from
the original supplier.
12 Application of Schedule in relation to
leases and licences of land and buildings
In this Schedule:
(a) a reference to a contract includes a reference to a lease of, or a
licence in respect of, land or a building or part of a building (despite the
express references in this Schedule to such leases or licences); and
(b) a reference to making or entering into a contract, in relation to
such a lease or licence, is a reference to granting or taking the lease or
licence; and
(c) a reference to a party to a contract, in relation to such a lease or
licence, includes a reference to any person bound by, or entitled to the
benefit of, any provision contained in the lease or licence.
13 Loss
or damage to include injury
In this Schedule:
(a) a reference to loss or damage, other than a reference to the amount
of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference
to damages in respect of an injury.
14 Meaning of continuing credit
contract
(1) If:
(a) a person (the creditor ), in the course of a business carried on by
the creditor, agrees with a consumer to provide credit to the consumer in
relation to:
(i) payment for goods or services; or
(ii) cash supplied by the creditor to the consumer from time to time; or
(iii) payment by the creditor to another person in relation to goods or
services, or cash, supplied by that other person to the consumer from time to
time; and
(b) the creditor:
(i) has an agreement, arrangement or understanding (the credit agreement
) with the consumer in relation to the provision of the credit; or
(ii) is engaged in a course of dealing (the credit dealing ) with the
consumer in relation to the provision of the credit; and
(c) the amounts owing to the creditor from time to time under the credit
agreement or credit dealing are, or are to be, calculated on the basis that:
(i) all amounts owing; and
(ii) all payments made;
by the consumer under, or in respect of, the credit agreement or credit
dealing are entered in one or more accounts kept for the purpose of that
agreement or dealing;
the credit agreement or credit dealing is taken, for
the purposes of this Schedule, to be a continuing credit contract .
(2) If subsection (1)(a)(iii) applies, the creditor is taken, for
the purposes of this section, to have provided credit to the consumer in
relation to any goods or services, or cash, supplied by another person to the
consumer to the extent of any payments made, or to be made, by the creditor to
that other person.
15 Contraventions of this Schedule
Conduct is not taken, for the purposes of this Schedule, to contravene a
provision of this Schedule merely because of the application of:
(a) section 23(1); or
(b) a provision of Division 1 of Part 3-2 (other than
section 66(2)); or
(c) a provision of Part 3-5.
16 Severability
(1) If the making of a contract after the commencement of this section
contravenes this Schedule because the contract includes a particular
provision, nothing in this Schedule affects the validity or enforceability of
the contract otherwise than in relation to that provision, so far as that
provision is severable.
(2) This section has effect subject to any order made under
Division 4 of Part 5-2.
17 References to provisions in
this Schedule
In this Schedule, a reference to a provision is a reference to a provision of
this Schedule, unless the contrary intention appears.
Chapter 2 --
General protections
Part 2-1 -- Misleading or deceptive conduct
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is
misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by
implication subsection (1).
Note: For rules relating
to representations as to the country of origin of goods, see Part 5-3.
19 Application of this Part to information providers
(1) This Part does not apply to a publication of matter by an
information provider if:
(a) in any case--the information provider made the publication in the
course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or the holder of a
licence granted under the Broadcasting Services Act 1992 --the publication was
by way of a radio or television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an
advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion by any
means of the supply or use of, goods or services (the publicised goods or
services ), if:
(a) the publicised goods or services were goods or services of a kind
supplied by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who supplies goods or services of
the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that supplies goods or services of the same kind as the publicised
goods or services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or the
promotion by any means of the sale or grant of, interests in land (the
publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or
granted by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who sells or grants interests of
the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that sells or grants interests of the same kind as the publicised
interests in land.
(5) An information provider is a person who carries on a business of
providing information.
(6) Without limiting subsection (5), each of the following is an
information provider :
(a) the holder of a licence granted under the Broadcasting Services Act
1992 ;
(b) a person who is the provider of a broadcasting service under a class
licence under that Act;
(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
Part 2-2 --
Unconscionable conduct
20 Unconscionable conduct
within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is
unconscionable, within the meaning of the unwritten law from time to time.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to conduct that is prohibited by
section 21.
21 Unconscionable conduct in connection with goods
or services
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person; or
(b) the acquisition or possible acquisition of goods or services from a
person;
engage in conduct that is, in all the circumstances, unconscionable.
(2) This section does not apply to conduct that is engaged in only
because the person engaging in the conduct:
(a) institutes legal proceedings in relation to the supply or possible
supply, or in relation to the acquisition or possible acquisition; or
(b) refers to arbitration a dispute or claim in relation to the supply
or possible supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of determining whether a person has contravened
subsection (1):
(a) the court must not have regard to any circumstances that were not
reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances
existing, before the commencement of this section.
(4) It is the intention of the Parliament that:
(a) this section is not limited by the unwritten law relating to
unconscionable conduct; and
(b) this section is capable of applying to a system of conduct or
pattern of behaviour, whether or not a particular individual is identified as
having been disadvantaged by the conduct or behaviour; and
(c) in considering whether conduct to which a contract relates is
unconscionable, a court's consideration of the contract may include
consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried
out;
and is not limited to consideration of the circumstances relating to formation
of the contract.
22 Matters the court may have regard to for the
purposes of section 21
(1) Without limiting the matters to which the court may have regard for
the purpose of determining whether a person (the supplier ) has contravened
section 21 in connection with the supply or possible supply of goods or
services to a person (the customer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier
and the customer; and
(b) whether, as a result of conduct engaged in by the supplier, the
customer was required to comply with conditions that were not reasonably
necessary for the protection of the legitimate interests of the supplier; and
(c) whether the customer was able to understand any documents relating
to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any
unfair tactics were used against, the customer or a person acting on behalf of
the customer by the supplier or a person acting on behalf of the supplier in
relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the
customer could have acquired identical or equivalent goods or services from a
person other than the supplier; and
(f) the extent to which the supplier's conduct towards the customer was
consistent with the supplier's conduct in similar transactions between the
supplier and other like customers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the customer acted
on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to
the customer:
(i) any intended conduct of the supplier that might affect the interests
of the customer; and
(ii) any risks to the customer arising from the supplier's intended
conduct (being risks that the supplier should have foreseen would not be
apparent to the customer); and
(j) if there is a contract between the supplier and the customer for the
supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate the terms
and conditions of the contract with the customer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the customer in complying with the
terms and conditions of the contract; and
(iv) any conduct that the supplier or the customer engaged in, in
connection with their commercial relationship, after they entered into the
contract; and
(k) without limiting paragraph (j), whether the supplier has a
contractual right to vary unilaterally a term or condition of a contract
between the supplier and the customer for the supply of the goods or services;
and
(l) the extent to which the supplier and the customer acted in good
faith.
(2) Without limiting the matters to which the court may have regard for
the purpose of determining whether a person (the acquirer ) has contravened
section 21 in connection with the acquisition or possible acquisition of
goods or services from a person (the supplier ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer
and the supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the
supplier was required to comply with conditions that were not reasonably
necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the supplier was able to understand any documents relating
to the acquisition or possible acquisition of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any
unfair tactics were used against, the supplier or a person acting on behalf of
the supplier by the acquirer or a person acting on behalf of the acquirer in
relation to the acquisition or possible acquisition of the goods or services;
and
(e) the amount for which, and the circumstances in which, the supplier
could have supplied identical or equivalent goods or services to a person
other than the acquirer; and
(f) the extent to which the acquirer's conduct towards the supplier was
consistent with the acquirer's conduct in similar transactions between the
acquirer and other like suppliers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the supplier acted
on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to
the supplier:
(i) any intended conduct of the acquirer that might affect the interests
of the supplier; and
(ii) any risks to the supplier arising from the acquirer's intended
conduct (being risks that the acquirer should have foreseen would not be
apparent to the supplier); and
(j) if there is a contract between the acquirer and the supplier for the
acquisition of the goods or services:
(i) the extent to which the acquirer was willing to negotiate the terms
and conditions of the contract with the supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the supplier in complying with the
terms and conditions of the contract; and
(iv) any conduct that the acquirer or the supplier engaged in, in
connection with their commercial relationship, after they entered into the
contract; and
(k) without limiting paragraph (j), whether the acquirer has a
contractual right to vary unilaterally a term or condition of a contract
between the acquirer and the supplier for the acquisition of the goods or
services; and
(l) the extent to which the acquirer and the supplier acted in good
faith.
22A Presumptions relating to whether representations are
misleading
Section 4 applies for the purposes of sections 21 and 22 in the same
way as it applies for the purposes of Division 1 of Part 3-1.
Part 2-3 -- Unfair contract terms
23 Unfair
terms of consumer contracts and small business contracts
(1) A term of a consumer contract or small business contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of
operating without the unfair term.
(3) A consumer contract is a contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in land;
to an individual whose
acquisition of the goods, services or interest is wholly or predominantly for
personal, domestic or household use or consumption.
(4) A contract is a small business contract if:
(a) the contract is for a supply of goods or services, or a sale or
grant of an interest in land; and
(b) at the time the contract is entered into, at least one party to the
contract is a business that employs fewer than 20 persons; and
(c) either of the following applies:
(i) the upfront price payable under the contract does not exceed
$300,000;
(ii) the contract has a duration of more than 12 months and the upfront
price payable under the contract does not exceed $1,000,000.
(5) In counting the persons employed by a business for the purposes of
paragraph (4)(b), a casual employee is not to be counted unless he or she
is employed by the business on a regular and systematic basis.
24
Meaning of unfair
(1) A term of a consumer contract or small business contract is unfair
if:
(a) it would cause a significant imbalance in the parties' rights and
obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate
interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party
if it were to be applied or relied on.
(2) In determining whether a term of a contract is unfair under
subsection (1), a court may take into account such matters as it thinks
relevant, but must take into account the following:
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a contract is
presumed not to be reasonably necessary in order to protect the legitimate
interests of the party who would be advantaged by the term, unless that party
proves otherwise.
25 Examples of unfair terms
Without limiting section 24, the following are examples of the kinds of
terms of a consumer contract or small business contract that may be unfair:
(a) a term that permits, or has the effect of permitting, one party (but
not another party) to avoid or limit performance of the contract;
(b) a term that permits, or has the effect of permitting, one party (but
not another party) to terminate the contract;
(c) a term that penalises, or has the effect of penalising, one party
(but not another party) for a breach or termination of the contract;
(d) a term that permits, or has the effect of permitting, one party (but
not another party) to vary the terms of the contract;
(e) a term that permits, or has the effect of permitting, one party (but
not another party) to renew or not renew the contract;
(f) a term that permits, or has the effect of permitting, one party to
vary the upfront price payable under the contract without the right of another
party to terminate the contract;
(g) a term that permits, or has the effect of permitting, one party
unilaterally to vary the characteristics of the goods or services to be
supplied, or the interest in land to be sold or granted, under the contract;
(h) a term that permits, or has the effect of permitting, one party
unilaterally to determine whether the contract has been breached or to
interpret its meaning;
(i) a term that limits, or has the effect of limiting, one party's
vicarious liability for its agents;
(j) a term that permits, or has the effect of permitting, one party to
assign the contract to the detriment of another party without that other
party's consent;
(k) a term that limits, or has the effect of limiting, one party's right
to sue another party;
(l) a term that limits, or has the effect of limiting, the evidence one
party can adduce in proceedings relating to the contract;
(m) a term that imposes, or has the effect of imposing, the evidential
burden on one party in proceedings relating to the contract;
(n) a term of a kind, or a term that has an effect of a kind, prescribed
by the regulations.
26 Terms that define main subject matter of
consumer contracts or small business contracts etc. are unaffected
(1) Section 23 does not apply to a term of a consumer contract or
small business contract to the extent, but only to the extent, that the term:
(a) defines the main subject matter of the contract; or
(b) sets the upfront price payable under the contract; or
(c) is a term required, or expressly permitted, by a
law of the Commonwealth, a State or a Territory.
(2) The upfront price payable under a contract is the consideration
that:
(a) is provided, or is to be provided, for the supply, sale or grant
under the contract; and
(b) is disclosed at or before the time the contract is entered into;
but does not include any other consideration that is contingent on the
occurrence or non-occurrence of a particular event.
27 Standard form
contracts
(1) If a party to a proceeding alleges that a contract is a standard
form contract, it is presumed to be a standard form contract unless another
party to the proceeding proves otherwise.
(2) In determining whether a contract is a standard form contract, a
court may take into account such matters as it thinks relevant, but must take
into account the following:
(a) whether one of the parties has all or most of the bargaining power
relating to the transaction;
(b) whether the contract was prepared by one party before any discussion
relating to the transaction occurred between the parties;
(c) whether another party was, in effect, required either to accept or
reject the terms of the contract (other than the terms referred to in
section 26(1)) in the form in which they were presented;
(d) whether another party was given an effective opportunity to
negotiate the terms of the contract that were not the terms referred to in
section 26(1);
(e) whether the terms of the contract (other than the terms referred to
in section 26(1)) take into account the specific characteristics of
another party or the particular transaction;
(f) any other matter prescribed by the regulations.
28
Contracts to which this Part does not apply
(1) This Part does not apply to:
(a) a contract of marine salvage or towage; or
(b) a charterparty of a ship; or
(c) a contract for the carriage of goods by ship.
(2) Without limiting subsection (1)(c), the reference in that
subsection to a contract for the carriage of goods by ship includes a
reference to any contract covered by a sea carriage document within the
meaning of the amended Hague Rules referred to in section 7(1) of the
Carriage of Goods by Sea Act 1991 .
(3) This Part does not apply to a contract that is the constitution
(within the meaning of section 9 of the Corporations Act 2001 ) of a
company, managed investment scheme or other kind of body.
(4) This Part does not apply to a small business contract to which a
prescribed law of the Commonwealth, a State or a Territory applies.
Chapter 3 -- Specific protections
Part 3-1 -- Unfair practices
Division 1 -- False or misleading representations etc.
29 False
or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the
supply or possible supply of goods or services or in connection with the
promotion by any means of the supply or use of goods or services:
(a) make a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style or model or
have had a particular history or particular previous use; or
(b) make a false or misleading representation that services are of a
particular standard, quality, value or grade; or
(c) make a false or misleading representation that goods are new; or
(d) make a false or misleading representation that a particular person
has agreed to acquire goods or services; or
(e) make a false or misleading representation that purports to be a
testimonial by any person relating to goods or services; or
(f) make a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) make a false or misleading representation that goods or services
have sponsorship, approval, performance characteristics, accessories, uses or
benefits; or
(h) make a false or misleading representation that the person making the
representation has a sponsorship, approval or affiliation; or
(i) make a false or misleading representation with respect to the price
of goods or services; or
(j) make a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare parts for
goods; or
(k) make a false or misleading representation concerning the place of
origin of goods; or
(l) make a false or misleading representation concerning the need for
any goods or services; or
(m) make a false or misleading representation concerning the existence,
exclusion or effect of any condition, warranty, guarantee, right or remedy
(including a guarantee under Division 1 of Part 3-2); or
(n) make a false or misleading representation concerning a requirement
to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition, warranty,
guarantee, right or remedy (including a guarantee under Division 1 of
Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State or a
Territory (other than an unwritten law).
Note
1: A pecuniary penalty may be imposed for
a contravention of this subsection.
Note
2: For rules relating to representations
as to the country of origin of goods, see Part 5-3.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation of a kind referred to in
subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary
is adduced, the representation is not misleading; or
(b) have the effect of placing on any person an onus of proving that the
representation is not misleading.
30 False or misleading
representations about sale etc. of land
(1) A person must not, in trade or commerce, in connection with the sale
or grant, or the possible sale or grant, of an interest in land or in
connection with the promotion by any means of the sale or grant of an interest
in land:
(a) make a false or misleading representation that the person making the
representation has a sponsorship, approval or affiliation; or
(b) make a false or misleading representation concerning the nature of
the interest in the land; or
(c) make a false or misleading representation concerning the price
payable for the land; or
(d) make a false or misleading representation concerning the location of
the land; or
(e) make a false or misleading representation concerning the
characteristics of the land; or
(f) make a false or misleading representation concerning the use to
which the land is capable of being put or may lawfully be put; or
(g) make a false or misleading representation concerning the existence
or availability of facilities associated with the land.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition,
or the possible supply or acquisition, of interests in land.
31
Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may be, offered
by the person or by another person, engage in conduct that is liable to
mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
32
Offering rebates, gifts, prizes etc.
(1) A person must not, in trade or commerce, offer any rebate, gift,
prize or other free item with the intention of not providing it, or of not
providing it as offered, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or
services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest in
land.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) If a person offers any rebate, gift, prize or other free item in
connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or
services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest in
land;
the person must, within the time specified in the offer or (if no such
time is specified) within a reasonable time after making the offer, provide
the rebate, gift, prize or other free item in accordance with the offer.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Subsection (2) does not apply if:
(a) the person's failure to provide the rebate, gift, prize or other
free item in accordance with the offer was due to the act or omission of
another person, or to some other cause beyond the person's control; and
(b) the person took reasonable precautions and exercised due diligence
to avoid the failure.
(4) Subsection (2) does not apply to an offer that the person makes
to another person if:
(a) the person offers to the other person a different rebate, gift,
prize or other free item as a replacement; and
(b) the other person agrees to receive the different rebate, gift, prize
or other free item.
(5) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition,
or the possible supply or acquisition, of interests in land.
33
Misleading conduct as to the nature etc. of goods
A person must not, in trade or commerce, engage in conduct that is liable to
mislead the public as to the nature, the manufacturing process, the
characteristics, the suitability for their purpose or the quantity of any
goods.
Note: A
pecuniary penalty may be imposed for a contravention of this section.
34
Misleading conduct as to the nature etc. of services
A person must not, in trade or commerce, engage in conduct that is liable to
mislead the public as to the nature, the characteristics, the suitability for
their purpose or the quantity of any services.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
35 Bait
advertising
(1) A person must not, in trade or commerce, advertise goods or services
for supply at a specified price if:
(a) there are reasonable grounds for believing that the person will not
be able to offer for supply those goods or services at that price for a period
that is, and in quantities that are, reasonable, having regard to:
(i) the nature of the market in which the person carries on business;
and
(ii) the nature of the advertisement; and
(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person who, in trade or commerce, advertises goods or services for
supply at a specified price must offer such goods or services for supply at
that price for a period that is, and in quantities that are, reasonable having
regard to:
(a) the nature of the market in which the person carries on business;
and
(b) the nature of the advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
36
Wrongly accepting payment
(1) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance, the
person intends not to supply the goods or services.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance, the
person intends to supply goods or services materially different from the goods
or services in respect of which the payment or other consideration is
accepted.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(3) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance:
(a) there are reasonable grounds for believing that the person will not
be able to supply the goods or services:
(i) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was accepted; or
(ii) if no period is specified at or before that time--within a
reasonable time; and
(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(4) A person who, in trade or commerce, accepts payment or other
consideration for goods or services must supply all the goods or services:
(a) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was accepted; or
(b) if no period is specified at or before that time--within a
reasonable time.
Note:
A pecuniary penalty may be imposed for a contravention of this subsection.
(5) Subsection (4) does not apply if:
(a) the person's failure to supply all the goods or services within the
period, or within a reasonable time, was due to the act or omission of another
person, or to some other cause beyond the person's control; and
(b) the person took reasonable precautions and exercised due diligence
to avoid the failure.
(6) Subsection (4) does not apply if:
(a) the person offers to supply different goods or services as a
replacement to the person (the customer ) to whom the original supply was to
be made; and
(b) the customer agrees to receive the different goods or services.
(7) Subsections (1), (2), (3) and (4) apply whether or not the
payment or other consideration that the person accepted represents the whole
or a part of the payment or other consideration for the supply of the goods or
services.
37 Misleading representations about certain business
activities
(1) A person must not, in trade or commerce, make a representation that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of any
business activity that the person has represented as one that can be, or can
be to a considerable extent, carried on at or from a person's place of
residence.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, make a representation that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of any
business activity:
(i) that the person invites (whether by advertisement or otherwise)
other persons to engage or participate in, or to offer or apply to engage or
participate in; and
(ii) that requires the performance of work by other persons, or the
investment of money by other persons and the performance by them of work
associated with the investment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
38
Application of provisions of this Division to information providers
(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication of
matter by an information provider if:
(a) in any case--the information provider made the publication in the
course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or the holder of a
licence granted under the Broadcasting Services Act 1992 --the publication was
by way of a radio or television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an
advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion by any
means of the supply or use of, goods or services (the publicised goods or
services ), if:
(a) the publicised goods or services were goods or services of a kind
supplied by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who supplies goods or services of
the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that supplies goods or services of the same kind as the publicised
goods or services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or the
promotion by any means of the sale or grant of, interests in land (the
publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or
granted by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who sells or grants interests of
the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that sells or grants interests of the same kind as the publicised
interests in land.
Division 2 -- Unsolicited supplies
39
Unsolicited cards etc.
(1) A person must not send a credit card or a debit card, or an article
that may be used as a credit card and a debit card, to another person except:
(a) pursuant to a written request by the person who will be under a
liability to the person who issued the card or article in respect of the use
of the card or article; or
(b) in renewal or replacement of, or in substitution for:
(i) a card or article of the same kind previously sent to the other
person pursuant to a written request by the person who was under a liability,
to the person who issued the card previously so sent, in respect of the use of
that card; or
(ii) a card or article of the same kind previously sent to the other
person and used for a purpose for which it was intended to be used.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1) does not apply unless the card or article is
sent by or on behalf of the person who issued it.
(3) A person must not take any action that enables another person who
has a credit card to use the card as a debit card, except in accordance with
the other person's written request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) A person must not take any action that enables another person who
has a debit card to use the card as a credit card, except in accordance with
the other person's written request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(5) A credit card is an article that is one or more of the following:
(a) an article of a kind commonly known as a credit card;
(b) a similar article intended for use in obtaining cash, goods or
services on credit;
(c) an article of a kind that persons carrying on business commonly
issue to their customers, or prospective customers, for use in obtaining goods
or services from those persons on credit;
and includes an article that may
be used as an article referred to in paragraph (a), (b) or (c).
(6) A debit card is:
(a) an article intended for use by a person in obtaining access to an
account that is held by the person for the purpose of withdrawing or
depositing cash or obtaining goods or services; or
(b) an article that may be used as an article referred to in
paragraph (a).
40 Assertion of right to payment for unsolicited
goods or services
(1) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited goods unless the person has reasonable
cause to believe that there is a right to the payment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited services unless the person has reasonable
cause to believe that there is a right to the payment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not, in trade or commerce, send to another person an
invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
unsolicited goods or unsolicited services; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations;
unless the person has reasonable
cause to believe that there is a right to the payment or charge.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding against a person in relation to a contravention of
this section, the person bears the onus of proving that the person had
reasonable cause to believe that there was a right to the payment or charge.
41 Liability etc. of recipient for unsolicited goods
(1) If a person, in trade or commerce, supplies unsolicited goods to
another person, the other person:
(a) is not liable to make any payment for the goods; and
(b) is not liable for loss of or damage to the goods, other than loss or
damage resulting from the other person doing a wilful and unlawful act in
relation to the goods during the recovery period.
(2) If a person sends, in trade or commerce, unsolicited goods to
another person:
(a) neither the sender nor any person claiming under the sender is
entitled, after the end of the recovery period, to take action for the
recovery of the goods from the other person; and
(b) at the end of the recovery period, the goods become, by force of
this section, the property of the other person freed and discharged from all
liens and charges of any description.
(3) However, subsection (2) does not apply to or in relation to
unsolicited goods sent to a person if:
(a) the person has, at any time during the recovery period, unreasonably
refused to permit the sender or the owner of the goods to take possession of
the goods; or
(b) the sender or the owner of the goods has within the recovery period
taken possession of the goods; or
(c) the goods were received by the person in circumstances in which the
person knew, or might reasonably be expected to have known, that the goods
were not intended for him or her.
(4) The recovery period is whichever of the following periods ends
first:
(a) the period of 3 months starting on the day after the day on which
the person received the goods;
(b) if the person who receives the unsolicited goods gives notice with
respect to the goods to the supplier or sender in accordance with
subsection (5)--the period of one month starting on the day after the day
on which the notice is given.
(5) A notice under subsection (4)(b):
(a) must be in writing; and
(b) must state the name and address of the person who received the
goods; and
(c) must state the address at which possession may be taken of the
goods, if it is not the address of the person; and
(d) must contain a statement to the effect that the goods are
unsolicited goods.
42 Liability of recipient for unsolicited
services
If a person, in trade or commerce, supplies, or purports to supply but does
not supply, unsolicited services to another person, the other person:
(a) is not liable to make any payment for the services; and
(b) is not liable for loss or damage as a result of the supply or
purported supply of the services.
43 Assertion of right to payment
for unauthorised entries or advertisements
(1) A person must not assert a right to payment from another person of a
charge for placing, in a publication, an entry or advertisement relating to:
(a) the other person; or
(b) the other person's profession, business, trade or occupation;
unless the person knows, or has reasonable cause to believe, that the other
person authorised the placing of the entry or advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not send to another person an invoice or other
document that:
(a) states the amount of a payment, or sets out the charge, for placing,
in a publication, an entry or advertisement relating to:
(i) the other person; or
(ii) the other person's profession, business, trade or occupation; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations;
unless the person knows, or has
reasonable cause to believe, that the other person authorised the placing of
the entry or advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Subsections (1) and (2) do not apply to an entry or
advertisement that is placed in a publication published by a person who is:
(a) the publisher of a publication that has an audited circulation of
10,000 copies or more per week, as confirmed by the most recent audit of the
publication by a body specified in the regulations; or
(b) a body corporate related to such a publisher; or
(c) the Commonwealth, a State or a Territory, or an
authority of the Commonwealth, a State or a Territory; or
(d) a person specified in the regulations.
(4) A person:
(a) is not liable to make any payment to another person; and
(b) is entitled to recover by action in a court against another person
any payment made by the person to the other person;
in full or part
satisfaction of a charge for placing, in a publication, an entry or
advertisement, unless the person authorised the placing of the entry or
advertisement.
(5) A person is not taken for the purposes of this section to have
authorised the placing of the entry or advertisement, unless:
(a) a document authorising the placing of the entry or advertisement has
been signed by the person or by another person authorised by him or her; and
(b) a copy of the document has been given to the person before the right
to payment of a charge for the placing of the entry or advertisement is
asserted; and
(c) the document specifies:
(i) the name and address of the person publishing the entry or
advertisement; and
(ii) particulars of the entry or advertisement; and
(iii) the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is to be, calculated.
(6) In a proceeding against a person in relation to a contravention of
this section, the person bears the onus of proving that the person knew or had
reasonable cause to believe that the person against whom a right to payment
was asserted had authorised the placing of the entry or advertisement.
Division 3 -- Pyramid schemes
44 Participation in pyramid
schemes
(1) A person must not participate in a pyramid scheme.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not induce, or attempt to induce, another person to
participate in a pyramid scheme.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) To participate in a pyramid scheme is:
(a) to establish or promote the scheme (whether alone or together with
another person); or
(b) to take part in the scheme in any capacity (whether or not as
an employee or agent of a person who establishes or promotes the scheme, or
who otherwise takes part in the scheme).
45 Meaning of pyramid
scheme
(1) A pyramid scheme is a scheme with both of the following
characteristics:
(a) to take part in the scheme, some or all new participants must
provide, to another participant or participants in the scheme, either of the
following (a participation payment ):
(i) a financial or non-financial benefit to, or for the benefit of, the
other participant or participants;
(ii) a financial or non-financial benefit partly to, or for the benefit
of, the other participant or participants and partly to, or for the benefit
of, other persons;
(b) the participation payments are entirely or substantially induced by
the prospect held out to new participants that they will be entitled, in
relation to the introduction to the scheme of further new participants, to be
provided with either of the following (a recruitment payment ):
(i) a financial or non-financial benefit to, or for the benefit of, new
participants;
(ii) a financial or non-financial benefit partly to, or for the benefit
of, new participants and partly to, or for the benefit of, other persons.
(2) A new participant includes a person who has applied, or been
invited, to participate in the scheme.
(3) A scheme may be a pyramid scheme:
(a) no matter who holds out to new participants the prospect of
entitlement to recruitment payments; and
(b) no matter who is to make recruitment payments to new participants;
and
(c) no matter who is to make introductions to the scheme of further new
participants.
(4) A scheme may be a pyramid scheme even if it has any or all of the
following characteristics:
(a) the participation payments may (or must) be made after the new
participants begin to take part in the scheme;
(b) making a participation payment is not the only requirement for
taking part in the scheme;
(c) the holding out of the prospect of entitlement to recruitment
payments does not give any new participant a legally enforceable right;
(d) arrangements for the scheme are not recorded in writing (whether
entirely or partly);
(e) the scheme involves the marketing of goods or services (or both).
46 Marketing schemes as pyramid schemes
(1) To decide, for the purpose of this Schedule, whether a scheme that
involves the marketing of goods or services (or both) is a pyramid scheme, a
court must have regard to the following matters in working out whether
participation payments under the scheme are entirely or substantially induced
by the prospect held out to new participants of entitlement to recruitment
payments:
(a) whether the participation payments bear a reasonable relationship to
the value of the goods or services that participants are entitled to be
supplied with under the scheme (as assessed, if appropriate, by reference to
the price of comparable goods or services available elsewhere);
(b) the emphasis given in the promotion of the scheme to the entitlement
of participants to the supply of goods or services by comparison with the
emphasis given to their entitlement to recruitment payments.
(2) Subsection (1) does not limit the matters to which the court
may have regard in working out whether participation payments are entirely or
substantially induced by the prospect held out to new participants of
entitlement to recruitment payments.
Division 4 -- Pricing
47
Multiple pricing
(1) A person must not, in trade or commerce, supply goods if:
(a) the goods have more than one displayed price; and
(b) the supply takes place for a price that is not the lower, or lowest,
of the displayed prices.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A displayed price for goods is a price for the goods, or any
representation that may reasonably be inferred to be a representation of a
price for the goods:
(a) that is annexed or affixed to, or is written, printed, stamped or
located on, or otherwise applied to, the goods or any covering, label, reel or
thing used in connection with the goods; or
(b) that is used in connection with the goods or anything on which the
goods are mounted for display or exposed for supply; or
(c) that is determined on the basis of anything encoded on or in
relation to the goods; or
(d) that is published in relation to the goods in a catalogue available
to the public if:
(i) a time is specified in the catalogue as the time after which the
goods will not be sold at that price and that time has not passed; or
(ii) in any other case--the catalogue may reasonably be regarded as not
out-of-date; or
(e) that is in any other way represented in a manner from which it may
reasonably be inferred that the price or representation is applicable to the
goods;
and includes such a price or representation that is partly obscured
by another such price or representation that is written, stamped or located
partly over that price or representation.
(3) If:
(a) a price or representation is included in a catalogue; and
(b) the catalogue is expressed to apply only to goods supplied at a
specified location, or in a specified region;
the price or representation is
taken, for the purposes of subsection (2)(d), not to have been made in
relation to supply of the goods at a different location, or in a different
region, as the case may be.
(4) Despite subsection (2), a price or representation is not a
displayed price for goods if:
(a) the price or representation is wholly obscured by another such price
or representation that is written, stamped or located wholly over that price
or representation; or
(b) the price or representation:
(i) is expressed as a price per unit of mass, volume, length or other
unit of measure; and
(ii) is presented as an alternative means of expressing the price for
supply of the goods that is a displayed price for the goods; or
(c) the price or representation is expressed as an amount in a currency
other than Australian currency; or
(d) the price or representation is expressed in a way that is unlikely
to be interpreted as an amount of Australian currency.
(5) Despite subsection (2), a displayed price for goods that is a
displayed price because it has been published in a catalogue or advertisement
ceases to be a displayed price for the goods if:
(a) the displayed price is retracted; and
(b) the retraction is published in a manner that has at least a similar
circulation or audience as the catalogue or advertisement.
48 Single
price to be specified in certain circumstances
(1) A person must not, in trade or commerce, in connection with:
(a) the supply, or possible supply, to another person of goods or
services of a kind ordinarily acquired for personal, domestic or household use
or consumption; or
(b) the promotion by any means of the supply to another person, or of
the use by another person, of goods or services of a kind ordinarily acquired
for personal, domestic or household use or consumption;
make a
representation with respect to an amount that, if paid, would constitute a
part of the consideration for the supply of the goods or services unless the
person also specifies, in a prominent way and as a single figure, the single
price for the goods or services.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person is not required to include, in the single price for goods,
a charge that is payable in relation to sending the goods from the supplier to
the other person.
(3) However, if:
(a) the person does not include in the single price a charge that is
payable in relation to sending the goods from the supplier to the other
person; and
(b) the person knows, at the time of the representation, the minimum
amount of a charge in relation to sending the goods from the supplier to the
other person that must be paid by the other person;
the person must not make
the representation referred to in subsection (1) unless the person also
specifies that minimum amount.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) Subsection (1) does not apply if the representation is made
exclusively to a body corporate.
(4A)
Subsection (1) does not apply if:
(a) the representation is in a class of representations prescribed by
the regulations; and
(b) the conditions (if any) prescribed by the regulations in relation to
representations in that class have been complied with.
Note: If the
representation is in a class prescribed for paragraph (a) of this
subsection and subsection (1) is complied with in relation to the
representation, there is no need to also comply with any conditions prescribed
for paragraph (b) of this subsection.
(5) For the purposes of subsection (1), the person is taken not to
have specified a single price for the goods or services in a prominent way
unless the single price is at least as prominent as the most prominent of the
parts of the consideration for the supply.
(6) Subsection (5) does not apply in relation to services to be
supplied under a contract if:
(a) the contract provides for the supply of the services for the term of
the contract; and
(b) the contract provides for periodic payments for the services to be
made during the term of the contract; and
(c) if the contract also provides for the supply of goods--the goods are
directly related to the supply of the services.
(7) The single price is the minimum quantifiable consideration for the
supply of the goods or services at the time of the representation, including
each of the following amounts (if any) that is quantifiable at that time:
(a) a charge of any description payable to the person making the
representation by another person unless:
(i) the charge is payable at the option of the other person; and
(ii) at or before the time of the representation, the other person has
either deselected the charge or not expressly requested that the charge be
applied;
(b) the amount which reflects any tax, duty, fee, levy or charge imposed
on the person making the representation in relation to the supply;
(c) any amount paid or payable by the person making the representation
in relation to the supply with respect to any tax, duty, fee, levy or charge
if:
(i) the amount is paid or payable under an agreement or arrangement made
under a law of the Commonwealth, a State or a Territory; and
(ii) the tax, duty, fee, levy or charge would have otherwise been
payable by another person in relation to the supply.
Example 1: An airline
advertises a flight for sale. Persons have the option of paying for a carbon
offset. If the carbon offset is preselected on the airline's online booking
system, the single price for the flight must include the carbon offset charge.
This is because the person has not, at or before the time of the
representation, deselected the charge on the online booking site. If the
person deselects the optional carbon offset charge later in the online booking
process, the single price does not need to include the carbon offset charge
after the charge is deselected because of the exception provided by
paragraphs (a)(i) and (ii).
Example 2: The GST may be an example of an
amount covered by paragraph (b).
Example 3: The passenger movement
charge imposed under the Passenger Movement Charge Act 1978 may be an example
of an amount covered by paragraph (c). Under an arrangement under
section 10 of the Passenger Movement Charge Collection Act 1978 ,
airlines may pay an amount equal to the charge that would otherwise be payable
by passengers departing Australia.
Division 5 -- Other unfair
practices
49 Referral selling
A person must not, in trade or commerce, induce a consumer to acquire goods or
services by representing that the consumer will, after the contract for the
acquisition of the goods or services is made, receive a rebate, commission or
other benefit in return for:
(a) giving the person the names of prospective customers; or
(b) otherwise assisting the person to supply goods or services to other
consumers;
if receipt of the rebate, commission or other benefit is
contingent on an event occurring after that contract is made.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
50
Harassment and coercion
(1) A person must not use physical force, or undue harassment or
coercion, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the payment for goods or services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the payment for an interest in land.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsections (1)(c) and (d) do not affect the application of any
other provision of Part 2-1 or this Part in relation to the supply
or acquisition, or the possible supply or acquisition, of interests in land.
Part 3-2 -- Consumer transactions
Division 1 -- Consumer
guarantees
Subdivision A--Guarantees relating to the supply of goods
51
Guarantee as to title
(1) If a person (the supplier ) supplies goods to a consumer, there is a
guarantee that the supplier will have a right to dispose of the property in
the goods when that property is to pass to the consumer.
(2) Subsection (1) does not apply to a supply (a supply of limited
title ) if an intention that the supplier of the goods should transfer only
such title as the supplier, or another person, may have:
(a) appears from the contract for the supply; or
(b) is to be inferred from the circumstances of that contract.
(3) This section does not apply if the supply is a supply by way of hire
or lease.
52 Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee
that the consumer has the right to undisturbed possession of the goods.
(2) Subsection (1) does not apply to the extent that the consumer's
undisturbed possession of the goods may be lawfully disturbed by a person who
is entitled to the benefit of any security, charge or encumbrance disclosed to
the consumer before the consumer agreed to the supply.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that
the following persons will not disturb the consumer's possession of the goods:
(c) the supplier;
(d) if the parties to the contract for the supply intend that the
supplier should transfer only such title as another person may have--that
other person;
(e) anyone claiming through or under the supplier or that other person
(otherwise than under a security, charge or encumbrance disclosed to the
consumer before the consumer agreed to the supply).
(4) This section applies to a supply by way of hire or lease only for
the period of the hire or lease.
53 Guarantee as to undisclosed
securities etc.
(1) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee
that:
(c) the goods are free from any security, charge or encumbrance:
(i) that was not disclosed to the consumer, in writing, before the
consumer agreed to the supply; or
(ii) that was not created by or with the express consent of the
consumer; and
(d) the goods will remain free from such a security, charge or
encumbrance until the time when the property in the goods passes to the
consumer.
(2) A supplier does not fail to comply with the guarantee only because
of the existence of a floating charge over the supplier's assets unless and
until the charge becomes fixed and enforceable by the person to whom the
charge is given.
Note:
Section 339 of the Personal Property Securities Act 2009 affects the
meaning of the references in this subsection to a floating charge and a fixed
charge.
(3) If:
(a) a person (the supplier ) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that
all securities, charges or encumbrances known to the supplier, and not known
to the consumer, were disclosed to the consumer before the consumer agreed to
the supply.
(4) This section does not apply if the supply is a supply by way of hire
or lease.
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly
supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state
and condition of the goods (including any hidden defects of the goods), would
regard as acceptable having regard to the matters in subsection (3).
(3) The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the
goods; and
(d) any representation made about the goods by the supplier or
manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the
goods.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality
were specifically drawn to the consumer's attention before the consumer agreed
to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were supplied
to a consumer;
the reason or reasons why they are not of acceptable quality
are taken, for the purposes of subsection (4), to have been specifically
drawn to a consumer's attention if those reasons were disclosed on a written
notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of
unacceptable quality, or fails to take reasonable steps to prevent them from
becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer
agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods
were not of acceptable quality.
55 Guarantee as to fitness for any
disclosed purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, goods to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the goods are reasonably fit for any disclosed purpose, and for
any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that
purpose is a purpose for which the goods are commonly supplied) for which the
goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation
to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either
directly or through the supplier or the person referred to in
paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the
consumer did not rely on, or that it was unreasonable for the consumer to rely
on, the skill or judgment of the supplier, the person referred to in
subsection (2)(a)(ii) or the manufacturer, as the case may be.
56
Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or commerce, goods by description to a
consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by
description only because, having been exposed for sale or hire, they are
selected by the consumer.
(3) If goods are supplied by description as well as by reference to a
sample or demonstration model, the guarantees in this section and in
section 57 both apply.
57 Guarantees relating to the supply of
goods by sample or demonstration model
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer by
reference to a sample or demonstration model; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that:
(c) the goods correspond with the sample or demonstration model in
quality, state or condition; and
(d) if the goods are supplied by reference to a sample--the consumer
will have a reasonable opportunity to compare the goods with the sample; and
(e) the goods are free from any defect that:
(i) would not be apparent on reasonable examination of the sample or
demonstration model; and
(ii) would cause the goods not to be of acceptable quality.
(2) If goods are supplied by reference to a sample or demonstration
model as well as by description, the guarantees in section 56 and in this
section both apply.
58 Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the manufacturer of the goods will take reasonable action to
ensure that facilities for the repair of the goods, and parts for the goods,
are reasonably available for a reasonable period after the goods are supplied.
(2) This section does not apply if the manufacturer took reasonable
action to ensure that the consumer would be given written notice, at or before
the time when the consumer agrees to the supply of the goods, that:
(a) facilities for the repair of the goods would not be available or
would not be available after a specified period; or
(b) parts for the goods would not be available or would not be available
after a specified period.
59 Guarantee as to express warranties
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the manufacturer of the goods will comply with any express
warranty given or made by the manufacturer in relation to the goods.
(2) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a
guarantee that the supplier will comply with any express warranty given or
made by the supplier in relation to the goods.
Subdivision B--Guarantees
relating to the supply of services
60 Guarantee as to due care and
skill
If a person supplies, in trade or commerce, services to a consumer, there is a
guarantee that the services will be rendered with due care and skill.
61
Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to
a consumer; and
(b) the consumer, expressly or by implication, makes known to the
supplier any particular purpose for which the services are being acquired by
the consumer;
there is a guarantee that the services, and any product
resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier ) supplies, in trade or commerce, services to
a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation
to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a
guarantee that the services, and any product resulting from the services, will
be of such a nature, and quality, state or condition, that they might
reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the
consumer did not rely on, or that it was unreasonable for the consumer to rely
on, the skill or judgment of the supplier.
(4) This section does not apply to a supply of services of a
professional nature by a qualified architect or engineer.
62
Guarantee as to reasonable time for supply
If:
(a) a person (the supplier ) supplies, in trade or commerce, services to
a consumer; and
(b) the time within which the services are to be supplied:
(i) is not fixed by the contract for the supply of the services; or
(ii) is not to be determined in a manner agreed to by the consumer and
supplier;
there is a guarantee that the services will be supplied within a
reasonable time.
63 Services to which this Subdivision does not
apply
(1) This Subdivision does not apply to services that are, or are to be,
supplied under:
(a) a contract for or in relation to the transportation or storage of
goods for the purposes of a business, trade, profession or occupation carried
on or engaged in by the person for whom the goods are transported or stored;
or
(b) a contract of insurance.
(2) To avoid doubt, subsection (1)(a) does not apply if the
consignee of the goods is not carrying on or engaged in a business, trade,
profession or occupation in relation to the goods.
Note: This subsection
was inserted as a response to the decision of the High Court of Australia in
Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17.
Subdivision C--Guarantees not to be excluded etc. by contract
64
Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term of the contract)
is void to the extent that the term purports to exclude, restrict or modify,
or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Division; or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of a person for a failure to comply with a guarantee
that applies under this Division to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section,
to exclude, restrict or modify the application of a provision of this Division
unless the term does so expressly or is inconsistent with the provision.
64A
Limitation of liability for failures to comply with guarantees
(1) A term of a contract for the supply by a person of goods other than
goods of a kind ordinarily acquired for personal, domestic or household use or
consumption is not void under section 64 merely because the term limits
the person's liability for failure to comply with a guarantee (other than a
guarantee under section 51, 52 or 53) to one or more of the following:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring
equivalent goods;
(d) the payment of the cost of having the goods repaired.
(2) A term of a contract for the supply by a person of services other
than services of a kind ordinarily acquired for personal, domestic or
household use or consumption is not void under section 64 merely because
the term limits the person's liability for failure to comply with a guarantee
to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
(3) This section does not apply in relation to a term of a contract if
the person to whom the goods or services were supplied establishes that it is
not fair or reasonable for the person who supplied the goods or services to
rely on that term of the contract.
(4) In determining for the purposes of subsection (3) whether or
not reliance on a term of a contract is fair or reasonable, a court is to have
regard to all the circumstances of the case, and in particular to the
following matters:
(a) the strength of the bargaining positions of the person who supplied
the goods or services and the person to whom the goods or services were
supplied (the buyer ) relative to each other, taking into account, among other
things, the availability of equivalent goods or services and suitable
alternative sources of supply;
(b) whether the buyer received an inducement to agree to the term or, in
agreeing to the term, had an opportunity of acquiring the goods or services or
equivalent goods or services from any source of supply under a contract that
did not include that term;
(c) whether the buyer knew or ought reasonably to have known of the
existence and extent of the term (having regard, among other things, to any
custom of the trade and any previous course of dealing between the parties);
(d) in the case of the supply of goods, whether the goods were
manufactured, processed or adapted to the special order of the buyer.
Subdivision D--Miscellaneous
65 Application of this Division to
supplies of gas, electricity and telecommunications
(1) This Division does not apply to a supply if the supply:
(a) is a supply of a kind specified in the regulations; and
(b) is a supply of gas, electricity or a telecommunications service.
(2) A telecommunications service is a service for carrying
communications by means of guided or unguided electromagnetic energy or both.
66 Display notices
(1) The Commonwealth Minister may determine, in writing, that persons
(the suppliers ) who make supplies, or supplies of a specified kind, to which
guarantees apply under this Division are required to display, in accordance
with the determination, a notice that meets the requirements of the
determination.
(2) A supplier who makes a supply to a consumer to which a guarantee
applies under this Division, and to which such a determination relates, must
ensure that a notice that meets those requirements is, in accordance with the
determination:
(a) if the consumer takes delivery of the goods or services at the
supplier's premises--displayed at those premises; or
(b) otherwise--drawn to the consumer's attention before the consumer
agrees to the supply of the goods.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Without limiting subsection (1), a determination under that
subsection may do all or any of the following:
(a) require the notice to include specified information about the
application of all or any of the provisions of this Division and
Part 5-4;
(b) specify where the notice must be displayed;
(c) specify how the notice must be drawn to the attention of consumers;
(d) specify requirements as to the form of the notice.
67
Conflict of laws
If:
(a) the proper law of a contract for the supply of goods or services to
a consumer would be the law of any part of Australia but for a term of the
contract that provides otherwise; or
(b) a contract for the supply of goods or services to a consumer
contains a term that purports to substitute, or has the effect of
substituting, the following provisions for all or any of the provisions of
this Division:
(i) the provisions of the law of a country other than Australia;
(ii) the provisions of the law of a State or a Territory;
the
provisions of this Division apply in relation to the supply under the contract
despite that term.
68 Convention on Contracts for the International
Sale of Goods
The provisions of the United Nations Convention on Contracts for the
International Sale of Goods, done at Vienna on 11 April 1980, as amended
and in force for Australia from time to time, prevail over the provisions of
this Division to the extent of any inconsistency.
Note: The text of the
Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS
32). In 2010, the text of a Convention in the Australian Treaty Series was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Division 2 -- Unsolicited consumer agreements
Subdivision A--Introduction
69 Meaning of unsolicited consumer
agreement
(1) An agreement is an unsolicited consumer agreement if:
(a) it is for the supply, in trade or commerce, of goods or services to
a consumer; and
(b) it is made as a result of negotiations between a dealer and the
consumer:
(i) in each other's presence at a place other than the business or trade
premises of the supplier of the goods or services; or
(ii) by telephone;
whether or not they are the only negotiations that precede the making of the
agreement; and
(c) the consumer did not invite the dealer to come to that place, or to
make a telephone call, for the purposes of entering into negotiations relating
to the supply of those goods or services (whether or not the consumer made
such an invitation in relation to a different supply); and
(d) the total price paid or payable by the consumer under the agreement:
(i) is not ascertainable at the time the agreement is made; or
(ii) if it is ascertainable at that time--is more than $100 or such
other amount prescribed by the regulations.
(1AA) To avoid doubt, a place
mentioned in subsection (1)(b)(i) may be a public place, and need not be
a place the dealer cannot enter without the consumer's consent or invitation.
Note: This subsection
was inserted as a response to the decision of the Federal Court of Australia
in Australian Competition and Consumer Commission v A.C.N.
099 814 749 Pty Ltd [2016] FCA 403.
(1A) The consumer
is not taken, for the purposes of subsection (1)(c), to have invited the
dealer to come to that place, or to make a telephone call, merely because the
consumer has:
(a) given his or her name or contact details other than for the
predominant purpose of entering into negotiations relating to the supply of
the goods or services referred to in subsection (1)(c); or
(b) contacted the dealer in connection with an unsuccessful attempt by
the dealer to contact the consumer.
(2) An invitation merely to quote a price for a supply is not taken, for
the purposes of subsection (1)(c), to be an invitation to enter into
negotiations for a supply.
(3) An agreement is also an unsolicited consumer agreement if it is an
agreement of a kind that the regulations provide are unsolicited consumer
agreements.
(4) However, despite subsections (1) and (3), an agreement is not
an unsolicited consumer agreement if it is an agreement of a kind that the
regulations provide are not unsolicited consumer agreements.
70
Presumption that agreements are unsolicited consumer agreements
(1) In a proceeding relating to a contravention or possible
contravention of this Division (other than a criminal proceeding), an
agreement is presumed to be an unsolicited consumer agreement if:
(a) a party to the proceeding alleges that the agreement is an
unsolicited consumer agreement; and
(b) no other party to the proceeding proves that the agreement is not an
unsolicited consumer agreement.
(2) In a proceeding relating to a contravention or possible
contravention of this Division (other than a criminal proceeding), it is
presumed that a proposed agreement would be an unsolicited consumer agreement
if it were made if:
(a) a party to the proceeding alleges that the proposed agreement would
be an unsolicited consumer agreement if it were made; and
(b) no other party to the proceeding proves that the proposed agreement
would not be an unsolicited consumer agreement if it were made.
71
Meaning of dealer
A dealer is a person who, in trade or commerce:
(a) enters into negotiations with a consumer with a view to making an
agreement for the supply of goods or services to the consumer; or
(b) calls on, or telephones, a consumer for the purpose of entering into
such negotiations;
whether or not that person is, or is to be, the supplier
of the goods or services.
72 Meaning of negotiation
A negotiation , in relation to an agreement or a proposed agreement, includes
any discussion or dealing directed towards the making of the agreement or
proposed agreement (whether or not the terms of the agreement or proposed
agreement are open to any discussion or dealing).
Subdivision B--Negotiating
unsolicited consumer agreements
73 Permitted hours for negotiating
an unsolicited consumer agreement
(1) A dealer must not call on a person for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related purpose:
(a) at any time on a Sunday or a public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or after 5 pm if the other day is a
Saturday).
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) Subsection (1) does not apply if the dealer calls on the person
in accordance with consent that:
(a) was given by the person to the dealer or a person acting on the
dealer's behalf; and
(b) was not given in the presence of the dealer or a person acting on
the dealer's behalf.
Note: The
Do Not Call Register Act 2006 may apply to a telephone call made for the
purpose of negotiating an unsolicited consumer agreement.
74
Disclosing purpose and identity
A dealer who calls on a person for the purpose of negotiating an unsolicited
consumer agreement, or for an incidental or related purpose, must, as soon as
practicable and in any event before starting to negotiate:
(a) clearly advise the person that the dealer's purpose is to seek the
person's agreement to a supply of the goods or services concerned; and
(b) clearly advise the person that the dealer is obliged to leave the
premises immediately on request; and
(c) provide to the person such information relating to the dealer's
identity as is prescribed by the regulations.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
75
Ceasing to negotiate on request
(1) A dealer who calls on a person at any premises for the purpose of
negotiating an unsolicited consumer agreement, or for an incidental or related
purpose, must leave the premises immediately on the request of:
(a) the occupier of the premises, or any person acting with the actual
or apparent authority of the occupier; or
(b) the person (the prospective consumer ) with whom the negotiations
are being conducted.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If the prospective consumer makes such a request, the dealer must
not contact the prospective consumer for the purpose of negotiating an
unsolicited consumer agreement (or for an incidental or related purpose) for
at least 30 days after the prospective consumer makes the request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate:
(a) subsection (2) applies to that supplier, and any person acting
on behalf of that supplier, in the same way that it applies to the dealer; but
(b) subsection (2) does not apply to the dealer contacting the
prospective customer in relation to a supply by another supplier.
76
Informing person of termination period etc.
A dealer must not make an unsolicited consumer agreement with a person unless:
(a) before the agreement is made, the person is given information as to
the following:
(i) the person's right to terminate the agreement during the termination
period;
(ii) the way in which the person may exercise that right;
(iii) such other matters as are prescribed by the regulations; and
(b) if the agreement is made in the presence of both the dealer and the
person--the person is given the information in writing; and
(c) if the agreement is made by telephone--the person is given the
information by telephone, and is subsequently given the information in
writing; and
(d) the form in which, and the way in which, the person is given the
information complies with any other requirements prescribed by the
regulations.
Note: A
pecuniary penalty may be imposed for a contravention of this section.
77
Liability of suppliers for contraventions by dealers
If:
(a) a dealer contravenes a provision of this Subdivision in relation to
an unsolicited consumer agreement; and
(b) the dealer is not, or is not to be, the supplier of the goods or
services to which the agreement relates;
the supplier of the goods or
services is also taken to have contravened that provision in relation to the
agreement.
Subdivision C--Requirements for unsolicited consumer agreements
etc.
78 Requirement to give document to the consumer
(1) If an unsolicited consumer agreement was not negotiated by
telephone, the dealer who negotiated the agreement must give a copy of the
agreement to the consumer under the agreement immediately after the consumer
signs the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If an unsolicited consumer agreement was negotiated by telephone,
the dealer who negotiated the agreement must, within 5 business days after the
agreement was made or such longer period agreed by the parties, give to the
consumer under the agreement:
(a) personally; or
(b) by post; or
(c) with the consumer's consent--by electronic communication;
a
document (the agreement document ) evidencing the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) An unsolicited consumer agreement was negotiated by telephone if the
negotiations that resulted in the making of the agreement took place by
telephone (whether or not other negotiations preceded the making of the
agreement).
79 Requirements for all unsolicited consumer agreements
etc.
The supplier under an unsolicited consumer agreement must ensure that the
agreement, or (if the agreement was negotiated by telephone) the agreement
document, complies with the following requirements:
(a) it must set out in full all the terms of the agreement, including:
(i) the total consideration to be paid or provided by the consumer under
the agreement or, if the total consideration is not ascertainable at the time
the agreement is made, the way in which it is to be calculated; and
(ii) any postal or delivery charges to be paid by the consumer;
(b) its front page must include a notice that:
(i) conspicuously and prominently informs the consumer of the consumer's
right to terminate the agreement; and
(ii) conspicuously and prominently sets out any other information
prescribed by the regulations; and
(iii) complies with any other requirements prescribed by the
regulations;
(c) it must be accompanied by a notice that:
(i) may be used by the consumer to terminate the agreement; and
(ii) complies with any requirements prescribed by the regulations;
(d) it must conspicuously and prominently set out in full:
(i) the supplier's name; and
(ii) if the supplier has an ABN--the supplier's ABN; and
(iii) if the supplier does not have an ABN but has an ACN--the
supplier's ACN; and
(iv) the supplier's business address (not being a post box) or, if the
supplier does not have a business address, the supplier's residential address;
and
(v) if the supplier has an email address--the supplier's email address;
and
(vi) if the supplier has a fax number--the supplier's fax number;
(e) it must be printed clearly or typewritten (apart from any amendments
to the printed or typewritten form, which may be handwritten);
(f) it must be transparent.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
80
Additional requirements for unsolicited consumer agreements not negotiated by
telephone
The supplier under an unsolicited consumer agreement that was not negotiated
by telephone must ensure that, in addition to complying with the requirements
of section 79, the agreement complies with the following requirements:
(a) the agreement must be signed by the consumer under the agreement;
(b) if the agreement is signed by a person on the supplier's behalf--the
agreement must state that the person is acting on the supplier's behalf, and
must set out in full:
(i) the person's name; and
(ii) the person's business address (not being a post box) or, if the
person does not have a business address, the person's residential address; and
(iii) if the person has an email address--the person's email address.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
81
Requirements for amendments of unsolicited consumer agreements
The supplier under an unsolicited consumer agreement must ensure that any
amendments to the agreement are signed by both parties to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
Subdivision
D--Terminating unsolicited consumer agreements
82 Terminating an
unsolicited consumer agreement during the termination period
(1) The consumer under an unsolicited consumer agreement may, during the
period provided under subsection (3), terminate the agreement by
indicating, in an oral or written notice to the supplier under the agreement,
an intention to terminate the agreement.
(2) A right of termination under this section may be exercised:
(a) despite affirmation of the agreement by the consumer; and
(b) even though the agreement has been fully executed.
(3) The period during which the consumer may terminate the agreement is
whichever of the following periods is the longest:
(a) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the tenth business day after the day on which the agreement was made;
(b) if the agreement was negotiated by telephone--the period starting on
the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement;
(c) if one or more of sections 73 (permitted hours for negotiating
an unsolicited consumer agreement), 74 (disclosing purpose and identity) and
75 (ceasing to negotiate on request) were contravened in relation to the
agreement:
(i) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the period of 3 months starting on the day after the day on which the
agreement was made; or
(ii) if the agreement was negotiated by telephone--the period starting
on the day on which the agreement was made and ending at the end of the period
of 3 months starting on the day after the day on which the consumer was given
the agreement document relating to the agreement;
(d) if one or more of section 76 (informing consumer of termination
period), a provision of Subdivision C (requirements for unsolicited consumer
agreements) and section 86 (prohibition on supplies etc.) were
contravened in relation to the agreement:
(i) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the period of 6 months starting on the day after the day on which the
agreement was made; or
(ii) if the agreement was negotiated by telephone--the period starting
on the day on which the agreement was made and ending at the end of the period
of 6 months starting on the day after the day on which the consumer was given
the agreement document relating to the agreement;
(e) such other period as the agreement provides.
(4) If the notice under subsection (1) is written, it may be given:
(a) by delivering it personally to the supplier; or
(b) by delivering it, or sending it by post, in an envelope addressed to
the supplier, to the supplier's address referred to in section 79(d)(iv);
or
(c) if the supplier has an email address--by sending it to the
supplier's email address referred to in section 79(d)(v); or
(d) if the supplier has a fax number--by faxing it to the supplier's fax
number referred to in section 79(d)(vi).
(5) A notice under subsection (1) sent by post to a supplier is
taken to have been given to the supplier at the time of posting.
(6) There are no requirements relating to the form or content of a
notice under subsection (1).
83 Effect of termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82:
(a) the agreement is taken to have been rescinded by mutual consent; and
(b) any related contract or instrument is void.
(2) A related contract or instrument , in relation to an unsolicited
consumer agreement, is:
(a) any contract of guarantee or indemnity that is related to the
agreement; or
(b) any instrument related to the agreement that creates a mortgage or
charge in favour of the supplier under the contract or the dealer in relation
to the contract (or a person nominated by the supplier or dealer); or
(c) any contract or instrument (other than an instrument of a kind
referred to in paragraph (b)) that is collateral or related to the
agreement;
but does not include a tied continuing credit contract (within
the meaning of section 127(2) of Schedule 1 to the
National Consumer Credit Protection Act 2009 ), or a tied loan contract
(within the meaning of section 127(3) of that Schedule).
(3) The termination of an unsolicited consumer agreement has effect for
the purposes of section 82 and this section even if:
(a) the supplier under the agreement has not received the notice of
termination; or
(b) the goods or services supplied under the agreement have been wholly
or partly consumed or used.
84 Obligations of suppliers on
termination
If an unsolicited consumer agreement is terminated in accordance with
section 82, the supplier under the agreement must, immediately upon being
notified of the termination, return or refund to the consumer under the
agreement any consideration (or the value of any consideration) that the
consumer gave under the agreement or a related contract or instrument.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
85
Obligations and rights of consumers on termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82, the consumer under the agreement must, within a
reasonable time:
(a) return to the supplier under the agreement any goods:
(i) that have been received from the supplier under the agreement; and
(ii) that the consumer has not already consumed; or
(b) notify the supplier of the place where the supplier may collect the
goods.
(2) The goods become the property of the consumer, freed and discharged
from all liens and charges of any description, if:
(a) the consumer gives notice to the supplier under
subsection (1)(b); and
(b) the supplier does not collect the goods within 30 days after the
termination of the contract.
(3) If:
(a) the agreement is terminated in accordance with section 82 after
the end of:
(i) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the tenth business day after the day on which the agreement was made; or
(ii) if the agreement was negotiated by telephone--the period starting
on the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement; and
(b) the consumer returns the goods to the supplier, or the supplier
collects the goods, under this section; and
(c) the consumer has failed to take reasonable care of the goods;
the
consumer is liable to pay compensation to the supplier for the damage to, or
depreciation in the value of, the goods.
(4) The compensation is recoverable in a court of competent
jurisdiction.
(5) However, the consumer is not liable for any such damage or
depreciation attributable to normal use of the goods or to circumstances
beyond the consumer's control.
(6) If:
(a) an unsolicited consumer agreement is terminated in accordance with
section 82 after the end of:
(i) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the tenth business day after the day on which the agreement was made; or
(ii) if the agreement was negotiated by telephone--the period starting
on the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement; and
(b) prior to the termination, but after the end of that period, a
service was supplied under the agreement;
the termination does not affect
any liability of the consumer under the agreement to provide consideration for
the service.
86 Prohibition on supplies etc.
(1) The supplier under an unsolicited consumer agreement must not:
(a) supply to the consumer under the agreement the goods or services to
be supplied under the agreement; or
(b) accept any payment, or any other consideration, in connection with
those goods or services; or
(c) require any payment, or any other consideration, in connection with
those goods or services;
during:
(d) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the tenth business day after the day on which the agreement was made; or
(e) if the agreement was negotiated by telephone--the period starting on
the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If the supplier supplies goods to the consumer in contravention of
this section, the consumer has the same rights in relation to the goods as if
the goods were unsolicited goods.
Note: Section 41
deals with unsolicited goods.
(3) If the supplier supplies services to the consumer in contravention
of this section, the consumer has the same rights in relation to the services
as if the services were unsolicited services.
Note: Section 42
deals with unsolicited services.
87 Repayment of payments received
after termination
If an unsolicited consumer agreement is terminated in accordance with
section 82, the supplier under the agreement must immediately refund to
the consumer under the agreement any payment:
(a) that the consumer, or a person acting on the consumer's behalf,
makes to the supplier after the termination; and
(b) that purports to be made under the agreement or a related contract
or instrument.
Note: A
pecuniary penalty may be imposed for a contravention of this section.
88
Prohibition on recovering amounts after termination
(1) If an unsolicited consumer agreement is terminated in accordance
with section 82, a person must not:
(a) bring, or assert an intention to bring, legal proceedings against
the consumer; or
(b) take, or assert an intention to take, any other action against the
consumer;
in relation to an amount alleged to be payable, under the
agreement or a related contract or instrument, by the consumer under the
agreement.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(1A)
Subsection (1) does not apply to:
(a) bringing, or asserting an intention to bring, legal proceedings
against the consumer; or
(b) taking, or asserting an intention to take, any other action against
the consumer;
to enforce a liability under section 85(3), or a
liability of a kind referred to in section 85(6).
(2) If an unsolicited consumer agreement is terminated in accordance
with section 82, a person must not, for the purpose of recovering an
amount alleged to be payable, under the agreement or a related contract or
instrument, by the consumer under the agreement:
(a) place the consumer's name, or cause the consumer's name to be
placed, on a list of defaulters or debtors; or
(b) assert an intention to place the consumer's name, or cause the
consumer's name to be placed, on such a list.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Without limiting Division 2 of Part 5-2, an injunction
granted under that Division may require a person responsible for keeping a
list of defaulters or debtors on which the consumer's name has been wrongly
placed to remove the name from that list.
Subdivision E--Miscellaneous
89
Certain provisions of unsolicited consumer agreements void
(1) A provision (however described) of an unsolicited consumer agreement
is void if it has the effect of, or purports to have the effect of:
(a) excluding, limiting, modifying or restricting a right of the
consumer under the agreement to terminate the agreement under this Division;
or
(b) otherwise excluding, limiting, modifying or restricting the effect
or operation of this Division; or
(c) making a dispute relating to the agreement, or to a supply to which
the agreement relates, justiciable by a court by which the dispute would not
otherwise be justiciable.
(2) The supplier under an unsolicited consumer agreement must ensure
that the agreement does not include, or purport to include, a provision
(however described) that is, or would be, void because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) The supplier under an unsolicited consumer agreement must not
attempt to enforce or rely on a provision (however described) that is void
because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
90
Waiver of rights
(1) The consumer under an unsolicited consumer agreement is not
competent to waive any right conferred by this Division.
(2) The supplier under the unsolicited consumer agreement must not
induce, or attempt to induce, the consumer to waive any right conferred by
this Division.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
91
Application of this Division to persons to whom rights of consumers and
suppliers are assigned etc.
(1) This Division applies in relation to a person to whom the rights of
a consumer (the original consumer ) under a contract for the supply of goods
or services are assigned or transferred, or pass by operation of law, (whether
from the original consumer or from another person) as if the person were the
original consumer.
(2) This Division applies in relation to a person to whom the rights of
a supplier (the original supplier ) under a contract for the supply of goods
or services are assigned or transferred, or pass by operation of law, (whether
from the original supplier or from another person) as if the person were the
original supplier.
92 Application of this Division to supplies to
third parties
This Division applies in relation to a contract for the supply of goods or
services to a consumer (the original consumer ) on the order of another person
as if the other person were also the consumer.
93 Effect of
contravening this Division
(1) The supplier under an unsolicited consumer agreement cannot enforce
the agreement against the consumer under the agreement if a provision of this
Division (other than section 85) has been contravened in relation to the
agreement.
(2) This section does not prevent any action being taken under this
Schedule in relation to the contravention.
94 Regulations may limit
the application of this Division
This Division (other than section 73) does not apply, or provisions of
this Division (other than section 73) that are specified in the
regulations do not apply, to or in relation to:
(a) circumstances of a kind specified in the regulations; or
(b) agreements of a kind specified in the regulations; or
(c) the conduct of businesses of a kind specified in the regulations.
95 Application of this Division to certain conduct covered by the
Corporations Act
This Division does not apply in relation to conduct to which section 736,
992A or 992AA of the Corporations Act 2001 applies.
Note: Section 736
of the Corporations Act 2001 prohibits hawking of securities.
Section 992A of that Act prohibits hawking of certain financial products.
Section 992AA of that Act prohibits hawking of interests in managed
investment schemes (which for the purposes of that Act include interests in
notified foreign passport funds).
Division 3 -- Lay-by agreements
96
Lay-by agreements must be in writing etc.
(1) A supplier of goods who is a party to a lay-by agreement must ensure
that:
(a) the agreement is in writing; and
(b) a copy of the agreement is given to the consumer to whom the goods
are, or are to be, supplied.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A supplier of goods who is a party to a lay-by agreement must ensure
that the agreement is transparent.
(3) A lay-by agreement is an agreement between a supplier of goods and a
consumer for the supply, in trade or commerce, of the goods on terms (whether
express or implied) which provide that:
(a) the goods will not be delivered to the consumer until the total
price of the goods has been paid; and
(b) the price of the goods is to be paid by:
(i) 3 or more instalments; or
(ii) if the agreement specifies that it is a lay-by agreement--2 or more
instalments.
(4) For the purposes of subsection (3)(b), any deposit paid by the
consumer for the goods is taken to be an instalment.
97 Termination
of lay-by agreements by consumers
(1) A consumer who is party to a lay-by agreement may terminate the
agreement at any time before the goods to which the agreement relates are
delivered to the consumer under the agreement.
(2) A supplier of goods who is a party to a lay-by agreement must ensure
that the agreement does not require the consumer to pay a charge (a
termination charge ) for the termination of the agreement unless:
(a) the agreement is terminated by the consumer; and
(b) the supplier has not breached the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A supplier of goods who is a party to a lay-by agreement must ensure
that, if the agreement provides that a termination charge is payable, the
amount of the charge is not more than the supplier's reasonable costs in
relation to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
98
Termination of lay-by agreements by suppliers
A supplier of goods who is a party to a lay-by agreement must not terminate
the agreement unless:
(a) the consumer who is a party to the agreement breached a term of the
agreement; or
(b) the supplier is no longer engaged in trade or commerce; or
(c) the goods to which the agreement relates are no longer available.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
99
Effect of termination
(1) If a lay-by agreement is terminated by a party to the agreement, the
supplier must refund to the consumer all the amounts paid by the consumer
under the agreement other than any termination charge that is payable under
the agreement.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) The supplier is entitled to recover any unpaid termination charge
from the consumer as a debt if the amounts paid by the consumer under the
lay-by agreement are not enough to cover the charge.
(3) If a lay-by agreement is terminated by a party to the agreement, the
supplier is not entitled to damages, or to enforce any other remedy, in
relation to that termination except as provided for by this section.
Division 3A -- Gift cards
Subdivision A--Introduction
99A
Meaning of gift card
A gift card is:
(a) an article (whether in physical or electronic form) that:
(i) is of a kind that is commonly known as a gift card or gift voucher;
and
(ii) is redeemable for goods or services; or
(b) an article of a kind specified in regulations made for the purposes
of this paragraph;
but does not include an article of a kind specified in
the regulations.
Subdivision B--Requirements relating to gift cards
99B
Gift cards to be redeemable for at least 3 years
(1) A person must not, in trade or commerce, supply a gift card to a
consumer if the day that the gift card ceases to be redeemable is earlier than
3 years after the day of that supply.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If:
(a) a gift card is, in trade or commerce, supplied to a consumer; and
(b) the day that the gift card ceases to be redeemable is earlier than 3
years after the day of that supply;
the day that the gift card ceases to be
redeemable is taken to be 3 years after the day of that supply.
(3) Subsection (2) does not affect a person's liability for an
alleged contravention of subsection (1) or section 191A.
99C
When gift card ceases to be redeemable to appear prominently on gift
card
A person must not, in trade or commerce, supply a gift card to a consumer if
one of the following does not appear prominently on the gift card:
(a) the date the gift card ceases to be redeemable;
(b) the month and year the gift card ceases to be redeemable;
(c) the date the gift card is supplied and a statement that identifies
the period during which the gift card is redeemable;
(d) the month and year the gift card is supplied and a statement that
identifies the period during which the gift card is redeemable;
(e) the words "no expiry date" or words to that effect.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
99D
Terms and conditions not to allow post-supply fees
(1) A person must not, in trade or commerce, supply a gift card to a
consumer if the terms or conditions (however described) of the gift card allow
or require the payment of a post-supply fee in relation to the gift card.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A post-supply fee is a fee or charge payable in relation to a gift
card after it is supplied to a consumer, other than a fee or charge of a kind
specified in the regulations.
99E Post-supply fees not to be
demanded or received
A person must not, in trade or commerce, demand or receive payment of a
post-supply fee in relation to a gift card.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
99F
Certain terms and conditions of gift card void
(1) A term or condition (however described) of a gift card is void if it
has the effect of, or purports to have the effect of:
(a) allowing or requiring the payment of a post-supply fee in relation
to the gift card; or
(b) reducing the period that the gift card ceases to be redeemable to a
period that ends earlier than 3 years after the day the gift card is supplied
to a consumer.
(2) The supplier of a gift card must ensure that the terms or conditions
(however described) of the gift card do not include, or purport to include, a
term or condition that is, or would be, void because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) This section does not affect a person's liability for an alleged
contravention of:
(a) section 99B(1); or
(b) section 99C; or
(c) section 99D(1); or
(d) section 99E; or
(e) section 191A; or
(f) section 191B; or
(g) section 191C; or
(h) section 191D.
Subdivision C--Miscellaneous
99G
Regulations may limit application of this Division
The regulations may provide that some or all of the provisions of this
Division do not apply to or in relation to:
(a) gift cards of a kind prescribed by the regulations; or
(b) persons of a kind prescribed by the regulations; or
(c) gift cards supplied in circumstances prescribed by the regulations.
Division 4 -- Miscellaneous
100 Supplier must provide proof of
transaction etc.
(1) If:
(a) a person (the supplier ), in trade or commerce, supplies goods or
services to a consumer; and
(b) the total price (excluding GST) of the goods or services is $75 or
more;
the supplier must give the consumer a proof of transaction as soon as
practicable after the goods or services are so supplied.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If:
(a) a person (the supplier ), in trade or commerce, supplies goods or
services to a consumer; and
(b) the total price (excluding GST) of the goods or services is less
than $75;
the consumer may request a proof of transaction from the supplier
as soon as practicable after the goods or services are so supplied.
(3) If a request is made under subsection (2), the supplier must
give the proof of transaction within 7 days after the request is made.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) A proof of transaction for a supply of goods or services to a
consumer is a document that:
(a) identifies the supplier of the goods or services; and
(b) if the supplier has an ABN--states the supplier's ABN; and
(c) if the supplier does not have an ABN but has an ACN--states the
supplier's ACN; and
(d) states the date of the supply; and
(e) states the goods or services supplied to the consumer; and
(f) states the price of the goods or services.
Note: The following are
examples of a proof of transaction:
(a) a tax invoice
within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 ;
(b) a cash register receipt;
(c) a
credit card or debit card statement;
(d) a handwritten
receipt;
(e) a lay-by agreement;
(f) a
confirmation or receipt number provided for a telephone or internet
transaction.
(5) The supplier must ensure that the proof of transaction given under
subsection (1) or (3) is transparent.
101 Consumer may request
an itemised bill
(1) If a person (the supplier ), in trade or commerce, supplies services
to a consumer, the consumer may request that the supplier give the consumer an
itemised bill that:
(a) specifies how the price of the services was calculated; and
(b) includes, if applicable, the number of hours of labour that related
to the supply of the services and the hourly rate for that labour; and
(c) includes, if applicable, a list of the materials used to supply the
services and the amount charged for those materials.
(2) The request under subsection (1) must be made within 30 days
after:
(a) the services are supplied; or
(b) the consumer receives a bill or account from the supplier for the
supply of the services;
whichever occurs later.
(3) The supplier must give the consumer the itemised bill within 7 days
after the request is made.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) The supplier must not charge the consumer for the itemised bill.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(5) The supplier must ensure that the itemised bill is transparent.
102 Prescribed requirements for warranties against defects
(1) The regulations may prescribe requirements relating to the form and
content of warranties against defects.
(2) A person must not, in connection with the supply, in
trade or commerce, of goods or services to a consumer:
(a) give to the consumer a document that evidences a warranty against
defects that does not comply with the requirements prescribed for the purposes
of subsection (1); or
(b) represent directly to the consumer that the goods or services are
goods or services to which such a warranty against defects relates.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A warranty against defects is a representation communicated to a
consumer in connection with the supply of goods or services, at or about the
time of supply, to the effect that a person will (unconditionally or on
specified conditions):
(a) repair or replace the goods or part of them; or
(b) provide again or rectify the services or part of them; or
(c) wholly or partly recompense the consumer;
if the goods or services
or part of them are defective, and includes any document by which such a
representation is evidenced.
103 Repairers must comply with
prescribed requirements
(1) The regulations may prescribe requirements relating to the form and
content of notices to be given relating to the repair of goods supplied to a
consumer.
(2) A person (the repairer ) must not, in trade or commerce, accept from
another person goods that the other person acquired as a consumer if the
repairer:
(a) accepts the goods for the purpose of repairing them; and
(b) does not give to the other person a notice that complies with the
requirements prescribed for the purposes of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
Part 3-3
-- Safety of consumer goods and product related services
Division 1 --
Safety standards
104 Making safety standards for consumer goods and
product related services
(1) The Commonwealth Minister may, by written notice published on the
internet, make a safety standard for one or both of the following:
(a) consumer goods of a particular kind;
(b) product related services of a particular kind.
(2) A safety standard for consumer goods of a particular kind may
consist of such requirements about the following matters as are reasonably
necessary to prevent or reduce risk of injury to any person:
(a) the performance, composition, contents, methods of manufacture or
processing, design, construction, finish or packaging of consumer goods of
that kind;
(b) the testing of consumer goods of that kind during, or after the
completion of, manufacture or processing;
(c) the form and content of markings, warnings or instructions to
accompany consumer goods of that kind.
(3) A safety standard for product related services of a particular kind
may consist of such requirements about the following matters as are reasonably
necessary to prevent or reduce risk of injury to any person:
(a) the manner in which services of that kind are supplied (including,
but not limited to, the method of supply);
(b) the skills or qualifications of persons who supply such services;
(c) the materials used in supplying such services;
(d) the testing of such services;
(e) the form and content of warnings, instructions or other information
about such services.
105 Declaring safety standards for consumer
goods and product related services
(1) The Commonwealth Minister may, by written notice published on the
internet, declare that the following is a safety standard for consumer goods,
or product related services, of a kind specified in the instrument:
(a) a particular standard, or a particular part of a standard, prepared
or approved by Standards Australia or by an association prescribed by the
regulations;
(b) such a standard, or such a part of a standard, with additions or
variations specified in the notice.
(2) The Commonwealth Minister must not declare under subsection (1)
that a standard, or a part of a standard, referred to in that subsection is a
safety standard for:
(a) consumer goods of a particular kind; or
(b) product related services of a particular kind;
if that standard or
part is inconsistent with a safety standard for those goods or services
that is in force and that was made under section 104(1).
106
Supplying etc. consumer goods that do not comply with safety standards
(1) A person must not, in trade or commerce, supply consumer goods of a
particular kind if:
(a) a safety standard for consumer goods of that kind is in force; and
(b) those goods do not comply with the standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply (other
than for export) consumer goods the supply of which is prohibited by
subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of consumer goods the supply of which is
prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention
of subsection (3), it is a defence if the defendant proves that the
defendant's manufacture, possession or control of the goods was not for the
purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce, export consumer goods the
supply of which is prohibited by subsection (1) unless:
(a) the person applies, in writing, to the Commonwealth Minister for an
approval to export those goods; and
(b) the Commonwealth Minister gives such an approval by written notice
given to the person.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(6) If the Commonwealth Minister gives an approval under
subsection (5), he or she must cause a statement setting out particulars
of the approval to be tabled in each House of the Parliament of the
Commonwealth within 7 sitting days of that House after the approval is given.
(7) If:
(a) a person supplies consumer goods in contravention of this section;
and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of, the goods;
or
(ii) because of a reasonably foreseeable use (including a misuse) of the
goods; or
(iii) because, contrary to the safety standard, he or she was not
provided with particular information in relation to the goods; and
(c) the other person would not have suffered the loss or damage if the
goods had complied with the safety standard;
the other person is taken, for
the purposes of this Schedule, to have suffered the loss or damage because of
that supply.
107 Supplying etc. product related services that do not
comply with safety standards
(1) A person must not, in trade or commerce, supply product related
services of particular kind if:
(a) a safety standard for services of that kind is in force; and
(b) those services do not comply with the standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply product
related services the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a person supplies product related services in contravention of this
section; and
(b) another person suffers loss or damage:
(i) because of defect in, or a dangerous characteristic of, consumer
goods that results from the services being supplied; or
(ii) because of a reasonably foreseeable use (including a misuse) of
consumer goods that results from the services being supplied; or
(iii) because, contrary to the safety standard, he or she was not
provided with particular information in relation to the services; and
(c) the other person would not have suffered the loss or damage if the
services had complied with the safety standard;
the other person is taken,
for the purposes of this Schedule, to have suffered the loss or damage because
of that supply.
108 Requirement to nominate a safety standard
If:
(a) a safety standard for consumer goods of a particular kind is in
force; and
(b) the standard specifies, as alternative methods of complying with the
standard (or part of the standard), 2 or more sets of requirements relating to
goods of that kind; and
(c) the regulator gives to a supplier of goods of that kind a written
request that the supplier nominate which of those sets of requirements the
supplier intends to comply with as the supplier's method of complying with the
standard;
the supplier must, within the period specified in the request,
give to the regulator a written notice specifying which of those sets of
requirements the supplier intends to comply with as the supplier's method of
complying with the standard.
Division 2 -- Bans on consumer goods and
product related services
Subdivision A--Interim bans
109 Interim
bans on consumer goods or product related services that will or may cause
injury to any person etc.
(1) A responsible Minister may, by written notice published on the
internet, impose an interim ban on consumer goods of a particular kind if:
(a) it appears to the responsible Minister that:
(i) consumer goods of that kind will or may cause injury to any person;
or
(ii) a reasonably foreseeable use (including a misuse) of consumer goods
of that kind will or may cause injury to any person; or
(b) another responsible Minister has imposed, under paragraph (a),
an interim ban:
(i) on consumer goods of the same kind; or
(ii) on consumer goods of a kind that includes those goods;
and that ban is still in force.
(2) A responsible Minister may, by written notice published on the
internet, impose an interim ban on product related services of a particular
kind if:
(a) it appears to the responsible Minister that:
(i) as a result of services of that kind being supplied, consumer goods
of a particular kind will or may cause injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of consumer goods
of a particular kind, to which such services relate, will or may cause injury
to any person as a result of such services being supplied; or
(b) another responsible Minister has imposed, under paragraph (a),
an interim ban:
(i) on product related services of the same kind; or
(ii) on product related services that include those services;
and that ban is still in force.
110 Places in which interim bans
apply
(1) An interim ban imposed by the Commonwealth Minister applies in all
States and Territories.
(2) An interim ban imposed by a responsible Minister who is Minister of
a State applies in the State.
(3) An interim ban imposed by a responsible Minister who is a Minister
of a Territory applies in the Territory.
111 Ban period for interim
bans
(1) An interim ban imposed by a responsible Minister is in force during
the period (the ban period ) that:
(a) starts on the day (the start day ) specified in the notice imposing
the ban; and
(b) subject to this Subdivision, ends at the end of 60 days after the
start day.
(2) Before the ban period for the interim ban ends, the
responsible Minister may, by written notice published on the internet, extend
the ban period for the ban by a period of up to 30 days.
(3) If:
(a) the ban period for the interim ban is extended under
subsection (2); and
(b) the extended ban period for the ban has not ended; and
(c) the interim ban was not imposed by the Commonwealth Minister;
the
responsible Minister may, in writing, request the Commonwealth Minister to
extend the extended ban period for the ban.
(4) If a request is made under subsection (3), the
Commonwealth Minister may, by written notice published on the internet, extend
the extended ban period for the interim ban by a further period of up to 30
days.
(5) If:
(a) a request is made under subsection (3); and
(b) the Commonwealth Minister has not made a decision on the request
immediately before the extended ban period for the interim ban is to end;
the Commonwealth Minister is taken to have decided to extend the extended ban
period for the ban by a further period of 30 days.
(6) If:
(a) the ban period for the interim ban is extended under
subsection (2); and
(b) the extended ban period for the ban has not ended; and
(c) the interim ban was imposed by the Commonwealth Minister;
the
Commonwealth Minister may, by written notice published on the internet, extend
the extended ban period for the interim ban by a further period of up to 30
days.
112 Interaction of multiple interim bans
(1) If:
(a) an interim ban (the original ban ) on consumer goods of a particular
kind (the banned goods ) is imposed by a responsible Minister other than the
Commonwealth Minister; and
(b) while the original ban is in force, the Commonwealth Minister
imposes an interim ban (the Commonwealth ban ):
(i) on the banned goods; or
(ii) on consumer goods of a kind that includes the banned goods;
the
original ban, to the extent that it is a ban on the banned goods, ceases to be
in force immediately before the Commonwealth ban comes into force.
(2) If:
(a) an interim ban (the original ban ) on product related services of a
particular kind (the banned services ) is imposed by a responsible Minister
other than the Commonwealth Minister; and
(b) while the original ban is in force, the Commonwealth Minister
imposes an interim ban (the Commonwealth ban ):
(i) on the banned services; or
(ii) on product related services of a kind that includes the banned
services;
the original ban, to the extent that it is a ban on the banned
services, ceases to be in force immediately before the Commonwealth ban comes
into force.
113 Revocation of interim bans
If a responsible Minister imposes an interim ban:
(a) the responsible Minister may, by written notice published on the
internet, revoke the ban at any time; and
(b) the ban ceases to be in force on the day specified by the
responsible Minister in the notice.
Subdivision B--Permanent bans
114
Permanent bans on consumer goods or product related services
(1) The Commonwealth Minister may, by written notice published on the
internet, impose a permanent ban on consumer goods of a particular kind if:
(a) one or more interim bans on consumer goods of that kind (the banned
goods ), or on consumer goods of a kind that include the banned goods, are in
force; or
(b) it appears to the Commonwealth Minister that:
(i) consumer goods of that kind will or may cause injury to any person;
or
(ii) a reasonably foreseeable use (including a misuse) of consumer goods
of that kind will or may cause injury to any person.
(2) The Commonwealth Minister may, by written notice published on the
internet, impose a permanent ban on product related services of a particular
kind if:
(a) one or more interim bans on product related services of that kind
(the banned services ), or on product related services of a kind that include
the banned services, are in force; or
(b) it appears to the Commonwealth Minister that:
(i) as a result of services of that kind being supplied, consumer goods
of a particular kind will or may cause injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of consumer goods
of a particular kind, to which such services relate, will or may cause injury
to any person as a result of such services being supplied.
115
Places in which permanent bans apply
A permanent ban applies in all States and Territories.
116 When
permanent bans come into force
A permanent ban comes into force on the day specified by the
Commonwealth Minister in the instrument imposing the ban.
117
Revocation of permanent bans
If the Commonwealth Minister imposes a permanent ban:
(a) the Commonwealth Minister may, by written notice published on the
internet, revoke the ban at any time; and
(b) the ban ceases to be in force on the day specified by the
Commonwealth Minister in the notice.
Subdivision C--Compliance with interim
bans and permanent bans
118 Supplying etc. consumer goods covered by
a ban
(1) A person must not, in trade or commerce, supply consumer goods of a
particular kind if:
(a) an interim ban on consumer goods of that kind is in force in the
place where the supply occurs; or
(b) a permanent ban on consumer goods of that kind is in force.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply (other
than for export) consumer goods the supply of which is prohibited by
subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of consumer goods the supply of which is
prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention
of subsection (3), it is a defence if the defendant proves that the
defendant's manufacture, possession or control of the goods was not for the
purpose of supplying the goods (other than for export).
(5) A person must not, in trade or commerce, export consumer goods the
supply of which is prohibited by subsection (1) unless:
(a) the person applies, in writing, to the Commonwealth Minister for an
approval to export those goods; and
(b) the Commonwealth Minister gives such an approval by written notice
given to the person.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(6) If the Commonwealth Minister gives an approval under
subsection (5), he or she must cause a statement setting out particulars
of the approval to be tabled in each House of the Parliament of the
Commonwealth within 7 sitting days of that House after the approval is given.
(7) If:
(a) a person supplies consumer goods in contravention of
subsection (1); and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of, the goods;
or
(ii) because of a reasonably foreseeable use (including a misuse) of the
goods;
the other person is taken, for the purposes of this Schedule, to have
suffered the loss or damage because of that supply.
119 Supplying
etc. product related services covered by a ban
(1) A person must not, in trade or commerce, supply product related
services of a particular kind if:
(a) an interim ban on services of that kind is in force in the place
where the supply occurs; or
(b) a permanent ban on services of that kind is in force.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply product
related services the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a person supplies product related services in contravention of
subsection (1); and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of, consumer
goods that results from the services being supplied; or
(ii) because of a reasonably foreseeable use (including a misuse) of
consumer goods that results from the services being supplied;
the other
person is taken, for the purposes of this Schedule, to have suffered the loss
or damage because of that supply.
Subdivision D--Temporary exemption from
mutual recognition principles
120 Temporary exemption under the
Trans-Tasman Mutual Recognition Act 1997
(1) If:
(a) an interim ban on consumer goods of a particular kind is in force;
or
(b) a permanent ban on consumer goods of a particular kind is in force;
the goods are taken, for the purposes of section 46 of the
Trans-Tasman Mutual Recognition Act 1997 , to be goods of a kind that are
declared, in the manner provided by section 46(2) of that Act, to be
exempt from the operation of that Act.
(2) This section does not affect the application of section 46(4)
of that Act in relation to such an exemption.
121 Temporary
exemption under the Mutual Recognition Act 1992
(1) If:
(a) an interim ban on consumer goods of a particular kind is in force;
and
(b) the interim ban was not imposed by the Commonwealth Minister;
the
goods are taken, for the purposes of section 15 of the
Mutual Recognition Act 1992 , to be goods of a kind that are declared, in the
manner provided by section 15(1) of that Act, to be goods to which that
section applies.
(2) This section does not affect the application of section 15(3)
of that Act in relation to such an exemption.
Division 3 -- Recall of
consumer goods
Subdivision A--Compulsory recall of consumer goods
122
Compulsory recall of consumer goods
(1) A responsible Minister may, by written notice published on the
internet, issue a recall notice for consumer goods of a particular kind if:
(a) a person, in trade or commerce, supplies consumer goods of that
kind; and
(b) any of the following applies:
(i) it appears to the responsible Minister that such goods will or may
cause injury to any person;
(ii) it appears to the responsible Minister that a reasonably
foreseeable use (including a misuse) of such goods will or may cause injury to
any person;
(iii) a safety standard for such goods is in force and the goods do not
comply with the standard;
(iv) an interim ban, or a permanent ban, on such goods is in force; and
(c) it appears to the responsible Minister that one or more suppliers of
such goods have not taken satisfactory action to prevent those goods causing
injury to any person.
(2) It is not necessary for the purposes of subsection (1)(c) for
the responsible Minister to know the identities of any of the suppliers of the
consumer goods of that kind.
(3) A recall notice for consumer goods may be issued under
subsection (1) even if the consumer goods have become fixtures since the
time they were supplied.
123 Contents of a recall notice
(1) A recall notice for the consumer goods may require one or more
suppliers of the goods, or (if no such supplier is known to the
responsible Minister who issued the notice) the regulator, to take one or more
of the following actions:
(a) recall the goods;
(b) disclose to the public, or to a class of persons specified in the
notice, one or more of the following:
(i) the nature of a defect in, or a dangerous characteristic of, the
goods as identified in the notice;
(ii) the circumstances as identified in the notice in which a reasonably
foreseeable use or misuse of the goods is dangerous;
(iii) procedures as specified in the notice for disposing of the goods;
(c) if the identities of any of those suppliers are known to the
responsible Minister--inform the public, or a class of persons specified in
the notice, that the supplier undertakes to do whichever of the following the
supplier thinks is appropriate:
(i) unless the notice identifies a dangerous characteristic of the
goods--repair the goods;
(ii) replace the goods;
(iii) refund to a person to whom the goods were supplied (whether by the
supplier or by another person) the price of the goods.
(2) The recall notice may specify:
(a) the manner in which the action required to be taken by the notice
must be taken; and
(b) the period within which the action must be taken.
(3) If the recall notice requires the regulator to take action to recall
the consumer goods, the responsible Minister may specify in the notice that
the regulator must retain, destroy or otherwise dispose of the goods.
(4) If the recall notice requires a supplier of the consumer goods to
take action of a kind referred to in subsection (1)(c), the
responsible Minister may specify in the notice that, if:
(a) the supplier undertakes to refund the price of the goods; and
(b) a period of more than 12 months has elapsed since a person (whether
or not the person to whom the refund is to be made) acquired the goods from
the supplier;
the amount of a refund may be reduced by the supplier by an
amount calculated in a manner specified in the notice that is attributable to
the use which a person has had of the goods.
124 Obligations of a
supplier in relation to a recall notice
(1) This section applies if a recall notice for consumer goods requires
a supplier to take action of a kind referred to in section 123(1)(c).
(2) If the supplier undertakes to repair the consumer goods, the
supplier must cause the goods to be repaired so that:
(a) any defect in the goods identified in the recall notice is remedied;
and
(b) if a safety standard for the goods is in force--the goods comply
with that standard.
(3) If the supplier undertakes to replace the consumer goods, the
supplier must replace the goods with similar consumer goods which:
(a) if a defect in, or a dangerous characteristic of, the goods to be
replaced was identified in the recall notice--do not contain that defect or
have that characteristic; and
(b) if a safety standard for the goods to be replaced is in
force--comply with that standard.
(4) If the supplier undertakes:
(a) to repair the consumer goods; or
(b) to replace the consumer goods;
the cost of the repair or
replacement, including any necessary transportation costs, must be paid by the
supplier.
125 Notification by persons who supply consumer goods
outside Australia if there is compulsory recall
(1) If consumer goods of a particular kind are recalled as required by a
recall notice, a person who has supplied or supplies those consumer goods to a
person outside Australia must give the person outside Australia a written
notice that complies with subsection (2).
(2) The notice given under subsection (1) must:
(a) state that the consumer goods are subject to recall; and
(b) if the consumer goods contain a defect or have a dangerous
characteristic--set out the nature of that defect or characteristic; and
(c) if a reasonably foreseeable use or misuse of the consumer goods is
dangerous--set out the circumstances of that use or misuse; and
(d) if the consumer goods do not comply with a safety standard for such
goods that is in force--set out the nature of the non-compliance; and
(e) if an interim ban, or a permanent ban, on the consumer goods is in
force--state that fact.
(3) The notice under subsection (1) must be given as soon as
practicable after the supply of the consumer goods to the person outside
Australia.
(4) A person who is required to give a notice under subsection (1)
must, within 10 days after giving the notice, give a copy of the notice to the
responsible Minister who issued the recall notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
126
Interaction of multiple recall notices
If:
(a) a recall notice (the original recall notice ) for consumer goods of
a particular kind (the recalled goods ) is issued by a responsible Minister
other than the Commonwealth Minister; and
(b) while the original recall notice is in force, the
Commonwealth Minister issues a recall notice (the Commonwealth recall notice
):
(i) for the recalled goods; or
(ii) for consumer goods of a kind that includes the recalled goods;
the original recall notice, to the extent that it relates to the recalled
goods, ceases to be in force immediately before the Commonwealth recall notice
is issued.
127 Compliance with recall notices
(1) If:
(a) a recall notice for consumer goods is in force; and
(b) the notice requires a person (other than the regulator) to do one or
more things;
the person must comply with the notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If a recall notice for consumer goods is in force, a person must
not, in trade or commerce:
(a) if the notice identifies a defect in, or a dangerous characteristic
of, the consumer goods--supply consumer goods of the kind to which the notice
relates which contain that defect or have that characteristic; or
(b) in any other case--supply consumer goods of the kind to which the
notice relates.
Note:
A pecuniary penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a person contravenes subsection (1) or (2) in relation to
consumer goods; and
(b) another person suffers loss or damage:
(i) because of a defect in, or a dangerous characteristic of, the goods;
or
(ii) because of a reasonably foreseeable use (including a misuse) of the
goods; or
(iii) because, contrary to the recall notice, the other person was not
provided with particular information in relation to the goods;
the other
person is taken, for the purposes of this Schedule, to have suffered the loss
or damage because of the contravention.
Subdivision B--Voluntary recall of
consumer goods
128 Notification requirements for a voluntary recall
of consumer goods
(1) This section applies if a person voluntarily takes action to recall
consumer goods of a particular kind (including consumer goods that have become
fixtures since being supplied) because:
(a) the consumer goods will or may cause injury to any other person; or
(b) a reasonably foreseeable use (including a misuse) of the consumer
goods will or may cause injury to any other person; or
(c) a safety standard for the consumer goods is in force and they do
not, or it is likely that they do not, comply with the standard; or
(d) an interim ban, or a permanent ban, on the consumer goods is in
force.
(2) The person must, within 2 days after taking the action, give the
Commonwealth Minister a written notice that complies with subsection (7).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) The Commonwealth Minister may publish a copy of the notice on the
internet.
(4) A person who has supplied or supplies consumer goods of that kind to
another person outside Australia must give the other person a written notice
that complies with subsection (7).
(5) The notice under subsection (4) must be given as soon as
practicable after the supply of the consumer goods to the person outside
Australia.
(6) A person who is required to give a notice under subsection (4)
must, within 10 days after giving the notice, give a copy of the notice to the
Commonwealth Minister.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(7) A notice given under subsection (2) or (4) must:
(a) state that the consumer goods are subject to recall; and
(b) if the consumer goods contain a defect or have a dangerous
characteristic--set out the nature of that defect or characteristic; and
(c) if a reasonably foreseeable use or misuse of the consumer goods is
dangerous--set out the circumstances of that use or misuse; and
(d) if the consumer goods do not, or it is likely that they do not,
comply with a safety standard for the goods that is in force--set out the
nature of the non-compliance or likely non-compliance; and
(e) if an interim ban, or a permanent ban, on the consumer goods is in
force--state that fact.
Division 4 -- Safety warning notices
129
Safety warning notices about consumer goods and product related
services
(1) A responsible Minister may publish on the internet a written notice
containing one or both of the following:
(a) a statement that consumer goods of a kind specified in the notice
are under investigation to determine whether:
(i) those goods will or may cause injury to any person; or
(ii) a reasonably foreseeable use (including a misuse) of those goods
will or may cause injury to any person;
(b) a warning of possible risks involved in the use of consumer goods of
a kind specified in the notice.
(2) A responsible Minister may publish on the internet a written notice
containing one or both of the following:
(a) a statement that product related services of a kind specified in the
notice are under investigation to determine whether:
(i) consumer goods of a particular kind will or may cause injury to any
person as a result of services of that kind being supplied; or
(ii) a reasonably foreseeable use (including a misuse) of consumer goods
of a particular kind, to which such services relate, will or may cause injury
to any person as a result of such services being supplied;
(b) a warning of possible risks involved in the supply of product
related services of a kind specified in the notice.
130 Announcement
of the results of an investigation etc.
(1) If:
(a) an investigation of consumer goods, or product related services,
specified in a notice under section 129(1) or (2) has been completed; and
(b) none of the following have been published or issued in relation to
those goods or services:
(i) a proposed ban notice under section 132 of the
Competition and Consumer Act;
(ii) a proposed recall notice under section 132A of that Act;
(iii) a notice under section 132J(1) or (2) of that Act;
the
responsible Minister who issued the notice under section 129(1) or (2)
must, as soon as practicable after the completion of the investigation,
announce, by written notice published on the internet, the results of the
investigation.
(2) The responsible Minister may announce in a notice published under
subsection (1) of this section:
(a) whether any action under this Part is proposed to be taken in
relation to the consumer goods or product related services; and
(b) if it is proposed to take any such action--what action is proposed
to be taken.
Division 5 -- Consumer goods, or product related
services, associated with death or serious injury or illness
131
Suppliers to report consumer goods associated with the death or serious injury
or illness of any person
(1) If:
(a) a person (the supplier ), in trade or commerce, supplies consumer
goods; and
(b) the supplier becomes aware of the death or serious injury or illness
of any person and:
(i) considers that the death or serious injury or illness was caused, or
may have been caused, by the use or foreseeable misuse of the consumer goods;
or
(ii) becomes aware that a person other than the supplier considers that
the death or serious injury or illness was caused, or may have been caused, by
the use or foreseeable misuse of the consumer goods;
the supplier must,
within 2 days of becoming so aware, give the Commonwealth Minister a written
notice that complies with subsection (5).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or serious injury or illness was not
caused by the use or foreseeable misuse of the consumer goods; or
(b) it is very unlikely that the death or serious injury or illness was
caused by the use or foreseeable misuse of the consumer goods; or
(c) the supplier , or another person,
is required to notify the death or serious injury or illness in accordance
with a law of the Commonwealth, a State or a Territory that is a law specified
in the regulations; or
(d) the supplier , or another person,
is required to notify the death or serious injury or illness in accordance
with an industry code of practice that:
(i) applies to the supplier or other person ; and
(ii) is specified in the regulations.
(3) Subsection (1) applies whether or not the consumer goods were
being used before or at the time the death or serious injury or illness
occurred.
(4) Without limiting subsection (1), the ways in which the supplier
may become aware as mentioned in subsection (1)(b) include receiving the
relevant information from any of the following:
(a) a consumer;
(b) a person who re-supplies the consumer goods;
(c) a repairer or insurer of the goods;
(d) an industry organisation or consumer organisation.
(5) The notice must:
(a) identify the consumer goods; and
(b) include information about the following matters to the extent that
it is known by the supplier at the time the notice is given:
(i) when, and in what quantities, the consumer goods were manufactured
in Australia, supplied in Australia, imported into Australia or exported from
Australia;
(ii) the circumstances in which the death or serious injury or illness
occurred;
(iii) the nature of any serious injury or illness suffered by any
person;
(iv) any action that the supplier has taken, or is intending to take, in
relation to the consumer goods.
(6) The giving of the notice under subsection (1) is not to be
taken for any purpose to be an admission by the supplier of any liability in
relation to:
(a) the consumer goods; or
(b) the death or serious injury or illness of any person.
132
Suppliers to report product related services associated with the death or
serious injury or illness of any person
(1) If:
(a) a person (the supplier ), in trade or commerce, supplies product
related services; and
(b) the supplier becomes aware of the death or serious injury or illness
of any person and:
(i) considers that the death or serious injury or illness was caused, or
may have been caused, by the use or foreseeable misuse of the consumer goods
to which the services relate; or
(ii) becomes aware that a person other than the supplier considers that
the death or serious injury or illness was caused, or may have been caused, by
the use or foreseeable misuse of the consumer goods to which the services
relate;
the supplier must, within 2 days of becoming so aware, give the
Commonwealth Minister a written notice that complies with subsection (5).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1) does not apply if:
(a) it is clear that the death or serious injury or illness was not
caused by the use or foreseeable misuse of the consumer goods to which the
services relate; or
(b) it is very unlikely that the death or serious injury or illness was
caused by the use or foreseeable misuse of the consumer goods to which the
services relate; or
(c) the supplier , or another person,
is required to notify the death or serious injury or illness in accordance
with a law of the Commonwealth, a State or a Territory that is a law specified
in the regulations; or
(d) the supplier , or another person,
has notified the death or serious injury or illness in accordance with an
industry code of practice that:
(i) applies to the supplier or other person ; and
(ii) is specified in the regulations.
(3) Subsection (1) applies whether or not consumer goods to which
the product related services relate were being used before or at the time the
death or serious injury or illness occurred.
(4) Without limiting subsection (1), the ways in which the supplier
may become aware as mentioned in subsection (1)(b) include receiving the
relevant information from any of the following:
(a) a consumer;
(b) a person who re-supplies the product related services;
(c) an insurer of the services;
(d) an industry organisation or consumer organisation.
(5) The notice must:
(a) identify the product related services and the consumer goods to
which the services relate; and
(b) include information about the following matters to the extent that
it is known by the supplier at the time the notice is given:
(i) when the services have been supplied;
(ii) the circumstances in which the death or serious injury or illness
occurred;
(iii) the nature of any serious injury or illness suffered by any
person;
(iv) any action that the supplier has taken, or is intending to take, in
relation to the services.
(6) The giving of the notice under subsection (1) is not to be
taken for any purpose to be an admission by the supplier of any liability in
relation to:
(a) the product related services; or
(b) the consumer goods to which the services relate; or
(c) the death or serious injury or illness of any person.
132A
Confidentiality of notices given under this Division
(1) A person must not disclose to any other person a notice given under
this Division, or any part of or information contained in such a notice,
unless the person who gave the notice has consented to the notice, or that
part or information, not being treated as confidential.
(2) This section does not apply if:
(a) the disclosure is made by the Commonwealth Minister to:
(i) another responsible Minister; or
(ii) the regulator; or
(iii) an associate regulator; or
(b) the disclosure is made by the Commonwealth Minister and the
Commonwealth Minister considers that the disclosure is in the public interest;
or
(c) the disclosure is made by a member of the staff of the regulator, or
an associate regulator, in the performance of his or her duties as such a
member of staff, and is made:
(i) to another member of the staff of the regulator or associate
regulator; or
(ii) if the person making the disclosure is a member of the staff of the
regulator--to an associate regulator; or
(iii) if the person making the disclosure is a member of the staff of an
associate regulator--to the regulator or another associate regulator; or
(d) the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the
criminal law or of a law imposing a pecuniary penalty.
(3) This section also does not apply if the disclosure is made by a
member of the staff of the regulator, or an associate regulator, in the
performance of his or her duties as such a member of staff, and is made
because it is reasonably necessary to protect public safety, to:
(a) any other agency within the meaning of the
Freedom of Information Act 1982 ; or
(b) the Director of Public Prosecutions; or
(c) a State/Territory government body (within the meaning of
section 155AAA of the Competition and Consumer Act); or
(d) a foreign government body (within the meaning of the
Competition and Consumer Act ).
Division 6 -- Miscellaneous
133
Liability under a contract of insurance
If:
(a) a contract of insurance between an insurer and a person relates to:
(i) the recall of consumer goods that are supplied by the person, or
which the person proposes to supply; or
(ii) the liability of the person with respect to possible defects in
such consumer goods; and
(b) the person gives information relating to any such consumer goods to:
(i) a responsible Minister; or
(ii) the regulator; or
(iii) a person appointed or engaged under the Public Service Act 1999 ,
or under a corresponding law of a State or a Territory; or
(iv) an officer of an authority of the Commonwealth or of a State or
Territory;
the liability of the insurer under the contract is not affected
only because the person gave the information.
Part 3-4 -- Information
standards
134 Making information standards for goods
and services
(1) The Commonwealth Minister may, by written notice published on the
internet, make an information standard for one or both of the following:
(a) goods of a particular kind;
(b) services of a particular kind.
(2) Without limiting subsection (1), an information standard for
goods or services of a particular kind may:
(a) make provision in relation to the content of information about goods
or services of that kind; or
(b) require the provision of specified information about goods or
services of that kind; or
(c) provide for the manner or form in which such information is to be
provided; or
(d) provide that such information is not to be provided in a specified
manner or form; or
(e) provide that information of a specified kind is not to be provided
about goods or services of that kind; or
(f) assign a meaning to specified information about goods or services.
135 Declaring information standards for goods and services
(1) The Commonwealth Minister may, by written notice published on the
internet, declare that the following is an information standard for goods or
services of a kind specified in the instrument:
(a) a particular standard, or a particular part of a standard, prepared
or approved by Standards Australia or by an association prescribed by the
regulations;
(b) such a standard, or such a part of a standard, with additions or
variations specified in the notice.
(2) The Commonwealth Minister must not declare under subsection (1)
that a standard, or a part of a standard, referred to in that subsection is an
information standard for:
(a) goods of a particular kind; or
(b) services of a particular kind;
if that standard or part is
inconsistent with an information standard for those goods or services that is
in force and was made under section 134(1).
136 Supplying etc.
goods that do not comply with information standards
(1) A person must not, in trade or commerce, supply goods of a
particular kind if:
(a) an information standard for goods of that kind is in force; and
(b) the person has not complied with that standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply goods the
supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce,
manufacture, possess or have control of goods the supply of which is
prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding under Part 5-2 in relation to a contravention
of subsection (3), it is a defence if the defendant proves that the
defendant's manufacture, possession or control of the goods was not for the
purpose of supplying the goods.
(5) Subsections (1), (2) and (3) do not apply to goods that are
intended to be used outside Australia.
(6) Unless the contrary is established, it is presumed, for the purposes
of this section, that goods are intended to be used outside Australia if
either of the following is applied to the goods:
(a) a statement that the goods are for export only;
(b) a statement indicating, by the use of words authorised by the
regulations to be used for the purposes of this subsection, that the goods are
intended to be used outside Australia.
(7) Without limiting subsection (6), a statement may, for the
purposes of that subsection, be applied to goods by being:
(a) woven in, impressed on, worked into or annexed or affixed to the
goods; or
(b) applied to a covering, label, reel or thing in or with which the
goods are supplied.
(8) If:
(a) a person (the supplier ) supplies goods in contravention of
subsection (1), (2) or (3); and
(b) another person suffers loss or damage because, contrary to the
information standard, he or she was not provided with particular information
in relation to the goods; and
(c) the other person would not have suffered the loss or damage if the
supplier had complied with the information standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
137 Supplying etc. services that do not
comply with information standards
(1) A person must not, in trade or commerce, supply services of a
particular kind if:
(a) an information standard for services of that kind is in force; and
(b) the person has not complied with that standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply services
the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a person (the supplier ) supplies services in contravention of
subsection (1) or (2); and
(b) another person suffers loss or damage because, contrary to the
information standard, he or she was not provided with particular information
in relation to the services; and
(c) the other person would not have suffered the loss or damage if the
supplier had complied with the information standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
137A Safe harbour for complying with
information standards about free range eggs
(1) Neither section 18 nor paragraph 29(1)(a) or 151(1)(a)
applies to a person in relation to the labelling or displaying of eggs as free
range eggs if, when doing so, the person is complying with all requirements:
(a) specified in an information standard for eggs; and
(b) relating to the labelling or displaying of free range eggs,
including requirements about:
(i) the use of the words "free range"; or
(ii) representing that eggs are free range eggs.
(2) If:
(a) proceedings are brought against a person in respect of
section 18 or paragraph 29(1)(a) or 151(1)(a); and
(b) the person seeks to rely on subsection (1) of this section in
the proceedings;
the person bears an evidential burden in relation to the
matters set out in that subsection.
(3) An egg is an egg
laid by a female domestic chicken ( Gallus gallus domesticus ).
(4) Free range egg has the meaning given by the information standard
mentioned in paragraph (1)(a).
Part 3-5 -- Liability of
manufacturers for goods with safety defects
Division 1 -- Actions
against manufacturers for goods with safety defects
138 Liability for
loss or damage suffered by an injured individual
(1) A manufacturer of goods is liable to compensate an individual if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) the individual suffers injuries because of the safety defect.
(2) The individual may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the individual.
(3) If the individual dies because of the injuries, a law of a State or
a Territory about liability in respect of the death of individuals applies as
if:
(a) the action were an action under the law of the State or Territory
for damages in respect of the injuries; and
(b) the safety defect were the manufacturer's wrongful act, neglect or
default.
139 Liability for loss or damage suffered by a person other
than an injured individual
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) an individual (other than the person) suffers injuries because of
the safety defect; and
(d) the person suffers loss or damage because of:
(i) the injuries; or
(ii) if the individual dies because of the injuries--the individual's
death; and
(e) the loss or damage does not come about because of a business or
professional relationship between the person and the individual.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
140 Liability
for loss or damage suffered by a person if other goods are destroyed or
damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) other goods of a kind ordinarily acquired for personal, domestic or
household use or consumption are destroyed or damaged because of the safety
defect; and
(d) the person used or consumed, or intended to use or consume, the
destroyed or damaged goods for personal, domestic or household use or
consumption; and
(e) the person suffers loss or damage as a result of the destruction or
damage.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
141 Liability
for loss or damage suffered by a person if land, buildings or fixtures are
destroyed or damaged
(1) A manufacturer of goods is liable to compensate a person if:
(a) the manufacturer supplies the goods in trade or commerce; and
(b) the goods have a safety defect; and
(c) land, buildings or fixtures are destroyed or damaged because of the
safety defect; and
(d) the land, buildings or fixtures are ordinarily acquired for private
use; and
(e) the person used, or intended to use, the land, buildings or fixtures
for private use; and
(f) the person suffers loss or damage as a result of the destruction or
damage.
(2) The person may recover, by action against the manufacturer, the
amount of the loss or damage suffered by the person.
142 Defences to
defective goods actions
In a defective goods action, it is a defence if it is established that:
(a) the safety defect in the goods that is alleged to have caused the
loss or damage did not exist:
(i) in the case of electricity--at the time at which the electricity was
generated, being a time before it was transmitted or distributed; or
(ii) in any other case--at the time when the goods were supplied by
their actual manufacturer; or
(b) the goods had that safety defect only because there was compliance
with a mandatory standard for them; or
(c) the state of scientific or technical knowledge at the time when the
goods were supplied by their manufacturer was not such as to enable that
safety defect to be discovered; or
(d) if the goods that had that safety defect were comprised in other
goods--that safety defect is attributable only to:
(i) the design of the other goods; or
(ii) the markings on or accompanying the other goods; or
(iii) the instructions or warnings given by the manufacturer of the
other goods.
Division 2 -- Defective goods actions
143 Time
for commencing defective goods actions
(1) Subject to subsection (2), a person may commence a defective
goods action at any time within 3 years after the time the person became
aware, or ought reasonably to have become aware, of all of the following:
(a) the alleged loss or damage;
(b) the safety defect of the goods;
(c) the identity of the person who manufactured the goods.
(2) A defective goods action must be commenced within 10 years of the
supply by the manufacturer of the goods to which the action relates.
144
Liability joint and several
If 2 or more persons are liable under Division 1 for the same loss or
damage, they are jointly and severally liable.
145 Survival of
actions
A law of a State or a Territory about the survival of causes of action vested
in persons who die applies to actions under Division 1.
146 No
defective goods action where workers' compensation law etc. applies
Division 1 does not apply to a loss or damage in respect of which an
amount has been, or could be, recovered under a law of the Commonwealth, a
State or a Territory that:
(a) relates to workers' compensation; or
(b) gives effect to an international agreement.
147
Unidentified manufacturer
(1) A person who:
(a) wishes to institute a defective goods action; but
(b) does not know who is the manufacturer of the goods to which the
action would relate;
may, by written notice given to a supplier, or each
supplier, of the goods who is known to the person, request the supplier or
suppliers to give the person particulars identifying the manufacturer of the
goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the request or requests, the
person still does not know who is the manufacturer of the goods, then each
supplier:
(a) to whom the request was made; and
(b) who did not comply with the request;
is taken, for the purposes of
the defective goods liability action (but not for the purposes of
section 142(c)), to be the manufacturer of the goods.
148
Commonwealth liability for goods that are defective only because of compliance
with Commonwealth mandatory standard
(1) If a person (however described) against whom a defective goods
action is brought raises the defence that the goods had the alleged safety
defect only because there was compliance with a Commonwealth mandatory
standard for the goods, the person must, as soon as practicable after raising
that defence, give the Commonwealth:
(a) a prescribed notice of the action and of that defence; and
(b) a copy of the person's defence in the action.
(2) The giving of the notice and defence makes the Commonwealth a
defendant in the action.
(3) If, in the action, the court finds that the person (the plaintiff )
by whom the action is brought would, but for the defence referred to in
subsection (1), have succeeded against the person (other than the
Commonwealth) against which the action is brought, then:
(a) the Commonwealth, and not the person (other than the Commonwealth)
against which the action is brought, is liable to pay the plaintiff for the
amount of the loss or damage caused by the safety defect; and
(b) the court is to enter judgment against the Commonwealth for that
amount; and
(c) the court may make such orders for costs as the court considers
just.
149 Representative actions by the regulator
(1) The regulator may, by application, commence a defective goods action
on behalf of one or more persons identified in the application who have
suffered the loss or damage in relation to which the action is commenced.
(2) The regulator may only make the application if it has obtained the
written consent of the person, or each of the persons, on whose behalf the
application is being made.
Division 3 -- Miscellaneous
150
Application of all or any provisions of this Part etc. not to be excluded or
modified
(1) Any term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term) that purports to
exclude, restrict or modify, or has the effect of excluding, restricting or
modifying, any of the following is void:
(a) the application of all or any of the provisions of this Part;
(b) the exercise of a right conferred by any of those provisions;
(c) any liability under any of those provisions.
(2) A term of a contract is not taken to exclude, restrict or modify the
application of a provision of this Part unless the term does so expressly or
is inconsistent with that provision.
Chapter 4 -- Offences
Part 4-1 -- Offences relating to unfair practices
Division 1 --
False or misleading representations etc.
151 False or misleading
representations about goods or services
(1) A person commits an offence if the person, in trade or commerce, in
connection with the supply or possible supply of goods or services or in
connection with the promotion by any means of the supply or use of goods or
services:
(a) makes a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style or model or
have had a particular history or particular previous use; or
(b) makes a false or misleading representation that services are of a
particular standard, quality, value or grade; or
(c) makes a false or misleading representation that goods are new; or
(d) makes a false or misleading representation that a particular person
has agreed to acquire goods or services; or
(e) makes a false or misleading representation that purports to be a
testimonial by any person relating to goods or services; or
(f) makes a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) makes a false or misleading representation that goods or services
have sponsorship, approval, performance characteristics, accessories, uses or
benefits; or
(h) makes a false or misleading representation that the person making
the representation has a sponsorship, approval or affiliation; or
(i) makes a false or misleading representation with respect to the price
of goods or services; or
(j) makes a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare parts for
goods; or
(k) makes a false or misleading representation concerning the place of
origin of goods; or
(l) makes a false or misleading representation concerning the need for
any goods or services; or
(m) makes a false or misleading representation concerning the existence,
exclusion or effect of any condition, warranty, guarantee, right or remedy
(including a guarantee under Division 1 of Part 3-2); or
(n) makes a false or misleading representation concerning a requirement
to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition, warranty,
guarantee, right or remedy (including a guarantee under Division 1 of
Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State or a
Territory (other than an unwritten law).
Note: For rules relating
to representations as to the country of origin of goods, see Part 5-3.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation of a kind referred to in
subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary
is adduced, the representation is not misleading; or
(b) have the effect of placing on any person an onus of proving that the
representation is not misleading.
(4) Subsection (1) is an offence of strict liability.
Penalty
(5) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(6) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
152 False or misleading representations about sale etc. of
land
(1) A person commits an offence if the person, in trade or commerce, in
connection with the sale or grant, or the possible sale or grant, of an
interest in land or in connection with the promotion by any means of the sale
or grant of an interest in land:
(a) makes a false or misleading representation that the person making
the representation has a sponsorship, approval or affiliation; or
(b) makes a false or misleading representation concerning the nature of
the interest in the land; or
(c) makes a false or misleading representation concerning the price
payable for the land; or
(d) makes a false or misleading representation concerning the location
of the land; or
(e) makes a false or misleading representation concerning the
characteristics of the land; or
(f) makes a false or misleading representation concerning the use to
which the land is capable of being put or may lawfully be put; or
(g) makes a false or misleading representation concerning the existence
or availability of facilities associated with the land.
(2) Subsection (1) is an offence of strict liability.
Penalty
(2A) An offence
against subsection (1) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(2B) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
Other
(3) This section does not affect the application of any other provision
of this Part in relation to the supply or acquisition, or the possible
supply or acquisition, of interests in land.
153 Misleading conduct
relating to employment
(1) A person commits an offence if the person, in relation to employment
that is to be, or may be, offered by the person or by another person, engages
in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
(2) Subsection (1) is an offence of strict liability.
Penalty
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
154 Offering rebates, gifts, prizes etc.
(1) A person commits an offence if:
(a) the person, in trade or commerce, offers any rebate, gift, prize or
other free item; and
(b) the offer is connected with:
(i) the supply or possible supply of goods or services; or
(ii) the promotion by any means of the supply or use of goods or
services; or
(iii) the sale or grant, or the possible sale or grant, of an interest
in land; or
(iv) the promotion by any means of the sale or grant of an interest in
land; and
(c) the offer is made with the intention of not providing the rebate,
gift, prize or other free item, or of not providing it as offered.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers any rebate, gift, prize or
other free item; and
(b) the offer is connected with:
(i) the supply or possible supply of goods or services; or
(ii) the promotion by any means of the supply or use of goods or
services; or
(iii) the sale or grant, or the possible sale or grant, of an interest
in land; or
(iv) the promotion by any means of the sale or grant of an interest in
land; and
(c) the person fails to provide the rebate, gift, prize or other free
item, in accordance with the offer, within the time specified in the offer or
(if no such time is specified) within a reasonable time after making the
offer.
(3) Subsection (2) does not apply if:
(a) the person's failure to provide the rebate, gift, prize or other
free item in accordance with the offer was due to the act or omission of
another person, or to some other cause beyond the person's control; and
(b) the person took reasonable precautions and exercised due diligence
to avoid the failure.
(4) Subsection (2) does not apply to an offer that the person makes
to another person if:
(a) the person offers to the other person a different rebate, gift,
prize or other free item as a replacement; and
(b) the other person agrees to receive the different rebate, gift, prize
or other free item.
(5) Strict liability applies to subsections (1)(b) and (2)(b).
Penalty
(5A) An
offence against subsection (1) or (2) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5B) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Other
(6) This section does not affect the application of any other provision
of this Part in relation to the supply or acquisition, or the possible
supply or acquisition, of interests in land.
155 Misleading conduct
as to the nature etc. of goods
(1) A person commits an offence if the person, in trade or commerce,
engages in conduct that is liable to mislead the public as to the nature, the
manufacturing process, the characteristics, the suitability for their purpose
or the quantity of any goods.
(2) Subsection (1) is an offence of strict liability.
Penalty
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
156 Misleading conduct as to the nature etc. of services
(1) A person commits an offence if the person, in trade or commerce,
engages in conduct that is liable to mislead the public as to the nature, the
characteristics, the suitability for their purpose or the quantity of any
services.
(2) Subsection (1) is an offence of strict liability.
Penalty
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
157 Bait advertising
(1) A person commits an offence if:
(a) the person, in trade or commerce, advertises goods or services for
supply at a specified price; and
(b) there are reasonable grounds for believing that the person will not
be able to offer for supply those goods or services at that price for a period
that is, and in quantities that are, reasonable, having regard to:
(i) the nature of the market in which the person carries on business;
and
(ii) the nature of the advertisement.
(2) A person commits an offence if:
(a) the person, in trade or commerce, advertises goods or services for
supply at a specified price; and
(b) the person fails to offer such goods or services for supply at that
price for a period that is, and in quantities that are, reasonable having
regard to:
(i) the nature of the market in which the person carries on business;
and
(ii) the nature of the advertisement.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(3A) An
offence against subsection (1) or (2) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(3B) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Defence
(4) In a prosecution of a person (the defendant ) under
subsection (2), for failing to offer goods or services to another person
(the customer ), it is a defence if:
(a) the defendant proves that:
(i) he or she offered to supply, or to procure a third person to supply,
goods or services of the kind advertised to the customer within a reasonable
time, in a reasonable quantity and at the advertised price; or
(ii) he or she offered to supply immediately, or to procure a third
person to supply within a reasonable time, equivalent goods or services to the
customer in a reasonable quantity and at the price at which the
first-mentioned goods or services were advertised; and
(b) in either case, if the offer was accepted by the customer, the
defendant proves that he or she has so supplied, or procured a third person to
supply, the goods or services.
158 Wrongly accepting payment
(1) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person intends not to supply the
goods or services.
(2) Strict liability applies to subsection (1)(a).
(3) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person intends to supply goods or
services materially different from the goods or services in respect of which
the payment or other consideration is accepted.
(4) Strict liability applies to subsection (3)(a).
(5) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) at the time of the acceptance, the person was reckless as to whether
he or she would be able to supply the goods or services:
(i) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was accepted; or
(ii) if no period is specified at or before that time--within a
reasonable time.
(6) Strict liability applies to subsection (5)(a).
(7) A person commits an offence if:
(a) the person, in trade or commerce, accepts payment or other
consideration for goods or services; and
(b) the person fails to supply all the goods or services:
(i) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was accepted; or
(ii) if no period is specified at or before that time--within a
reasonable time.
(8) Subsection (7) does not apply if:
(a) the person's failure to supply all the goods or services within the
period, or within a reasonable time, was due to the act or omission of another
person, or to some other cause beyond the person's control; and
(b) the person took reasonable precautions and exercised due diligence
to avoid the failure.
(9) Subsection (7) does not apply if:
(a) the person offers to supply different goods or services as a
replacement to the person (the customer ) to whom the original supply was to
be made; and
(b) the customer agrees to receive the different goods or services.
(10)
Subsection (7) is an offence of strict liability.
Penalty
(10A) An offence against
subsection (1), (3), (5) or (7) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(10B) An
offence against subsection (1), (3), (5) or (7) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Other
(11)
Subsections (1), (3), (5) and (7) apply whether or not the payment or
other consideration that the person accepted represents the whole or a part of
the payment or other consideration for the supply of the goods or services.
159 Misleading representations about certain business activities
(1) A person commits an offence if:
(a) the person, in trade or commerce, makes a representation; and
(b) the representation is false or misleading in a material particular;
and
(c) the representation concerns the profitability, risk or any other
material aspect of any business activity that the person has represented as
one that can be, or can be to a considerable extent, carried on at or from a
person's place of residence.
(2) A person commits an offence if:
(a) the person, in trade or commerce, makes a representation; and
(b) the representation is false or misleading in a material particular;
and
(c) the representation concerns the profitability, risk or any other
material aspect of any business activity:
(i) that the person invites (whether by advertisement or otherwise)
other persons to engage or participate in, or to offer or apply to engage or
participate in; and
(ii) that requires the performance of work by other persons, or the
investment of money by other persons and the performance by them of work
associated with the investment.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
160 Application of provisions of this Division to
information providers
(1) Sections 151, 152, 155, 156 and 159 do not apply to a
publication of matter by an information provider if:
(a) in any case--the information provider made the publication in the
course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or the holder of a
licence granted under the Broadcasting Services Act 1992 --the publication was
by way of a radio or television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an
advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion by any
means of the supply or use of, goods or services (the publicised goods or
services ), if:
(a) the publicised goods or services were goods or services of a kind
supplied by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who supplies goods or services of
the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that supplies goods or services of the same kind as the publicised
goods or services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or the
promotion by any means of the sale or grant of, interests in land (the
publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or
granted by the information provider or, if the information provider is a body
corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a person who sells or grants interests of
the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with, a body corporate that is related to a body
corporate that sells or grants interests of the same kind as the publicised
interests in land.
Division 2 -- Unsolicited supplies
161
Unsolicited cards etc.
(1) A person commits an offence if:
(a) the person sends a credit card or a debit card, or an article that
may be used as a credit card and a debit card, to another person; and
(b) either:
(i) the person had issued the card; or
(ii) the card was sent on behalf of the person who had issued the card.
(2) Subsection (1) does not apply if the person sends the card to
the other person:
(a) pursuant to a written request by the person who will be under a
liability to the person who issued the card or article in respect of the use
of the card or article; or
(b) in renewal or replacement of, or in substitution for:
(i) a card or article of the same kind previously sent to the other
person pursuant to a written request by the person who was under a liability,
to the person who issued the card previously so sent, in respect of the use of
that card; or
(ii) a card or article of the same kind previously sent to the other
person and used for a purpose for which it was intended to be used.
(3) A person commits an offence if the person takes any action that
enables another person who has a credit card to use the card as a debit card.
(4) A person commits an offence if the person takes any action that
enables another person who has a debit card to use the card as a credit card.
(5) Subsection (3) or (4) does not apply if the person takes the
action in accordance with the other person's written request.
(6) Subsections (1), (3) and (4) are offences of strict liability.
Penalty
(7) An offence against subsection (1), (3) or (4) committed by a
body corporate is punishable on conviction by a fine of not more than the
greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(8) An offence against subsection (1), (3) or (4) committed by a
person other than a body corporate is punishable on conviction by a fine of
not more than $500,000.
162 Assertion of right to payment for
unsolicited goods or services
(1) A person commits an offence if the person, in trade or commerce,
asserts a right to payment from another person for unsolicited goods.
(2) A person commits an offence if the person, in trade or commerce,
asserts a right to payment from another person for unsolicited services.
(3) A person commits an offence if the person, in trade or commerce,
sends to another person an invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
unsolicited goods or unsolicited services; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations made for the purposes of
section 40(3)(b).
(4) Subsection (1), (2) or (3) does not apply if the person proves
that he or she had reasonable cause to believe that there was a right to the
payment or charge.
(5) Subsections (1), (2) and (3) are offences of strict liability.
Penalty
(6) An offence against subsection (1), (2) or (3) committed by a
body corporate is punishable on conviction by a fine of not more than the
greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(7) An offence against subsection (1), (2) or (3) committed by a
person other than a body corporate is punishable on conviction by a fine of
not more than $500,000.
163 Assertion of right to payment for
unauthorised entries or advertisements
(1) A person commits an offence if the person asserts a right to payment
from another person of a charge for placing, in a publication, an entry or
advertisement relating to:
(a) the other person; or
(b) the other person's profession, business, trade or occupation.
(2) A person commits an offence if the person sends to another person an
invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for placing,
in a publication, an entry or advertisement relating to:
(i) the other person; or
(ii) the other person's profession, business, trade or occupation; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations made for the purposes of
section 43(2)(b).
(3) Subsections (1) and (2) do not apply if the person proves that
he or she knew, or had reasonable cause to believe, that the other person
authorised the placing of the entry or advertisement.
(4) Subsections (1) and (2) do not apply to an entry or
advertisement that is placed in a publication published by a person who is:
(a) the publisher of a publication that has an audited circulation of
10,000 copies or more per week, as confirmed by the most recent audit of the
publication by a body specified in the regulations made for the purposes of
section 43(3)(a); or
(b) a body corporate related to such a publisher; or
(c) the Commonwealth, a State or a Territory, or an
authority of the Commonwealth, a State or a Territory; or
(d) a person specified in regulations made for the purposes of
section 43(3)(d).
(5) Subsections (1) and (2) are offences of strict liability.
Penalty
(5A) An
offence against subsection (1) or (2) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5B) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Other
(6) A person is not taken for the purposes of this section to have
authorised the placing of the entry or advertisement, unless:
(a) a document authorising the placing of the entry or advertisement has
been signed by the person or by another person authorised by him or her; and
(b) a copy of the document has been given to the person before the right
to payment of a charge for the placing of the entry or advertisement is
asserted; and
(c) the document specifies:
(i) the name and address of the person publishing the entry or
advertisement; and
(ii) particulars of the entry or advertisement; and
(iii) the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is to be, calculated.
Division 3 -- Pyramid schemes
164 Participation in pyramid
schemes
(1) A person commits an offence if the person participates in a pyramid
scheme.
(2) A person commits an offence if the person induces another person to
participate in a pyramid scheme.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Division 4 -- Pricing
165 Multiple pricing
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies goods; and
(b) the goods have more than one displayed price; and
(c) the supply takes place for a price that is not the lower, or lowest,
of the displayed prices.
Penalty:
(a) if the person is a body corporate--$5,000; or
(b) if the person is not a body corporate--$1,000.
(2) Subsection (1) is an offence of strict liability.
166
Single price to be specified in certain circumstances
(1) A person commits an offence if the person, in trade or commerce, in
connection with:
(a) the supply, or possible supply, to another person of goods or
services of a kind ordinarily acquired for personal, domestic or household use
or consumption; or
(b) the promotion by any means of the supply to another person, or of
the use by another person, of goods or services of a kind ordinarily acquired
for personal, domestic or household use or consumption;
makes a
representation with respect to an amount that, if paid, would constitute a
part of the consideration for the supply of the goods or services.
(2) A person is not required to include, in the single price for goods,
a charge that is payable in relation to sending the goods from the supplier to
the other person.
(3) Subsection (1) does not apply if the person also:
(a) specifies, in a prominent way and as a single figure, the single
price for the goods or services; and
(b) if, in relation to goods:
(i) the person does not include in the single price a charge that is
payable in relation to sending the goods from the supplier to the other
person; and
(ii) the person knows, at the time of the representation, the minimum
amount of a charge in relation to sending the goods from the supplier to the
other person that must be paid by the other person;
specifies that minimum amount.
(4) Subsection (1) does not apply if the representation is made
exclusively to a body corporate.
(5) For the purposes of subsection (3)(a), the person is taken not
to have specified a single price for the goods or services in a prominent way
unless the single price is at least as prominent as the most prominent of the
parts of the consideration for the supply.
(6) Subsection (5) does not apply in relation to services to be
supplied under a contract if:
(a) the contract provides for the supply of the services for the term of
the contract; and
(b) the contract provides for periodic payments for the services to be
made during the term of the contract; and
(c) if the contract also provides for the supply of goods--the goods are
directly related to the supply of the services.
(7) Subsection (1) is an offence of strict liability.
Penalty
(8) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(9) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
Division 5 -- Other unfair practices
167 Referral
selling
(1) A person commits an offence if:
(a) the person, in trade or commerce, induces a consumer to acquire
goods or services by representing that the consumer will, after the contract
for the acquisition of the goods or services is made, receive a rebate,
commission or other benefit in return for:
(i) giving the person the names of prospective customers; or
(ii) otherwise assisting the person to supply goods or services to other
consumers; and
(b) the receipt of the rebate, commission or other benefit is contingent
on an event occurring after that contract is made.
(2) Subsection (1) is an offence of strict liability.
Penalty
(3) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine of not more than the greater of the
following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(4) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
168 Harassment and coercion
(1) A person commits an offence if:
(a) the person uses physical force, or undue harassment or coercion; and
(b) the physical force, or undue harassment or coercion is used in
connection with:
(i) the supply or possible supply of goods or services; or
(ii) the payment for goods or services; or
(iii) the sale or grant, or the possible sale or grant, of an interest
in land; or
(iv) the payment for an interest in land.
(2) Subsection (1) is an offence of strict liability.
Penalty
(2A) An offence
against subsection (1) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(2B) An offence against subsection (1) committed by a person other
than a body corporate is punishable on conviction by a fine of not more than
$500,000.
Other
(3) Subsections (1)(b)(iii) and (iv) do not affect the application
of any other provision of this Part in relation to the supply or
acquisition, or the possible supply or acquisition, of interests in land.
Part 4-2 -- Offences relating to consumer transactions
Division 1
-- Consumer guarantees
169 Display notices
(1) A person commits an offence if:
(a) the person makes a supply to a consumer to which:
(i) guarantees apply under Division 1 of Part 3-2; and
(ii) a determination under subsection 66(1) applies; and
(b) a notice that meets the requirements of the determination is not, in
accordance with the determination:
(i) if the consumer takes delivery of the goods or services at the
supplier's premises--displayed at those premises; or
(ii) otherwise--drawn to the consumer's attention before the consumer
agrees to the supply of the goods.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
Division 2 -- Unsolicited consumer agreements
Subdivision
A--Negotiating unsolicited consumer agreements
170 Permitted hours
for negotiating an unsolicited consumer agreement
(1) A dealer commits an offence if the dealer calls on a person for the
purpose of negotiating an unsolicited consumer agreement, or for an incidental
or related purpose:
(a) at any time on a Sunday or a public holiday; or
(b) before 9 am on any other day; or
(c) after 6 pm on any other day (or after 5 pm if the other day is a
Saturday).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) does not apply if the dealer calls on, or
telephones, the person in accordance with consent that:
(a) was given by the person to the dealer or a person acting on the
dealer's behalf; and
(b) was not given in the presence of the dealer or a person acting on
the dealer's behalf.
(3) Subsection (1) is an offence of strict liability.
171
Disclosing purpose and identity
(1) A dealer commits an offence if the dealer:
(a) calls on a person for the purpose of negotiating an unsolicited
consumer agreement, or for an incidental or related purpose; and
(b) does not as soon as practicable and in any event before starting to
negotiate:
(i) clearly advise the person that the dealer's purpose is to seek the
person's agreement to a supply of the goods or services concerned; and
(ii) clearly advise the person that the dealer is obliged to leave the
premises immediately on request; and
(iii) provide to the person such information relating to the dealer's
identity as is prescribed by the regulations made for the purposes of
section 74(c).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
172
Ceasing to negotiate on request
(1) A dealer commits an offence if the dealer:
(a) calls on a person at any premises for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related purpose; and
(b) does not leave the premises immediately on the request of:
(i) the occupier of the premises, or any person acting with the actual
or apparent authority of the occupier; or
(ii) the person (the prospective consumer ) with whom the negotiations
are being conducted.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) A dealer commits an offence if:
(a) the prospective consumer has made the request referred to in
subsection (1)(b); and
(b) the dealer contacts the prospective consumer for the purpose of
negotiating an unsolicited consumer agreement (or for an incidental or related
purpose) within 30 days after the prospective consumer made the request.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(3) If the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate, subsection (2) applies to that
supplier, and any person acting on behalf of the supplier, in the same way
that it applies to the dealer.
(4) Subsection (2) does not apply to the dealer contacting the
prospective consumer if:
(a) the dealer is not, or is not to be, the supplier of the goods or
services to which the negotiations relate; and
(b) the contact relates to a supply by another supplier.
(5) Subsections (1) and (2) are offences of strict liability.
173
Informing person of termination period etc.
(1) A dealer commits an offence if the dealer makes an unsolicited
consumer agreement with a person, and:
(a) before the agreement is made, the person is not given information as
to the following:
(i) the person's right to terminate the agreement during the termination
period;
(ii) the way in which the person may exercise that right;
(iii) such other matters as are prescribed by regulations made for the
purposes of section 76(a)(iii); or
(b) if the agreement is made in the presence of both the dealer and the
person--the person is not given the information in writing; or
(c) if the agreement is made by telephone--the person is not:
(i) given the information by telephone; and
(ii) subsequently given the information in writing; or
(d) the form in which, and the way in which, the person is given the
information does not comply with any other requirements prescribed by
regulations made for the purposes of section 76(d).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) If:
(a) a dealer contravenes subsection (1) in relation to an
unsolicited consumer agreement; and
(b) the dealer is not, or is not to be, the supplier of the goods or
services to which the agreement relates;
the supplier of the goods or
services is also taken to have contravened subsection (1) in relation to
the agreement.
(3) Subsection (1) is an offence of strict liability.
Subdivision
B--Requirements for unsolicited consumer agreements etc.
174
Requirement to give document to the consumer
(1) The dealer who negotiated an unsolicited consumer agreement commits
an offence if:
(a) the agreement was not negotiated by telephone; and
(b) the dealer does not give a copy of the agreement to the consumer
under the agreement immediately after the consumer signs the agreement.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) The dealer who negotiated an unsolicited consumer agreement commits
an offence if:
(a) the agreement was negotiated by telephone; and
(b) the dealer does not, within 5 business days after the agreement was
made or such longer period agreed by the parties, give to the consumer under
the agreement:
(i) personally; or
(ii) by post; or
(iii) with the consumer's consent--by electronic communication;
an agreement document evidencing the agreement.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(3) Subsections (1) and (2) are offences of strict liability.
175
Requirements for all unsolicited consumer agreements etc.
(1) The supplier under an unsolicited consumer agreement commits an
offence if the agreement, or (if the agreement was negotiated by telephone)
the agreement document, does not comply with the following requirements:
(a) it must set out in full all the terms of the agreement, including:
(i) the total consideration to be paid or provided by the consumer under
the agreement or, if the total consideration is not ascertainable at the time
the agreement is made, the way in which it is to be calculated; and
(ii) any postal or delivery charges to be paid by the consumer;
(b) its front page must include a notice that:
(i) conspicuously and prominently informs the consumer of the consumer's
right to terminate the agreement; and
(ii) conspicuously and prominently sets out any other information
prescribed by regulations made for the purposes of section 79(b)(ii); and
(iii) complies with any other requirements prescribed by regulations
made for the purposes of section 79(b)(iii);
(c) it must be accompanied by a notice that:
(i) may be used by the consumer to terminate the agreement; and
(ii) complies with any requirements prescribed by regulations made for
the purposes of section 79(c)(ii);
(d) it must conspicuously and prominently set out in full:
(i) the supplier's name; and
(ii) if the supplier has an ABN--the supplier's ABN; and
(iii) if the supplier does not have an ABN but has an ACN--the
supplier's ACN; and
(iv) the supplier's business address (not being a post box) or, if the
supplier does not have a business address, the supplier's residential address;
and
(v) if the supplier has an email address--the supplier's email address;
and
(vi) if the supplier has a fax number--the supplier's fax number;
(e) it must be printed clearly or typewritten (apart from any amendments
to the printed or typewritten form, which may be handwritten);
(f) it must be transparent.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
176
Additional requirements for unsolicited consumer agreements not negotiated by
telephone
(1) The supplier under an unsolicited consumer agreement that was not
negotiated by telephone commits an offence if the agreement does not comply
with the following requirements:
(a) the agreement must be signed by the consumer under the agreement;
(b) if the agreement is signed by a person on the supplier's behalf--the
agreement must state that the person is acting on the supplier's behalf, and
must set out in full:
(i) the person's name; and
(ii) the person's business address (not being a post box) or, if the
person does not have a business address, the person's residential address; and
(iii) if the person has an email address--the person's email address.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
(3) This section does not limit the operation of section 175.
177
Requirements for amendments of unsolicited consumer agreements
(1) The supplier under an unsolicited consumer agreement commits an
offence if any amendments to the agreement are not signed by both parties to
the agreement.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
Subdivision
C--Terminating unsolicited consumer agreements
178 Obligations of
suppliers on termination
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the agreement is terminated in accordance with section 82; and
(b) the supplier does not, immediately upon being notified of the
termination, return or refund to the consumer under the agreement any
consideration (or the value of any consideration) that the consumer gave under
the agreement or a related contract or instrument.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
179
Prohibition on supplies etc.
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the supplier:
(i) supplies to the consumer under the agreement the goods or services
to be supplied under the agreement; or
(ii) accepts any payment, or any other consideration, in connection with
those goods or services; or
(iii) requires any payment, or any other consideration, in connection
with those goods or services; and
(b) the supply, acceptance or requirement occurs during:
(i) if the agreement was not negotiated by telephone--the period
starting on the day on which the agreement was made and ending at the end of
the tenth business day after the day on which the agreement was made; or
(ii) if the agreement was negotiated by telephone--the period starting
on the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Strict liability applies to subsection (1)(a).
180
Repayment of payments received after termination
(1) The supplier under an unsolicited consumer agreement commits an
offence if:
(a) the agreement is terminated in accordance with section 82; and
(b) the supplier does not immediately refund to the consumer under the
agreement any payment:
(i) that the consumer, or a person acting on the consumer's behalf,
makes to the supplier after the termination; and
(ii) that purports to be made under the agreement or a related contract
or instrument.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
181
Prohibition on recovering amounts after termination
(1) A person commits an offence if:
(a) an unsolicited consumer agreement is terminated in accordance with
section 82; and
(b) the person:
(i) brings, or asserts an intention to bring, legal proceedings against
the consumer; or
(ii) takes, or asserts an intention to take, any other action against
the consumer;
in relation to an amount alleged to be payable, under the agreement or a
related contract or instrument, by the consumer under the agreement.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) A person commits an offence if:
(a) an unsolicited consumer agreement is terminated in accordance with
section 82; and
(b) for the purpose of recovering an amount alleged to be payable, under
the agreement or a related contract or instrument, by the consumer under the
agreement, the person:
(i) places the consumer's name, or causes the consumer's name to be
placed, on a list of defaulters or debtors; or
(ii) asserts an intention to place the consumer's name, or to cause the
consumer's name to be placed, on such a list.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(3) Subsection (1) is an offence of strict liability.
(4) Strict liability applies to subsection (2)(a).
Subdivision
D--Miscellaneous
182 Certain provisions of unsolicited consumer
agreements void
(1) The supplier under an unsolicited consumer agreement commits an
offence if the agreement includes, or purports to include, a provision
(however described) that is, or would be, void because of section 89(1).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) The supplier under an unsolicited consumer agreement commits an
offence if the supplier attempts to enforce or rely on a provision (however
described) that is void because of section 89(1).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(3) Subsections (1) and (2) are offences of strict liability.
183
Waiver of rights
(1) The supplier under an unsolicited consumer agreement commits an
offence if the supplier induces the consumer to waive any right conferred by
Division 2 of Part 3-2.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
184
Application of this Division to persons to whom rights of consumers and
suppliers are assigned etc.
(1) This Division applies in relation to a person to whom the rights of
a consumer (the original consumer ) under a contract for the supply of goods
or services are assigned or transferred, or pass by operation of law, (whether
from the original consumer or from another person) as if the person were the
original consumer.
(2) This Division applies in relation to a person to whom the rights of
a supplier (the original supplier ) under a contract for the supply of goods
or services are assigned or transferred, or pass by operation of law, (whether
from the original supplier or from another person) as if the person were the
original supplier.
185 Application of this Division to supplies to
third parties
This Division applies in relation to a contract for the supply of goods or
services to a consumer (the original consumer ) on the order of another person
as if the other person were also the consumer.
186 Regulations may
limit the application of this Division
This Division (other than section 170) does not apply, or provisions of
this Division (other than section 170) that are specified in regulations
made for the purposes of section 94 do not apply, to or in relation to:
(a) circumstances of a kind specified in those regulations; or
(b) agreements of a kind specified in those regulations; or
(c) the conduct of businesses of a kind specified in those regulations.
187 Application of this Division to certain conduct covered by the
Corporations Act
This Division does not apply in relation to conduct to which section 736,
992A or 992AA of the Corporations Act 2001 applies.
Note: Section 736
of the Corporations Act 2001 prohibits hawking of securities.
Section 992A of that Act prohibits hawking of certain financial products.
Section 992AA of that Act prohibits hawking of interests in managed
investment schemes (which for the purposes of that Act include interests in
notified foreign passport funds).
Division 3 -- Lay-by agreements
188
Lay-by agreements must be in writing etc.
(1) A supplier of goods who is a party to a lay-by agreement commits an
offence if:
(a) the agreement is not in writing; or
(b) a copy of the agreement is not given to the consumer to whom the
goods are, or are to be, supplied.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) is an offence of strict liability.
189
Termination charges
(1) A supplier of goods who is a party to a lay-by agreement commits an
offence if the agreement requires the consumer to pay a termination charge.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) does not apply if the termination charge is
payable only if:
(a) the agreement is terminated by the consumer; and
(b) the supplier has not breached the agreement.
(3) A supplier of goods who is a party to a lay-by agreement commits an
offence if:
(a) the agreement provides that a termination charge is payable; and
(b) the amount of the charge is more than the supplier's reasonable
costs in relation to the agreement.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(4) Subsections (1) and (3) are offences of strict liability.
190
Termination of lay-by agreements by suppliers
(1) A supplier of goods who is a party to a lay-by agreement commits an
offence if the supplier terminates the agreement.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) does not apply if:
(a) the consumer who is a party to the agreement breached a term of the
agreement; or
(b) the supplier is no longer engaged in trade or commerce; or
(c) the goods to which the agreement relates are no longer available.
(3) Subsection (1) is an offence of strict liability.
191
Refund of amounts
(1) A supplier of goods who is a party to a lay-by agreement commits an
offence if:
(a) the agreement is terminated by a party to the agreement; and
(b) the supplier fails to refund to the consumer all the amounts paid by
the consumer under the agreement (other than any termination charge that is
payable under the agreement).
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) is an offence of strict liability.
Division 3A -- Gift cards
191A Gift cards to be redeemable for
at least 3 years
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies a gift card to a
consumer; and
(b) the day the gift card ceases to be redeemable is earlier than 3
years after the day of that supply.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) is an offence of strict liability.
191B
When gift card ceases to be redeemable to appear prominently on gift
card
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies a gift card to a
consumer; and
(b) one of the following does not appear prominently on the gift card:
(i) the date the gift card ceases to be redeemable;
(ii) the month and year the gift card ceases to be redeemable;
(iii) the date the gift card is supplied and a statement that identifies
the period during which the gift card is redeemable;
(iv) the month and year the gift card is supplied and a statement that
identifies the period during which the gift card is redeemable;
(v) the words "no expiry date" or words to that effect.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) Subsection (1) is an offence of strict liability.
191C
Terms and conditions not to allow post-supply fees
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies a gift card to a
consumer; and
(b) the terms or conditions (however described) of the gift card allow
or require the payment of a post-supply fee in relation to the gift card.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) An offence against subsection (1) is an offence of strict
liability.
191D Post-supply fees not to be demanded or received
(1) A person commits an offence if the person, in trade or commerce,
demands or receives payment of a post-supply fee in relation to a gift card.
Penalty:
(a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000.
(2) An offence against subsection (1) is an offence of strict
liability.
191E Regulations may limit the application of this
Division
The regulations may provide that some or all of the provisions of this
Division do not apply to or in relation to:
(a) gift cards of a kind prescribed by the regulations; or
(b) persons of a kind prescribed by the regulations; or
(c) gift cards supplied in circumstances prescribed by the regulations.
Division 4 -- Miscellaneous
192 Prescribed requirements for
warranties against defects
(1) A person commits an offence if the person, in connection with the
supply, in trade or commerce, of goods or services to a consumer:
(a) gives to the consumer a document that evidences a warranty against
defects and that does not comply with the requirements prescribed for the
purposes of section 102(1); or
(b) represents directly to the consumer that the goods or services are
goods or services to which such a warranty against defects relates.
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
193
Repairers must comply with prescribed requirements
(1) A person commits an offence if:
(a) the person accepts from another person goods that the other person
acquired as a consumer; and
(b) the goods are accepted for the purpose of repairing them; and
(c) the person does not give to the other person a notice that complies
with the requirements prescribed for the purposes of section 103(1).
Penalty:
(a) if the person is a body corporate--$50,000; or
(b) if the person is not a body corporate--$10,000.
(2) Subsection (1) is an offence of strict liability.
Part 4-3 -- Offences relating to safety of consumer goods and product
related services
Division 1 -- Safety standards
194 Supplying
etc. consumer goods that do not comply with safety standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies consumer goods of a
particular kind; and
(b) a safety standard for consumer goods of that kind is in force; and
(c) those goods do not comply with the standard.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply (other than for
export) consumer goods of a particular kind; and
(b) a safety standard for consumer goods of that kind is in force; and
(c) those goods do not comply with the standard.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of consumer goods of a particular kind;
and
(b) a safety standard for consumer goods of that kind is in force; and
(c) those goods do not comply with the standard.
(4) Subsection (3) does not apply if the person does not
manufacture, possess or control the goods for the purpose of supplying the
goods (other than for export).
(5) A person commits an offence if:
(a) the person, in trade or commerce, exports consumer goods of a
particular kind; and
(b) a safety standard for consumer goods of that kind is in force; and
(c) those goods do not comply with the standard.
(6) Subsection (5) does not apply if the Commonwealth Minister has,
by written notice given to the person, approved the export of the goods under
section 106(5).
(7) Subsections (1), (2), (3) and (5) are offences of strict
liability.
Penalty
(8) An offence against subsection (1), (2), (3) or (5) committed by
a body corporate is punishable on conviction by a fine of not more than the
greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(9) An offence against subsection (1), (2), (3) or (5) committed by
a person other than a body corporate is punishable on conviction by a fine of
not more than $500,000.
195 Supplying etc. product related services
that do not comply with safety standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies product related services
of a particular kind; and
(b) a safety standard for services of that kind is in force; and
(c) those services do not comply with the standard.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply product related
services of a particular kind; and
(b) a safety standard for services of that kind is in force; and
(c) those services do not comply with the standard.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
196 Requirement to nominate a safety standard
(1) A person commits an offence if the person refuses or fails to comply
with a request given to the person under section 108.
Penalty:
(a) if the person is a body corporate--$22,000; or
(b) if the person is not a body corporate--$4,400.
(2) Subsection (1) is an offence of strict liability.
Division 2 -- Bans on consumer goods and product related services
197
Supplying etc. consumer goods covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies consumer goods of a
particular kind; and
(b) either:
(i) an interim ban on goods of that kind is in force in the place where
the supply occurs; or
(ii) a permanent ban on goods of that kind is in force.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply (other than for
export) consumer goods of a particular kind; and
(b) the supply would be prohibited by subsection (1).
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of consumer goods of a particular kind;
and
(b) supply of the goods would be prohibited by subsection (1).
(4) Subsection (3) does not apply if the person does not
manufacture, possess or control the goods for the purpose of supplying the
goods (other than for export).
(5) A person commits an offence if:
(a) the person exports consumer goods of a particular kind; and
(b) supply of the goods would be prohibited by subsection (1).
(6) Subsection (5) does not apply if the Commonwealth Minister has,
by written notice given to the person, approved the export of the goods under
section 118(5).
(7) Subsections (1), (2), (3) and (5) are offences of strict
liability.
Penalty
(8) An offence against subsection (1), (2), (3) or (5) committed by
a body corporate is punishable on conviction by a fine of not more than the
greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(9) An offence against subsection (1), (2), (3) or (5) committed by
a person other than a body corporate is punishable on conviction by a fine of
not more than $500,000.
198 Supplying etc. product related services
covered by a ban
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies product related services
of a particular kind; and
(b) either:
(i) an interim ban on services of that kind is in force in the place
where the supply occurs; or
(ii) a permanent ban on services of that kind is in force.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply product related
services of a particular kind; and
(b) the supply would be prohibited by subsection (1).
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Division 3 -- Recall of consumer goods
199
Compliance with recall orders
(1) A person commits an offence if:
(a) a recall notice for consumer goods is in force; and
(b) the notice requires the person (other than the regulator) to do one
or more things; and
(c) the person refuses or fails to comply with the notice.
(2) A person commits an offence if:
(a) a recall notice for consumer goods is in force; and
(b) the person, in trade or commerce:
(i) if the notice identifies a defect in, or a dangerous characteristic
of, the consumer goods--supplies consumer goods of the kind to which the
notice relates which contain that defect or have that characteristic; or
(ii) in any other case--supplies consumer goods of the kind to which the
notice relates.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
200 Notification by persons who supply consumer goods
outside Australia if there is compulsory recall
(1) A person commits an offence if:
(a) the person is required by section 125(4) to give a copy of a
notice to a responsible Minister; and
(b) the person refuses or fails to give the copy as required by that
section.
Penalty:
(a) if the person is a body corporate--$16,650; or
(b) if the person is not a body corporate--$3,330.
(2) Subsection (1) is an offence of strict liability.
201
Notification requirements for a voluntary recall of consumer goods
(1) A person commits an offence if:
(a) the person is required by section 128(2) to give a notice to
the Commonwealth Minister; and
(b) the person refuses or fails to give the notice as required by that
section.
Penalty:
(a) if the person is a body corporate--$16,650; or
(b) if the person is not a body corporate--$3,330.
(2) A person commits an offence if:
(a) the person is required by section 128(6) to give a copy of a
notice to the Commonwealth Minister; and
(b) the person refuses or fails to give the copy as required by that
section.
Penalty:
(a) if the person is a body corporate--$16,650; or
(b) if the person is not a body corporate--$3,330.
(3) Subsections (1) and (2) are offences of strict liability.
Division 4 -- Consumer goods, or product related services, associated
with death or serious injury or illness
202 Suppliers to report
consumer goods etc. associated with the death or serious injury or illness of
any person
(1) A person commits an offence if:
(a) the person is required by section 131 or 132 to give a notice
to the Commonwealth Minister; and
(b) the person refuses or fails to give the notice as required by that
section.
Penalty:
(a) if the person is a body corporate--$16,650; or
(b) if the person is not a body corporate--$3,330.
(2) Subsection (1) is an offence of strict liability.
Part 4-4 -- Offences relating to information standards
203 Supplying etc. goods that do not comply with information standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies goods of a particular
kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to the
goods.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply goods of a
particular kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to the
goods.
(3) A person commits an offence if:
(a) the person, in or for the purposes of trade or commerce,
manufactures, possesses or has control of goods of a particular kind; and
(b) an information standard for goods of that kind is in force; and
(c) the person has not complied with the standard in relation to the
goods.
(4) Subsection (3) does not apply if the person does not
manufacture, possess or control the goods for the purpose of supplying the
goods.
(5) Subsection (1), (2) or (3) does not apply to goods that are
intended to be used outside Australia.
(6) Unless the contrary is established, it is presumed, for the purposes
of this section, that goods are intended to be used outside Australia if
either of the following is applied to the goods:
(a) a statement that the goods are for export only;
(b) a statement indicating, by the use of words authorised by
regulations made for the purposes of section 136(6)(b) to be used for the
purposes of section 136(6), that the goods are intended to be used
outside Australia.
(7) Without limiting subsection (6), a statement may, for the
purposes of that subsection, be applied to goods by being:
(a) woven in, impressed on, worked into or annexed or affixed to the
goods; or
(b) applied to a covering, label, reel or thing in or with which the
goods are supplied.
(8) Subsections (1), (2) and (3) are offences of strict liability.
Penalty
(9) An offence against subsection (1), (2) or (3) committed by a
body corporate is punishable on conviction by a fine of not more than the
greater of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(10) An offence against subsection (1), (2) or (3) committed by a
person other than a body corporate is punishable on conviction by a fine of
not more than $500,000.
204 Supplying etc. services that do not
comply with information standards
(1) A person commits an offence if:
(a) the person, in trade or commerce, supplies services of a particular
kind; and
(b) an information standard for services of that kind is in force; and
(c) the person has not complied with the standard in relation to the
services.
(2) A person commits an offence if:
(a) the person, in trade or commerce, offers for supply services of a
particular kind; and
(b) an information standard for services of that kind is in force; and
(c) the person has not complied with the standard in relation to the
services.
(3) Subsections (1) and (2) are offences of strict liability.
Penalty
(4) An offence against subsection (1) or (2) committed by a body
corporate is punishable on conviction by a fine of not more than the greater
of the following:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the commission
of the offence--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the body corporate committed, or began committing,
the offence.
(5) An offence against subsection (1) or (2) committed by a person
other than a body corporate is punishable on conviction by a fine of not more
than $500,000.
Part 4-5 -- Offences relating to substantiation notices
205 Compliance with substantiation notices
(1) A person commits an offence if the person:
(a) is given a substantiation notice; and
(b) refuses or fails to comply with it within the substantiation notice
compliance period for the notice.
Penalty:
(a) if the person is a body corporate--$16,500; or
(b) if the person is not a body corporate--$3,300.
(2) Subsection (1) does not apply if:
(a) the person is an individual; and
(b) the person refuses or fails to give particular information or
produce a particular document in compliance with a substantiation notice; and
(c) the information, or production of the document, might tend to
incriminate the individual or to expose the individual to a penalty.
(3) Subsection (1) is an offence of strict liability.
206
False or misleading information etc.
(1) A person commits an offence if the person, in compliance or
purported compliance with a substantiation notice given by the regulator:
(a) gives to the regulator false or misleading information; or
(b) produces to the regulator documents that contain false or misleading
information.
Penalty:
(a) if the person is a body corporate--$27,500; or
(b) if the person is not a body corporate--$5,500.
(2) This section does not apply to:
(a) information that the person could not have known was false or
misleading; or
(b) the production to the regulator of a document containing false or
misleading information if the document is accompanied by a statement of the
person that the information is false or misleading.
(3) Subsection (1) is an offence of strict liability.
Part 4-6 -- Defences
207 Reasonable mistake of
fact
(1) In a prosecution for a contravention of a provision of this Chapter,
it is a defence if the defendant proves that the contravention was caused by a
reasonable mistake of fact, including a mistake of fact caused by reasonable
reliance on information supplied by another person.
(2) However, subsection (1) does not apply in relation to
information relied upon by the defendant that was supplied to the defendant by
another person who was, at the time when the contravention occurred:
(a) an employee or agent of the defendant; or
(b) if the defendant is a body corporate--a director, employee or agent
of the defendant.
(3) If a defence provided by subsection (1) involves an allegation
that a contravention was due to reliance on information supplied by another
person, the defendant is not entitled to rely on that defence unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice giving such information as the defendant then had
that would identify or assist in identifying the other person.
208
Act or default of another person etc.
(1) In a prosecution for a contravention of a provision of this Chapter,
it is a defence if the defendant proves that:
(a) the contravention was due to the act or default of another person,
to an accident or to some other cause beyond the defendant's control; and
(b) the defendant took reasonable precautions and exercised due
diligence to avoid the contravention.
(2) However, subsection (1) does not apply in relation to the act
or default of another person who was, at the time when the contravention
occurred:
(a) an employee or agent of the defendant; or
(b) if the defendant is a body corporate--a director, employee or agent
of the defendant.
(3) If a defence provided by subsection (1) involves an allegation
that a contravention was due to the act or default of another person, the
defendant is not entitled to rely on that defence unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice giving such information as the defendant then had
that would identify or assist in identifying the other person.
209
Publication of advertisements in the ordinary course of business
In a prosecution for a contravention of a provision of this Chapter that was
committed by publication of an advertisement, it is a defence if the defendant
proves that:
(a) the defendant is a person whose business it is to publish or arrange
for the publication of advertisements; and
(b) the defendant received the advertisement for publication in the
ordinary course of business; and
(c) the defendant did not know, and had no reason to suspect, that its
publication would amount to a contravention of such a provision.
210
Supplying goods acquired for the purpose of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter
that was committed by supplying goods in contravention of section 194 or
203, it is a defence if the defendant proves that:
(a) the goods were acquired by the defendant for the purpose of
re-supply; and
(b) the goods were so acquired from a person who carried on in Australia
a business of supplying such goods otherwise than as the agent of a person
outside Australia; and
(c) in the case of a contravention of section 194--the defendant:
(i) did not know, and could not with reasonable diligence have
ascertained, that the goods did not comply with the safety standard to which
the contravention relates; or
(ii) relied in good faith on a representation by the person from whom
the defendant acquired the goods that there was no safety standard for such
goods; and
(d) in the case of a contravention of section 203--the defendant:
(i) did not know, and could not with reasonable diligence have
ascertained, that the defendant had not complied with the information standard
to which the contravention relates; or
(ii) relied in good faith on a representation by the person from whom
the defendant acquired the goods that there was no information standard for
such goods.
Note:
Section 194 is about supply of consumer goods that do not comply with
safety standards, and section 203 is about supply of goods that do not
comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by
subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice identifying the person from whom the defendant
acquired the goods.
211 Supplying services acquired for the purpose
of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter
that was committed by supplying services in contravention of section 195
or 204, it is a defence if the defendant proves that:
(a) the services were acquired by the defendant for the purpose of
re-supply; and
(b) the services were so acquired from a person who carried on in
Australia a business of supplying such services otherwise than as the agent of
a person outside Australia; and
(c) in the case of a contravention of section 195--the defendant:
(i) did not know, and could not with reasonable diligence have
ascertained, that the services did not comply with the safety standard to
which the contravention relates; or
(ii) relied in good faith on a representation by the person from whom
the defendant acquired the services that there was no safety standard for such
services; and
(d) in the case of a contravention of section 204--the defendant:
(i) did not know, and could not with reasonable diligence have
ascertained, that the defendant had not complied with the information standard
to which the contravention relates; or
(ii) relied in good faith on a representation by the person from whom
the defendant acquired the services that there was no information standard for
such services.
Note:
Section 195 is about supply of product related services that do not
comply with safety standards, and section 204 is about supply of services
that do not comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by
subsection (1) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice identifying the person from whom the defendant
acquired the services.
Part 4-7 -- Miscellaneous
212
Prosecutions to be commenced within 3 years
A prosecution for an offence against a provision of this Chapter may be
commenced at any time within 3 years after the commission of the offence.
213 Preference must be given to compensation for victims
If a court considers that:
(a) it is appropriate to impose a fine on a person (the defendant )
under this Chapter in relation to:
(i) a contravention of a provision of this Schedule; or
(ii) an attempt to contravene such a provision; or
(iii) aiding, abetting, counselling or procuring a person to contravene
such a provision; or
(iv) inducing, or attempting to induce, a person, whether by threats or
promises or otherwise, to contravene such a provision; or
(v) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of such a provision; or
(vi) conspiring with others to contravene such a provision; and
(b) it is appropriate to order the defendant to pay compensation to a
person who has suffered loss or damage as result of that contravention or
conduct; and
(c) the defendant does not have sufficient financial resources to pay
both the fine and the compensation;
the court must give preference to making
an order for compensation.
214 Penalties for contraventions of the
same nature etc.
(1) If:
(a) a person is convicted of 2 or more offences constituted by, or
relating to, contraventions of the same provision of this Chapter; and
(b) the contraventions appear to the court:
(i) to have been of the same nature or a substantially similar nature;
and
(ii) to have occurred at or about the same time;
the court must not,
in respect of the offences, impose on the person fines that, in the aggregate,
exceed the maximum fine that would be applicable in respect of one offence by
that person against that provision.
(2) This section applies whether or not the person is also convicted of
an offence or offences constituted by, or relating to, another contravention
or other contraventions of that provision that were of a different nature or
occurred at a different time.
215 Penalties for previous
contraventions of the same nature etc.
(1) If:
(a) a person is convicted of an offence constituted by, or relating to,
a contravention of a provision of this Chapter; and
(b) a fine has, or fines have, previously been imposed on the person by
the court for an offence or offences constituted by, or relating to, another
contravention or other contraventions of the same provision; and
(c) the contravention, or each of the contraventions, mentioned in
paragraph (b) appear to the court:
(i) to have been of the same nature as, or a substantially similar
nature to, the contravention mentioned in paragraph (a); and
(ii) to have occurred at or about the same time as the contravention
mentioned in paragraph (a);
the court must not, in respect of the
offence mentioned in paragraph (a), impose on the person a fine that
exceeds the amount (if any) by which the maximum fine applicable in respect of
that offence is greater than the amount of the fine, or the sum of the amounts
of the fines, referred to in paragraph (b).
(2) This section applies whether or not a fine has, or fines have, also
previously been imposed on the person for an offence or offences constituted
by, or relating to, a contravention or contraventions of that provision that
were of a different nature or occurred at a different time.
216
Granting of injunctions etc.
In proceedings against a person for a contravention of a provision of this
Chapter, the court may:
(a) grant an injunction under Division 2 of Part 5-2 against
the person in relation to:
(i) the conduct that constitutes, or is alleged to constitute, the
contravention; or
(ii) other conduct of that kind; or
(b) make an order under section 246, 247 or 248 in relation to the
contravention.
217 Criminal proceedings not to be brought for
contraventions of Chapter 2 or 3
Criminal proceedings do not lie against a person only because the person:
(a) has contravened a provision of Chapter 2 or 3; or
(b) has attempted to contravene such a provision; or
(c) has aided, abetted, counselled or procured a person to contravene
such a provision; or
(d) has induced, or attempted to induce, a person, whether by threats or
promises or otherwise, to contravene such a provision; or
(e) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention by a person of such a provision; or
(f) has conspired with others to contravene such a provision.
Chapter 5 -- Enforcement and remedies
Part 5-1 -- Enforcement
Division 1 -- Undertakings
218 Regulator may accept
undertakings
(1) The regulator may accept a written undertaking given by a person for
the purposes of this section in connection with a matter in relation to which
the regulator has a power or function under this Schedule.
(2) The person may, with the consent of the regulator, withdraw or vary
the undertaking at any time.
(3) If the regulator considers that the person who gave the undertaking
has breached any of its terms, the regulator may apply to a court for an order
under subsection (4).
(4) If the court is satisfied that the person has breached a term of the
undertaking, the court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth, or to a
State or Territory, an amount up to the amount of any financial benefit that
the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the court considers appropriate directing the person
to compensate any other person who has suffered loss or damage as a result of
the breach;
(d) any other order that the court considers appropriate.
Division 2 -- Substantiation notices
219 Regulator may require
claims to be substantiated etc.
(1) This section applies if a person has, in trade or commerce, made a
claim or representation promoting, or apparently intended to promote:
(a) a supply, or possible supply, of goods or services by the person or
another person; or
(b) a sale or grant, or possible sale or grant, of an interest in land
by the person or another person; or
(c) employment that is to be, or may be, offered by the person or
another person.
(2) The regulator may give the person who made the claim or
representation a written notice that requires the person to do one or more of
the following:
(a) give information and/or produce documents to the regulator that
could be capable of substantiating or supporting the claim or representation;
(b) if the claim or representation relates to a supply, or possible
supply, of goods or services by t he person or another person--give
information and/or produce documents to the regulator that could be capable of
substantiating:
(i)
the quantities in which; and
(ii)
the period for which;
t he person or other person is or will be able to make such a supply
(whether or not the claim or representation relates to those quantities or
that period);
(c) give information and/or produce documents to
the regulator
that are of a kind specified in the notice;
within 21 days after the notice
is given to the person who made the claim or representation.
(3) Any kind of information or documents that the regulator specifies
under subsection (2)(c) must be a kind that the regulator is satisfied is
relevant to:
(a) substantiating or supporting the claim or representation; or
(b) if the claim or representation relates to a supply, or possible
supply, of goods or services by the person or another person--substantiating
the quantities in which, or the period for which, the person or other person
is or will be able to make such a supply.
(4) The notice must:
(a) name the person to whom it is given; and
(b) specify the claim or representation to which it relates; and
(c) explain the effect of sections 220, 221 and 222.
(5) The notice may relate to more than one claim or representation that
the person has made.
(6) This section does not apply to a person who made the claim or
representation if the person:
(a) is an information provider; and
(b) made the claim or representation by publishing it on behalf of
another person in the course of carrying on a business of providing
information; and
(c) does not have a commercial relationship with the other person other
than for the purpose of:
(i) publishing claims or representations promoting, or apparently
intended to promote, the other person's business or other activities; or
(ii) the other person supplying goods or services, or selling or
granting interests in land to the person.
220 Extending periods for
complying with substantiation notices
(1) A person who has been given a substantiation notice may, at any time
within 21 days after the notice was given to the person by the regulator,
apply in writing to the regulator for an extension of the period for complying
with the notice.
(2) The regulator may, by written notice given to the person, extend the
period within which the person must comply with the notice.
221
Compliance with substantiation notices
(1) A person who is given a substantiation notice must comply with it
within the substantiation notice compliance period for the notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) The substantiation notice compliance period for a substantiation
notice is:
(a) the period of 21 days specified in the notice; or
(b) if the period for complying with the notice has been extended under
section 220--the period as so extended;
and includes (if an application
has been made under section 220(1) for an extension of the period for
complying with the notice) the period up until the time when the applicant is
given notice of the regulator's decision on the application.
(3) Despite subsection (1), an individual may refuse or fail to
give particular information or produce a particular document in compliance
with a substantiation notice on the ground that the information or production
of the document might tend to incriminate the individual or to expose the
individual to a penalty.
222 False or misleading information etc.
(1) A person must not, in compliance or purported compliance with a
substantiation notice given by the regulator:
(a) give to the regulator false or misleading information; or
(b) produce to the regulator documents that contain false or misleading
information.
Note: A
pecuniary penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to:
(a) information that the person could not have known was false or
misleading; or
(b) the production to the regulator of a document containing false or
misleading information if the document is accompanied by a statement of the
person that the information is false or misleading.
Division 3 --
Public warning notices
223 Regulator may issue a public warning
notice
(1) The regulator may issue to the public a written notice containing a
warning about the conduct of a person if:
(a) the regulator has reasonable grounds to suspect that the conduct may
constitute a contravention of a provision of Chapter 2, 3 or 4; and
(b) the regulator is satisfied that one or more other persons has
suffered, or is likely to suffer, detriment as a result of the conduct; and
(c) the regulator is satisfied that it is in the public interest to
issue the notice.
(2) Without limiting subsection (1), if:
(a) a person refuses to respond to a substantiation notice given by the
regulator to the person, or fails to respond to the notice before the end of
the substantiation notice compliance period for the notice; and
(b) the regulator is satisfied that it is in the public interest to
issue a notice under this subsection;
the regulator may issue to the public
a written notice containing a warning that the person has refused or failed to
respond to the substantiation notice within that period, and specifying the
matter to which the substantiation notice related.
Part 5-2 --
Remedies
Division 1 -- Pecuniary penalties
224 Pecuniary
penalties
(1) If a court is satisfied that a person:
(a) has contravened any of the following provisions:
(i) a provision of Part 2-2 (which is about unconscionable
conduct);
(ii) a provision of Part 3-1 (which is about unfair practices);
(iii) section 66(2) (which is about display notices);
(iv) a provision (other than section 85) of Division 2 of
Part 3-2 (which is about unsolicited consumer agreements);
(v) a provision (other than section 96(2)) of Division 3 of
Part 3-2 (which is about lay-by agreements);
(va) section 99B(1), 99C, 99D(1), 99E or 99F(2) (which are about
gift cards);
(vi) section 100(1) or (3) or 101(3) or (4) (which are about proof
of transactions and itemised bills);
(vii) section 102(2) or 103(2) (which are about prescribed
requirements for warranties and repairers);
(viii) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1) or
132(1) (which are about safety of consumer goods and product related
services);
(ix) section 136(1), (2) or (3) or 137(1) or (2) (which are about
information standards);
(x) section 221(1) or 222(1) (which are about substantiation
notices); or
(b) has attempted to contravene such a provision; or
(c) has aided, abetted, counselled or procured a person to contravene
such a provision; or
(d) has induced, or attempted to induce, a person, whether by threats or
promises or otherwise, to contravene such a provision; or
(e) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention by a person of such a provision; or
(f) has conspired with others to contravene such a provision;
the
court may order the person to pay to the Commonwealth, State or Territory, as
the case may be, such pecuniary penalty, in respect of each act or omission by
the person to which this section applies, as the court determines to be
appropriate.
(2) In determining the appropriate pecuniary penalty, the court must
have regard to all relevant matters including:
(a) the nature and extent of the act or omission and of any loss or
damage suffered as a result of the act or omission; and
(b) the circumstances in which the act or omission took place; and
(c) whether the person has previously been found by a court in
proceedings under Chapter 4 or this Part to have engaged in any similar
conduct.
(3) The pecuniary penalty payable under subsection (1) is not to
exceed the amount worked out using the following table:
Amount
of pecuniary penalty |
Item | For each act or omission to which this
section applies that relates to ... | the pecuniary penalty is not to exceed
... |
1 | a provision of Part 2-2 | (a) if the person is a body
corporate--the greater of the amounts mentioned in subsection (3A); or
(b) if the person is not a body corporate--$500,000. |
2 | a provision
of Part 3-1 (other than section 47(1)) | (a) if the person is a
body corporate--the greater of the amounts mentioned in subsection (3A);
or (b) if the person is not a body corporate--$500,000. |
3 |
section 47(1) | (a) if the person is a body corporate--$5,000; or (b)
if the person is not a body corporate--$1,000. |
4 | section 66(2)
| (a) if the person is a body corporate--$50,000; or (b) if the person is not
a body corporate--$10,000. |
5 | a provision of Division 2 of
Part 3-2 (other than section 85) | (a) if the person is a body
corporate--$50,000; or (b) if the person is not a body corporate--$10,000.
|
6 | a provision of Division 3 of Part 3-2 (other than
section 96(2)) | (a) if the person is a body corporate--$30,000; or
(b) if the person is not a body corporate--$6,000. |
6A |
section 99B(1), 99C, 99D(1), 99E or 99F(2) | (a) if the person is a
body corporate--$30,000; or (b) if the person is not a body
corporate--$6,000. |
7 | section 100(1) or (3) or 101(3) or (4) |
(a) if the person is a body corporate--$15,000; or (b) if the person is not
a body corporate--$3,000. |
8 | section 102(2) or 103(2) | (a) if
the person is a body corporate--$50,000; or (b) if the person is not a body
corporate--$10,000. |
9 | section 106(1), (2), (3) or (5), 107(1)
or (2), 118(1), (2), (3) or (5) or 119(1) or (2) | (a) if the person is a
body corporate--the greater of the amounts mentioned in subsection (3A);
or (b) if the person is not a body corporate--$500,000. |
10 |
section 125(4) | (a) if the person is a body corporate--$16,500; or
(b) if the person is not a body corporate--$3,300. |
11 |
section 127(1) or (2) | (a) if the person is a body corporate--the
greater of the amounts mentioned in subsection (3A); or (b) if the
person is not a body corporate--$500,000. |
12 | section 128(2) or
(6), 131(1) or 132(1) | (a) if the person is a body corporate--$16,500; or
(b) if the person is not a body corporate--$3,300. |
13 |
section 136(1), (2) or (3) or 137(1) or (2) | (a) if the person is a
body corporate--the greater of the amounts mentioned in subsection (3A);
or (b) if the person is not a body corporate--$500,000. |
14 |
section 221(1) | (a) if the person is a body corporate--$16,500; or
(b) if the person is not a body corporate--$3,300. |
15 |
section 222(1) | (a) if the person is a body corporate--$27,500; or
(b) if the person is not a body corporate--$5,500. |
(3A) For the
purposes of items 1, 2, 9, 11 and 13 of the table in subsection (3),
the amounts are as follows:
(a) $10,000,000;
(b) if the court can determine the value of the benefit that the body
corporate, and any body corporate related to the body corporate, have obtained
directly or indirectly and that is reasonably attributable to the act or
omission--3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit--10% of the
annual turnover of the body corporate during the 12-month period ending at the
end of the month in which the act or omission occurred or started to occur.
(4) If conduct constitutes a contravention of 2 or more provisions
referred to in subsection (1)(a):
(a) a proceeding may be instituted under this Schedule against a person
in relation to the contravention of any one or more of the provisions; but
(b) a person is not liable to more than one pecuniary penalty under this
section in respect of the same conduct.
225 Pecuniary penalties and
offences
(1) A court must not make an order under section 224 against a
person in relation to either of the following matters (a consumer protection
breach ):
(a) a contravention of a provision referred to in
section 224(1)(a);
(b) conduct referred to in section 224(1)(b), (c), (d), (e) or (f)
that relates to a contravention of such a provision;
if the person has been
convicted of an offence constituted by conduct that is substantially the same
as the conduct constituting the consumer protection breach.
(2) Proceedings for an order under section 224 against a person in
relation to a consumer protection breach are stayed if:
(a) criminal proceedings are started or have already been started
against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the consumer protection breach.
The
proceedings for the order may be resumed if the person is not convicted of the
offence. Otherwise, the proceedings are dismissed.
(3) Criminal proceedings may be started against a person for conduct
that is substantially the same as conduct constituting a consumer protection
breach regardless of whether an order under section 224 has been made
against the person in respect of the breach.
(4) Evidence of information given, or evidence of the production of
documents, by an individual is not admissible in criminal proceedings against
the individual if:
(a) the individual previously gave the evidence or produced the
documents in proceedings for an order under section 224 against the
individual in relation to a consumer protection breach (whether or not the
order was made); and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was claimed to constitute the consumer protection
breach.
However, this does not apply to a criminal proceeding in respect of
the falsity of the evidence given by the individual in the proceedings for the
order.
226 Defence
If, in proceedings under section 224 against a person other than a body
corporate, it appears to a court that the person has, or may have:
(a) engaged in conduct in contravention of a provision referred to in
subsection (1)(a) of that section; or
(b) engaged in conduct referred to in subsection (1)(b), (c), (d),
(e) or (f) of that section that relates to a contravention of such a
provision;
but that the person acted honestly and reasonably and, having
regard to all the circumstances of the case, ought fairly to be excused, the
court may relieve the person either wholly or partly from liability to a
pecuniary penalty under that section.
227 Preference must be given
to compensation for victims
If a court considers that:
(a) it is appropriate to order a person (the defendant ) to pay a
pecuniary penalty under section 224 in relation to:
(i) a contravention of a provision referred to in subsection (1)(a)
of that section; or
(ii) conduct referred to in subsection (1)(b), (c), (d), (e) or (f)
of that section that relates to a contravention such a provision; and
(b) it is appropriate to order the defendant to pay compensation to a
person who has suffered loss or damage as result of that contravention or
conduct; and
(c) the defendant does not have sufficient financial resources to pay
both the pecuniary penalty and the compensation;
the court must give
preference to making an order for compensation.
228 Civil action for
recovery of pecuniary penalties
(1) The regulator may institute a proceeding in a court for the recovery
on behalf of the Commonwealth, a State or a Territory, as the case may be, of
a pecuniary penalty referred to in section 224.
(2) A proceeding under subsection (1) may be commenced at any time
within 6 years after the contravention or conduct.
229
Indemnification of officers
(1) A body corporate (the first body ), or a body corporate related to
the first body, commits an offence if it indemnifies a person (whether by
agreement or by making a payment and whether directly or through an interposed
entity) against either of the following liabilities incurred as an officer
(within the meaning of the Corporations Act 2001 ) of the first body:
(a) a liability to pay a pecuniary penalty under section 224;
(b) legal costs incurred in defending or resisting proceedings in which
the person is found to have such a liability.
Penalty: $2,750.
(2) For the purposes of subsection (1), the outcome of proceedings
is the outcome of the proceedings and any appeal in relation to the
proceedings.
230 Certain indemnities not authorised and certain
documents void
(1) Section 229 does not authorise anything that would otherwise be
unlawful.
(2) Anything that purports to indemnify a person against a liability is
void to the extent that it contravenes section 229.
Division 2 --
Injunctions
232 Injunctions
(1) A court may grant an injunction, in such terms as the court
considers appropriate, if the court is satisfied that a person has engaged, or
is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Chapter 2, 3 or 4; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene
such a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision.
(2) The court may grant the injunction on application by the regulator
or any other person.
(3) Subsection (1) applies in relation to conduct constituted by
applying or relying on, or purporting to apply or rely on, a term of a
contract that has been declared under section 250 to be an unfair term as
if the conduct were a contravention of a provision of Chapter 2.
(4) The power of the court to grant an injunction under
subsection (1) restraining a person from engaging in conduct may be
exercised:
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in conduct of a kind referred to in
that subsection; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent danger of substantial damage to
any other person if the person engages in conduct of that kind.
(5) Without limiting subsection (1), the court may grant an
injunction under that subsection restraining a person from carrying on a
business or supplying goods or services (whether or not as part of, or
incidental to, the carrying on of another business):
(a) for a specified period; or
(b) except on specified terms and conditions.
(6) Without limiting subsection (1), the court may grant an
injunction under that subsection requiring a person to do any of the
following:
(a) refund money;
(b) transfer property;
(c) honour a promise;
(d) destroy or dispose of goods.
(7) The power of the court to grant an injunction under
subsection (1) requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or
thing; and
(b) whether or not the person has previously refused or failed to do
that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any other person if the person refuses or fails to do that act or thing.
233
Consent injunctions
If an application is made under section 232, the court may, if it
considers that it is appropriate to do so, grant an injunction under this
section by consent of all the parties to the proceedings, whether or not the
court is satisfied as required by section 232(1).
234 Interim
injunctions
(1) If an application is made under section 232, the court may, if
it considers it is desirable to do so, grant an interim injunction under this
subsection pending the determination of the application.
(2) If a responsible Minister or the regulator made the application
under section 232, the court must not require the applicant or any other
person to give any undertakings as to damages as a condition of granting the
interim injunction.
(3) If:
(a) in a case to which subsection (2) does not apply the court
would, but for this subsection, require a person to give an undertaking as to
damages or costs; and
(b) a responsible Minister gives the undertaking;
the court must
accept the undertaking by the responsible Minister and must not require a
further undertaking from any other person.
235 Variation and
discharge of injunctions
A court may vary or discharge an injunction (including an interim injunction)
that it has granted under this Division.
Division 3 -- Damages
236
Actions for damages
(1) If:
(a) a person (the claimant ) suffers loss or damage because of the
conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the
claimant may recover the amount of the loss or damage by action against that
other person, or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time
within 6 years after the day on which the cause of action that relates to the
conduct accrued.
Division 4 -- Compensation orders etc. for injured
persons and orders for non-party consumers
Subdivision A--Compensation
orders etc. for injured persons
237 Compensation orders etc. on
application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person ) who has suffered,
or is likely to suffer, loss or damage because of the conduct of another
person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3
or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely
on, a term of a contract that has been declared under section 250 to be
an unfair term; or
(b) on the application of the regulator made on behalf of one or more
such injured persons;
make such order or orders as the court thinks
appropriate against the person who engaged in the conduct, or a person
involved in that conduct.
Note 1: For
applications for an order or orders under this subsection, see
section 242.
Note 2: The orders
that the court may make include all or any of the orders set out in
section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole
or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time
within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies--the cause of action that
relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies--the declaration referred to
in that subsection is made.
238 Compensation orders etc. arising out
of other proceedings
(1) If a court finds, in a proceeding instituted under a provision of
Chapter 4 or this Chapter (other than this section), that a person (the
injured person ) who is a party to the proceeding has suffered, or is likely
to suffer, loss or damage because of the conduct of another person that:
(a) was engaged in a contravention of a provision of Chapter 2, 3
or 4; or
(b) constitutes applying or relying on, or purporting to apply or rely
on, a term of a contract that has been declared under section 250 to be
an unfair term;
the court may make such order or orders as it thinks
appropriate against the person who engaged in the conduct, or a person
involved in that conduct.
Note: The orders that
the court may make include all or any of the orders set out in
section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person in whole or in part for the loss or
damage; or
(b) prevent or reduce the loss or damage.
Subdivision B--Orders for
non-party consumers
239 Orders to redress etc. loss or damage
suffered by non-party consumers
(1) If:
(a) a person:
(i) engaged in conduct (the contravening conduct ) in contravention of a
provision of Chapter 2, Part 3-1, Division 2, 3 or 4 of
Part 3-2 or Chapter 4; or
(ii) is a party to a contract who is advantaged by a term (the declared
term ) of the contract in relation to which a court has made a declaration
under section 250; and
(b) the contravening conduct or declared term caused, or is likely to
cause, a class of persons to suffer loss or damage; and
(c) the class includes persons who are non-party consumers in relation
to the contravening conduct or declared term;
a court may, on the
application of the regulator, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person referred to in
subsection (2) of this section.
Note
1: For applications for an order or orders
under this subsection, see section 242.
Note
2: The orders that the court may make
include all or any of the orders set out in section 243.
(2) An order under subsection (1) may be made against:
(a) if subsection (1)(a)(i) applies--the person who engaged in the
contravening conduct, or a person involved in that conduct; or
(b) if subsection (1)(a)(ii) applies--a party to the contract who
is advantaged by the declared term.
(3) The order must be an order that the court considers will:
(a) redress, in whole or in part, the loss or damage suffered by the
non-party consumers in relation to the contravening conduct or declared term;
or
(b) prevent or reduce the loss or damage suffered, or likely to be
suffered, by the non-party consumers in relation to the contravening conduct
or declared term.
(4) An application under subsection (1) may be made at any time
within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies--the cause of action that
relates to the contravening conduct accrued; or
(b) if subsection (1)(a)(ii) applies--the declaration is made.
240 Determining whether to make a redress order etc. for non-party
consumers
(1) In determining whether to make an order under section 239(1)
against a person referred to in section 239(2)(a), the court may have
regard to the conduct of the person, and of the non-party consumers in
relation to the contravening conduct, since the contravention occurred.
(2) In determining whether to make an order under section 239(1)
against a person referred to in section 239(2)(b), the court may have
regard to the conduct of the person, and of the non-party consumers in
relation to the declared term, since the declaration was made.
(3) In determining whether to make an order under section 239(1),
the court need not make a finding about either of the following matters:
(a) which persons are non-party consumers in relation to the
contravening conduct or declared term;
(b) the nature of the loss or damage suffered, or likely to be suffered,
by such persons.
241 When a non-party consumer is bound by a redress
order etc.
(1) A non-party consumer is bound by an order made under
section 239(1) against a person if:
(a) the loss or damage suffered, or likely to be suffered, by the
non-party consumer in relation to the contravening conduct, or the declared
term, to which the order relates has been redressed, prevented or reduced in
accordance with the order; and
(b) the non-party consumer has accepted the redress, prevention or
reduction.
(2) Any other order made under section 239(1) that relates to that
loss or damage has no effect in relation to the non-party consumer.
(3) Despite any other provision of:
(a) this Schedule; or
(b) any other law of the Commonwealth, or a State or a Territory;
no
claim, action or demand may be made or taken against the person by the
non-party consumer in relation to that loss or damage.
Subdivision
C--Miscellaneous
242 Applications for orders
(1) An application may be made under section 237(1) or 239(1) even
if an enforcement proceeding in relation to the conduct, or the term of a
contract, referred to in that subsection has not been instituted.
(2) The regulator must not make an application under
section 237(1)(b) on behalf of one or more persons unless those persons
have consented in writing to the making of the application.
243
Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a
court may make under any of those sections against a person (the respondent )
include all or any of the following:
(a) an order declaring the whole or any part of a contract made between
the respondent and a person (the injured person ) who suffered, or is likely
to suffer, the loss or damage referred to in that section, or of a collateral
arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks fit--to have been void ab initio or void at all
times on and after such date as is specified in the order (which may be a date
that is before the date on which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner as is
specified in the order; and
(ii) if the court thinks fit--declaring the contract or arrangement to
have had effect as so varied on and after such date as is specified in the
order (which may be a date that is before the date on which the order is
made);
(c) an order refusing to enforce any or all of the provisions of such a
contract or arrangement;
(d) an order directing the respondent to refund money or return property
to the injured person;
(e) except if the order is to be made under section 239(1)--an
order directing the respondent to pay the injured person the amount of the
loss or damage;
(f) an order directing the respondent, at his or her own expense, to
repair, or provide parts for, goods that had been supplied by the respondent
to the injured person;
(g) an order directing the respondent, at his or her own expense, to
supply specified services to the injured person;
(h) an order, in relation to an instrument creating or transferring an
interest in land, directing the respondent to execute an instrument that:
(i) varies, or has the effect of varying, the first mentioned
instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating
or otherwise affecting, the operation or effect of the first mentioned
instrument.
244 Power of a court to make orders
A court may make an order under Subdivision A or B of this Division whether or
not the court:
(a) grants an injunction under Division 2 of this Part; or
(b) makes an order under section 236, 246, 247 or 248.
245
Interaction with other provisions
Subdivisions A and B of this Division do not limit the generality of
Division 2 of this Part.
Division 5 -- Other remedies
246
Non-punitive orders
(1) A court may, on application of the regulator, make one or more of
the orders mentioned in subsection (2) in relation to a person who has
engaged in conduct that:
(a) contravenes a provision of Chapter 2, 3 or 4; or
(b) constitutes an involvement in a contravention of such a provision.
(2) The court may make the following orders in relation to the person
who has engaged in the conduct:
(a) an order directing the person to perform a service that is specified
in the order, and that relates to the conduct, for the benefit of the
community or a section of the community;
(aa) an order requiring the person, at the person's expense, to engage:
(i) another person specified in the order; or
(ii) another person in a class of persons specified in the order;
to perform a service that is specified in the order and that relates to the
conduct, for the benefit of the community or a section of the community;
(b) an order for the purpose of ensuring that the person does not engage
in the conduct, similar conduct, or related conduct, during the period of the
order (which must not be longer than 3 years) including:
(i) an order directing the person to establish a compliance program for
employees or other persons involved in the person's business, being a program
designed to ensure their awareness of the responsibilities and obligations in
relation to such conduct; and
(ii) an order directing the person to establish an education and
training program for employees or other persons involved in the person's
business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to such conduct; and
(iii) an order directing the person to revise the internal operations of
the person's business which led to the person engaging in such conduct;
(c) an order requiring the person to disclose, in the way and to the
persons specified in the order, such information as is so specified, being
information that the person has possession of or access to;
(d) an order requiring the person to publish, at the person's expense
and in the way specified in the order, an advertisement in the terms specified
in, or determined in accordance with, the order.
Note: The following are
examples of orders that the court may make under subsection (2)(a):
(a) an order requiring a person who has made false
representations to make available a training video which explains advertising
obligations under this Schedule;
(b) an order requiring a
person who has engaged in misleading or deceptive conduct in relation to a
product to carry out a community awareness program to address the needs of
consumers when purchasing the product.
(2A) An order
under subsection (2)(aa) is not enforceable against a person mentioned in
subsections (2)(aa)(i) and (ii).
(3) This section does not limit a court's powers under any other
provision of this Schedule.
247 Adverse publicity orders
(1) A court may, on application of the regulator, make an adverse
publicity order in relation to a person who:
(a) has contravened a provision of Part 2-2 or Chapter 3; or
(b) has committed an offence against Chapter 4.
(2) An adverse publicity order in relation to a person is an order that
requires the person:
(a) to disclose, in the way and to the persons specified in the order,
such information as is so specified, being information that the person has
possession of or access to; and
(b) to publish, at the person's expense and in the way specified in the
order, an advertisement in the terms specified in, or determined in accordance
with, the order.
(3) This section does not limit a court's powers under any other
provision of this Schedule.
248 Order disqualifying a person from
managing corporations
(1) A court may, on application of the regulator, make an order
disqualifying a person from managing corporations for a period that the court
considers appropriate if:
(a) the court is satisfied that the person has contravened, has
attempted to contravene or has been involved in a contravention of any of the
following provisions:
(i) a provision of Part 2-2 (which is about unconscionable
conduct);
(ii) a provision of Part 3-1 (which is about unfair practices);
(iii) a provision (other than section 85) of Division 2 of
Part 3-2 (which is about unsolicited consumer agreements);
(iv) section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2),
(3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1) or
132(1) (which are about safety of consumer goods and product related
services);
(v) section 136(1), (2) or (3) or 137(1) or (2) (which are about
information standards);
(vi) a provision of Chapter 4 (which is about offences); and
(b) the court is satisfied that the disqualification is justified.
Note: Section 206EA
of the Corporations Act 2001 provides that a person is disqualified from
managing corporations if a court order is in force under this section. That
Act contains various consequences for persons so disqualified.
(2) In determining under subsection (1) whether the
disqualification is justified, the court may have regard to:
(a) the person's conduct in relation to the management, business or
property of any corporation; and
(b) any other matters that the court considers appropriate.
(3) If the court makes an order under subsection (1), the regulator
must:
(a) notify ASIC; and
(b) give ASIC a copy of any such order.
Note: ASIC must keep a
register of persons who have been disqualified from managing corporations: see
section 1274AA of the Corporations Act 2001 .
(4) For the purposes of this Schedule (other than this section or
section 249), an order under this section is not a penalty.
249
Privilege against exposure to penalty or forfeiture--disqualification from
managing corporations
(1) In a civil or criminal proceeding under, or arising out of, this
Schedule, a person is not entitled to refuse or fail to comply with a
requirement:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information,
production of the document or other thing, or doing that other act, as the
case may be, might tend to expose the person to a penalty (including
forfeiture) by way of an order under section 248.
(2) Subsection (1) applies whether or not the person is a defendant
in the proceeding or in any other proceeding.
(3) A person is not entitled to refuse or fail to comply with a
requirement under this Schedule:
(a) to answer a question or give information; or
(b) to produce a document or any other thing; or
(c) to do any other act;
on the ground that the answer or information,
production of the document or other thing, or doing that other act, as the
case may be, might tend to expose the person to a penalty (including
forfeiture) by way of an order under section 248.
250
Declarations relating to consumer contracts and small business contracts
(1) The Court may declare that a term of a consumer contract is an
unfair term, on application by:
(a) a party to the contract; or
(b) the regulator.
(2) The Court may declare that a term of a small business contract is an
unfair term, on application by:
(a) a party to the contract, if the party was a business of the kind
referred to in paragraph 23(4)(b) at the time the contract was entered
into; or
(b) the regulator.
(3) Subsections (1) and (2) do not apply unless the contract is a
standard form contract.
(4) Subsections (1) and (2) do not apply if Part 2-3 does not
apply to the contract.
(5) Subsections (1) and (2) do not limit any other power of the
court to make declarations.
Division 6 -- Defences
251
Publication of advertisement in the ordinary course of business
(1) This section applies to a proceeding under this Part in
relation to a contravention of a provision of Part 2-1 or 2-2 or
Chapter 3 if the contravention was committed by the publication of an
advertisement.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the defendant is a person whose business it is to publish or arrange
for the publication of advertisements; and
(b) the defendant received the advertisement for publication in the
ordinary course of business; and
(c) the defendant did not know, and had no reason to suspect, that its
publication would amount to a contravention of such a provision.
252
Supplying consumer goods for the purpose of re-supply
(1) This section applies to a proceeding under this Part in
relation to a contravention of a provision of Part 2-1 or 2-2 or
Chapter 3 committed by:
(a) the supplying of consumer goods that did not comply with a safety
standard for such goods; or
(b) the supplying of consumer goods by a supplier who did not comply
with an information standard for such goods.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the consumer goods were acquired by the defendant for the purpose of
re-supply; and
(b) the consumer goods were so acquired from a person who carried on in
Australia a business of supplying such goods otherwise than as the agent of a
person outside Australia; and
(c) either:
(i) the defendant did not know, and could not with reasonable diligence
have ascertained, that the consumer goods did not comply with that safety
standard, or that the defendant had not complied with that information
standard, as the case may be; or
(ii) the defendant relied in good faith on a representation by the
person from whom the defendant acquired the goods that there was no safety
standard or information standard, as the case may be, for such consumer goods.
(3) A defendant is not entitled to rely on the defence provided by
subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice identifying the person from whom the defendant
acquired the consumer goods.
253 Supplying product related services
for the purpose of re-supply
(1) This section applies to a proceeding under this Part in
relation to a contravention of a provision of Part 2-1 or 2-2 or
Chapter 3 committed by:
(a) the supplying of product related services that did not comply with a
safety standard for such services; or
(b) the supplying of product related services by a supplier who did not
comply with an information standard for such services.
(2) In the proceeding, it is a defence if the defendant proves that:
(a) the product related services were acquired by the defendant for the
purpose of re-supply; and
(b) the product related services were so acquired from a person who
carried on in Australia a business of supplying such services otherwise than
as the agent of a person outside Australia; and
(c) either:
(i) the defendant did not know, and could not with reasonable diligence
have ascertained, that the product related services did not comply with that
safety standard, or that the defendant had not complied with that information
standard, as the case may be; or
(ii) the defendant relied in good faith on a representation by the
person from whom the defendant acquired the goods that there was no safety
standard or information standard, as the case may be, for such product related
services.
(3) A defendant is not entitled to rely on the defence provided by
subsection (2) unless:
(a) the court gives leave; or
(b) the defendant has, not later than 7 days before the day on which the
hearing of the proceeding commences, served on the person who instituted the
proceeding a written notice identifying the person from whom the defendant
acquired the product related services.
Part 5-3 -- Country of origin
representations
254 Overview
This Part provides that certain country of origin representations made about
goods do not contravene:
(a) section 18 (which deals with misleading or deceptive conduct);
or
(b) section 29(1)(a) or (k) or 151(1)(a) or (k) (which deal with
false or misleading representations).
255 Country of origin
representations do not contravene certain provisions
(1) A person does not contravene section 18, 29(1)(a) or (k) or
151(1)(a) or (k) only by making a representation of a kind referred to in an
item in the first column of this table, if the requirements of the
corresponding item in the second column are met.
Country of
origin representations |
Item | Representation | Requirements to be
met |
1 | A representation that goods were grown in a particular
country | (a) each significant ingredient or significant component of the
goods was grown in that country; and (b) all, or virtually all, processes
involved in the production or manufacture of the goods happened in that
country. |
2 | A representation that goods are the produce of a
particular country | (a) the country was the country of origin of each
significant ingredient or significant component of the goods; and (b) all,
or virtually all, processes involved in the production or manufacture of the
goods happened in that country. |
3 | A representation that goods were
made or manufactured in, or otherwise originate in, a particular country |
(a) the goods were last substantially transformed in that country; and (b)
the representation is not a representation to which item 1 or 2 of this
table applies. |
4 | A representation in the form of a mark specified in
an information standard relating to country of origin labelling of goods |
the requirements under the information standard relating to the use of that
mark. |
(2) Goods were substantially transformed in a country if:
(a) the goods met, in relation to that country, the requirements of
item 1 or 2 in the second column of the table in subsection (1); or
(b) as a result of one or more processes undertaken in that country, the
goods are fundamentally different in identity, nature or essential character
from all of their ingredients or components that were imported into that
country.
(3) Without limiting subsection (2), the regulations:
(a) may prescribe (in relation to particular classes of goods or
otherwise) processes or combinations of processes that, for the purposes of
that subsection, do not have the result described in subsection (2)(b);
and
(b) may include examples (in relation to particular classes of goods or
otherwise) of processes or combinations of processes that, for the purposes of
that subsection, have the result described in subsection (2)(b).
(5) Item 2 of the table in subsection (1) applies to a
representation that goods are the produce of a particular country whether the
representation uses the words "product of", "produce of" or any other
grammatical variation of the word "produce".
(7) Goods, or ingredients or components of goods, are grown in a country
if they:
(a) are materially increased in size or materially altered in substance
in that country by natural development; or
(b) germinated or otherwise arose in, or issued in, that country; or
(c) are harvested, extracted or otherwise derived from an organism that
has been materially increased in size, or materially altered in substance, in
that country by natural development.
(8) For the purposes of item 1 of the table in subsection (1)
in relation to particular goods, packaging materials are not treated as
ingredients or components of the goods.
(9) For the purposes of item 1 of the table in subsection (1)
in relation to an ingredient or component, water added to the ingredient or
component is treated as having the same origin as the ingredient or component,
regardless of its actual origin, if:
(a) the ingredient or component has been dried or concentrated by the
evaporation of water; and
(b) the added water returns the water content of the ingredient or
component to no more than its natural level.
258 Proceedings
relating to false, misleading or deceptive conduct or representations
If:
(a) proceedings are brought against a person in respect of
section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and
(b) the person seeks to rely on a provision of this Part, or of a
regulation made for the purposes of a provision of this Part, in the
proceedings;
the person bears an evidential burden in relation to the
matters set out in the provision on which the person seeks to rely.
Part 5-4 -- Remedies relating to guarantees
Division 1 -- Action
against suppliers
Subdivision A--Action against suppliers of goods
259
Action against suppliers of goods
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, goods to
the consumer; and
(b) a guarantee that applies to the supply under Subdivision A of
Division 1 of Part 3-2 (other than sections 58 and 59(1)) is
not complied with.
(2) If the failure to comply with the guarantee can be remedied and is
not a major failure:
(a) the consumer may require the supplier to remedy the failure within a
reasonable time; or
(b) if such a requirement is made of the supplier but the supplier
refuses or fails to comply with the requirement, or fails to comply with the
requirement within a reasonable time--the consumer may:
(i) otherwise have the failure remedied and, by action against the
supplier, recover all reasonable costs incurred by the consumer in having the
failure so remedied; or
(ii) subject to section 262, notify the supplier that the consumer
rejects the goods and of the ground or grounds for the rejection.
(3) If the failure to comply with the guarantee cannot be remedied or is
a major failure, the consumer may:
(a) subject to section 262, notify the supplier that the consumer
rejects the goods and of the ground or grounds for the rejection; or
(b) by action against the supplier, recover compensation for any
reduction in the value of the goods below the price paid or payable by the
consumer for the goods.
(4) The consumer may, by action against the supplier, recover damages
for any loss or damage suffered by the consumer because of the failure to
comply with the guarantee if it was reasonably foreseeable that the consumer
would suffer such loss or damage as a result of such a failure.
(5) Subsection (4) does not apply if the failure to comply with the
guarantee occurred only because of a cause independent of human control that
occurred after the goods left the control of the supplier.
(6) To avoid doubt, subsection (4) applies in addition to
subsections (2) and (3).
(7) The consumer may take action under this section whether or not the
goods are in their original packaging.
260 When a failure to comply
with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 259(1)(b)
that applies to a supply of goods is a major failure if:
(a) the goods would not have been acquired by a reasonable consumer
fully acquainted with the nature and extent of the failure; or
(b) the goods depart in one or more significant respects:
(i) if they were supplied by description--from that description; or
(ii) if they were supplied by reference to a sample or demonstration
model--from that sample or demonstration model; or
(c) the goods are substantially unfit for a purpose for which goods of
the same kind are commonly supplied and they cannot, easily and within a
reasonable time, be remedied to make them fit for such a purpose; or
(d) the goods are unfit for a disclosed purpose that was made known to:
(i) the supplier of the goods; or
(ii) a person by whom any prior negotiations or arrangements in relation
to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them
fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
261 How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a consumer requires a supplier of goods to
remedy a failure to comply with a guarantee referred to in
section 259(1)(b), the supplier may comply with the requirement:
(a) if the failure relates to title--by curing any defect in title; or
(b) if the failure does not relate to title--by repairing the goods; or
(c) by replacing the goods with goods of an identical type; or
(d) by refunding:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration
provided by the consumer for the goods.
262 When consumers are not
entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a
supplier of goods that the consumer rejects the goods if:
(a) the rejection period for the goods has ended; or
(b) the goods have been lost, destroyed or disposed of by the consumer;
or
(c) the goods were damaged after being delivered to the consumer for
reasons not related to their state or condition at the time of supply; or
(d) the goods have been attached to, or incorporated in, any real or
personal property and they cannot be detached or isolated without damaging
them.
(2) The rejection period for goods is the period from the time of the
supply of the goods to the consumer within which it would be reasonable to
expect the relevant failure to comply with a guarantee referred to in
section 259(1)(b) to become apparent having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be used;
and
(d) the amount of use to which it is reasonable for them to be put
before such a failure becomes apparent.
263 Consequences of
rejecting goods
(1) This section applies if, under section 259, a consumer notifies
a supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the supplier unless:
(a) the goods have already been returned to, or retrieved by, the
supplier; or
(b) the goods cannot be returned, removed or transported without
significant cost to the consumer because of:
(i) the nature of the failure to comply with the guarantee to which the
rejection relates; or
(ii) the size or height, or method of attachment, of the goods.
(3) If subsection (2)(b) applies, the supplier must, within a
reasonable time, collect the goods at the supplier's expense.
(4) The supplier must, in accordance with an election made by the
consumer:
(a) refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration
provided by the consumer for the goods; or
(b) replace the rejected goods with goods of the same type, and of
similar value, if such goods are reasonably available to the supplier.
(5) The supplier cannot satisfy subsection (4)(a) by permitting the
consumer to acquire goods from the supplier.
(6) If the property in the rejected goods had passed to the consumer
before the rejection was notified, the property in those goods revests in the
supplier on the notification of the rejection.
264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
(a) the replacement goods are taken, for the purposes of Division 1
of Part 3-2 and this Part, to be supplied by the supplier; and
(b) the provisions of Division 1 of Part 3-2 and this Part
apply in relation to the replacement goods.
265 Termination of
contracts for the supply of services that are connected with rejected goods
(1) If:
(a) under section 259, a consumer notifies a supplier of goods that
the consumer rejects the goods; and
(b) the supplier is required under section 263(4)(a) to give the
consumer a refund; and
(c) a person supplies, in trade or commerce, services to the consumer
that are connected with the rejected goods;
the consumer may terminate the
contract for the supply of the services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the
services (whether by words or by conduct indicating the consumer's intention
to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier
of the services--at the time the consumer indicates, by means which are
reasonable in the circumstances, his or her intention to terminate the
contract.
(3) The consumer is entitled to recover, by action against the supplier
of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration
provided by the consumer for the services;
to the extent that the consumer
has not already consumed the services at the time the termination takes
effect.
266 Rights of gift recipients
If a consumer acquires goods from a supplier and gives them to another person
as a gift, the other person may, subject to any defence which would be
available to the supplier against the consumer:
(a) exercise any rights or remedies under this Subdivision which would
be available to the other person if he or she had acquired the goods from the
supplier; and
(b) any reference in this Subdivision to a consumer includes a reference
to the other person accordingly.
Subdivision B--Action against suppliers of
services
267 Action against suppliers of services
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, services to
the consumer; and
(b) a guarantee that applies to the supply under Subdivision B of
Division 1 of Part 3-2 is not complied with; and
(c) unless the guarantee is the guarantee under section 60--the
failure to comply with the guarantee did not occur only because of:
(i) an act, default or omission of, or a representation made by, any
person other than the supplier, or an agent or employee of the supplier; or
(ii) a cause independent of human control that occurred after the
services were supplied.
(2) If the failure to comply with the guarantee can be remedied and is
not a major failure:
(a) the consumer may require the supplier to remedy the failure within a
reasonable time; or
(b) if such a requirement is made of the supplier but the supplier
refuses or fails to comply with the requirement, or fails to comply with the
requirement within a reasonable time--the consumer may:
(i) otherwise have the failure remedied and, by action against the
supplier, recover all reasonable costs incurred by the consumer in having the
failure so remedied; or
(ii) terminate the contract for the supply of the services.
(3) If the failure to comply with the guarantee cannot be remedied or is
a major failure, the consumer may:
(a) terminate the contract for the supply of the services; or
(b) by action against the supplier, recover compensation for any
reduction in the value of the services below the price paid or payable by the
consumer for the services.
(4) The consumer may, by action against the supplier, recover damages
for any loss or damage suffered by the consumer because of the failure to
comply with the guarantee if it was reasonably foreseeable that the consumer
would suffer such loss or damage as a result of such a failure.
(5) To avoid doubt, subsection (4) applies in addition to
subsections (2) and (3).
268 When a failure to comply with a
guarantee is a major failure
A failure to comply with a guarantee referred to in section 267(1)(b)
that applies to a supply of services is a major failure if:
(a) the services would not have been acquired by a reasonable consumer
fully acquainted with the nature and extent of the failure; or
(b) the services are substantially unfit for a purpose for which
services of the same kind are commonly supplied and they cannot, easily and
within a reasonable time, be remedied to make them fit for such a purpose; or
(c) both of the following apply:
(i) the services, and any product resulting from the services, are unfit
for a particular purpose for which the services were acquired by the consumer
that was made known to the supplier of the services;
(ii) the services, and any of those products, cannot, easily and within
a reasonable time, be remedied to make them fit for such a purpose; or
(d) both of the following apply:
(i) the services, and any product resulting from the services, are not
of such a nature, or quality, state or condition, that they might reasonably
be expected to achieve a result desired by the consumer that was made known to
the supplier;
(ii) the services, and any of those products, cannot, easily and within
a reasonable time, be remedied to achieve such a result; or
(e) the supply of the services creates an unsafe situation.
269
Termination of contracts for the supply of services
(1) This section applies if, under section 267, a consumer
terminates a contract for the supply of services.
(2) The termination takes effect:
(a) at the time the termination is made known to the supplier of the
services (whether by words or by conduct indicating the consumer's intention
to terminate the contract); or
(b) if it is not reasonably practicable to communicate with the supplier
of the services--at the time the consumer indicates, by means which are
reasonable in the circumstances, his or her intention to terminate the
contract.
(3) The consumer is entitled to recover, by action against the supplier
of the services, a refund of:
(a) any money paid by the consumer for the services; and
(b) an amount that is equal to the value of any other consideration
provided by the consumer for the services;
to the extent that the consumer
has not already consumed the services at the time the termination takes
effect.
270 Termination of contracts for the supply of goods that
are connected with terminated services
(1) If:
(a) under section 267, a consumer terminates a contract for the
supply of services; and
(b) a person (the supplier ) has supplied, in trade or commerce, goods
to the consumer that are connected with the services;
then:
(c) the consumer is taken to have rejected the goods at the time the
termination of the contract takes effect; and
(d) the consumer must return the goods to the supplier of the goods
unless:
(i) the goods have already been returned to, or retrieved by, the
supplier; or
(ii) the goods cannot be returned, removed or transported without
significant cost to the consumer because of the nature of the failure to
comply with the guarantee to which the rejection relates, or because of the
size or height, or method of attachment, of the goods; and
(e) the supplier must refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration
provided by the consumer for the goods.
(2) If subsection (1)(d)(ii) applies, the supplier must collect the
goods at the supplier's expense.
Division 2 -- Action for damages
against manufacturers of goods
271 Action for damages against
manufacturers of goods
(1) If:
(a) the guarantee under section 54 applies to a supply of goods to
a consumer; and
(b) the guarantee is not complied with;
an affected person in relation
to the goods may, by action against the manufacturer of the goods, recover
damages from the manufacturer.
(2) Subsection (1) does not apply if the guarantee under
section 54 is not complied with only because of:
(a) an act, default or omission of, or any representation made by, any
person other than the manufacturer or an employee or agent of the
manufacturer; or
(b) a cause independent of human control that occurred after the goods
left the control of the manufacturer; or
(c) the fact that the price charged by the supplier was higher than the
manufacturer's recommended retail price, or the average retail price, for the
goods.
(3) If:
(a) a person supplies, in trade or commerce, goods by description to a
consumer; and
(b) the description was applied to the goods by or on behalf of the
manufacturer of the goods, or with express or implied consent of the
manufacturer; and
(c) the guarantee under section 56 applies to the supply and it is
not complied with;
an affected person in relation to the goods may, by
action against the manufacturer of the goods, recover damages from the
manufacturer.
(4) Subsection (3) does not apply if the guarantee under
section 56 is not complied with only because of:
(a) an act, default or omission of any person other than the
manufacturer or an employee or agent of the manufacturer; or
(b) a cause independent of human control that occurred after the goods
left the control of the manufacturer.
(5) If:
(a) the guarantee under section 58 or 59(1) applies to a supply of
goods to a consumer; and
(b) the guarantee is not complied with;
an affected person in relation
to the goods may, by action against the manufacturer of the goods, recover
damages from the manufacturer.
(6) If an affected person in relation to goods has, in accordance with
an express warranty given or made by the manufacturer of the goods, required
the manufacturer to remedy a failure to comply with a guarantee referred to in
subsection (1), (3) or (5):
(a) by repairing the goods; or
(b) by replacing the goods with goods of an identical type;
then,
despite that subsection, the affected person is not entitled to commence an
action under that subsection to recover damages of a kind referred to in
section 272(1)(a) unless the manufacturer has refused or failed to remedy
the failure, or has failed to remedy the failure within a reasonable time.
(7) The affected person in relation to the goods may commence an action
under this section whether or not the goods are in their original packaging.
272 Damages that may be recovered by action against manufacturers of
goods
(1) In an action for damages under this Division, an affected person in
relation to goods is entitled to recover damages for:
(a) any reduction in the value of the goods, resulting from the failure
to comply with the guarantee to which the action relates, below whichever of
the following prices is lower:
(i) the price paid or payable by the consumer for the goods;
(ii) the average retail price of the goods at the time of supply; and
(b) any loss or damage suffered by the affected person because of the
failure to comply with the guarantee to which the action relates if it was
reasonably foreseeable that the affected person would suffer such loss or
damage as a result of such a failure.
(2) Without limiting subsection (1)(b), the cost of inspecting and
returning the goods to the manufacturer is taken to be a reasonably
foreseeable loss suffered by the affected person as a result of the failure to
comply with the guarantee.
(3) Subsection (1)(b) does not apply to loss or damage suffered
through a reduction in the value of the goods.
273 Time limit for
actions against manufacturers of goods
An affected person may commence an action for damages under this Division at
any time within 3 years after the day on which the affected person first
became aware, or ought reasonably to have become aware, that the guarantee to
which the action relates has not been complied with.
Division 3 --
Miscellaneous
274 Indemnification of suppliers by manufacturers
(1) A manufacturer of goods is liable to indemnify a person (the
supplier ) who supplies the goods to a consumer if:
(a) the supplier is liable to pay damages under section 259(4) to
the consumer for loss or damage suffered by the consumer; and
(b) the manufacturer is or would be liable under section 271 to pay
damages to the consumer for the same loss or damage.
(2) Without limiting subsection (1), a manufacturer of goods is
liable to indemnify a person (the supplier ) who supplies the goods to a
consumer if:
(a) the supplier incurs costs because the supplier is liable under this
Part for a failure to comply with a guarantee that applies to the supply under
Subdivision A of Division 1 of Part 3-2; and
(b) the failure is:
(i) a failure to comply with the guarantee under section 54; or
(ii) a failure to comply with the guarantee under section 55 in
relation to a disclosed purpose that the consumer made known to the
manufacturer either directly or through the supplier or the person referred to
in section 55(2)(a)(ii); or
(iii) a failure to comply with the guarantee under section 56 in
relation to a description that was applied to the goods by or on behalf of the
manufacturer of the goods, or with the express or implied consent of the
manufacturer.
(3) The supplier may, with respect to the manufacturer's liability to
indemnify the supplier, commence an action against the manufacturer in a court
of competent jurisdiction for such legal or equitable relief as the supplier
could have obtained if that liability had arisen under a contract of indemnity
made between them.
(4) The supplier may commence the action at any time within 3 years
after the earliest of the following days:
(a) the day, or the first day, as the case may be, on which the supplier
made a payment with respect to, or otherwise discharged in whole or in part,
the liability of the supplier to the consumer;
(b) the day on which a proceeding was commenced by the consumer against
the supplier with respect to that liability or, if more than one such
proceeding was commenced, the day on which the first such proceeding was
commenced.
275 Limitation of liability etc.
If:
(a) there is a failure to comply with a guarantee that applies to a
supply of services under Subdivision B of Division 1 of Part 3-2;
and
(b) the law of a State or a Territory is the proper law of the contract;
that law applies to limit or preclude liability for the failure, and recovery
of that liability (if any), in the same way as it applies to limit or preclude
liability, and recovery of any liability, for a breach of a term of the
contract for the supply of the services.
276 This Part not to be
excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term of the contract)
is void to the extent that the term purports to exclude, restrict or modify,
or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Part; or
(b) the exercise of a right a conferred by such a provision; or
(c) any liability of a person in relation to a failure to comply with a
guarantee that applies under Division 1 of Part 3-2 to a supply of
goods or services.
(2) A term of a contract is not taken, for the purposes of this section,
to exclude, restrict or modify the application of a provision of this Part
unless the term does so expressly or is inconsistent with the provision.
(3) This section does not apply to a term of a contract that is a term
referred to in section 276A(4).
276A Limitation in certain
circumstances of liability of manufacturer to seller
(1) Despite section 274, if goods are not of a kind ordinarily
acquired for personal, domestic or household use or consumption, the liability
under that section of the manufacturer of the goods to a person (the supplier
) who supplied the goods to a consumer is limited to a liability to pay to the
supplier an amount equal to:
(a) the cost of replacing the goods; or
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired;
whichever is the lowest
amount.
(2) Subsection (1) does not apply in relation to particular goods
if the supplier establishes that it is not fair or reasonable for the
liability of the manufacturer of the goods to be limited as mentioned in
subsection (1).
(3) In determining for the purposes of subsection (2) whether or
not it is fair or reasonable for the liability of a manufacturer to a supplier
in relation to goods to be limited as mentioned in subsection (1), a
court is to have regard to all the circumstances of the case, and in
particular to the following matters:
(a) the availability of suitable alternative sources of supply of the
goods;
(b) the availability of equivalent goods;
(c) whether the goods were manufactured, processed or adapted to the
special order of the supplier.
(4) This section is subject to any term of a contract between the
manufacturer and the supplier imposing on the manufacturer a greater liability
than the liability mentioned in subsection (1).
277
Representative actions by the regulator
(1) The regulator may, by application, commence an action under this
Part on behalf of one or more persons identified in the application who are
entitled under this Part to take the action.
(2) The regulator may only make the application if it has obtained the
written consent of the person, or each of the persons, on whose behalf the
application is being made.
Part 5-5 -- Liability of suppliers and
credit providers
Division 1 -- Linked credit contracts
278
Liability of suppliers and linked credit providers relating to linked credit
contracts
(1) If a consumer who is a party to a linked credit contract suffers
loss or damage as a result of:
(a) a misrepresentation relating to the credit provided under that
linked credit contract, or to a supply of goods or services (a related supply
) to which that contract relates; or
(b) a breach of the linked credit contract, or of a contract for a
related supply; or
(c) the failure of consideration in relation to the linked credit
contract, or to a contract for a related supply; or
(d) a failure to comply with a guarantee that applies, under
section 54, 55, 56, 57, 60, 61 or 62, in relation to a related supply; or
(e) a breach of a warranty that is implied in the linked credit contract
by section 12ED of the
Australian Securities and Investments Commission Act 2001 ;
the linked
credit provider who is a party to the contract, and the supplier of a related
supply, are jointly and severally liable to the consumer for the amount of the
loss or damage.
(2) A linked credit contract is a contract that a consumer enters into
with a linked credit provider of a person (the supplier ) for the provision of
credit in relation to:
(a) the supply by way of sale, lease, hire or hire-purchase of goods to
the consumer by the linked credit provider where the supplier supplies the
goods, or causes the goods to be supplied, to the linked credit provider; or
(b) the supply by the supplier of goods or services, or goods and
services, to the consumer.
279 Action by consumer to recover amount
of loss or damage
(1) If a linked credit provider, and a supplier of the goods or
services, are liable under section 278 to a consumer for an amount of
loss or damage, the consumer may recover the amount by action in a court of
competent jurisdiction.
(2) The consumer must bring the action against the linked credit
provider and the supplier jointly.
(3) Subsection (2) does not apply if:
(a) the supplier has been dissolved or the winding up of the supplier
has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the action is taken, it is not
reasonably likely that a judgment obtained against the supplier would be
satisfied;
(ii) that court has, on the application of the consumer, declared that
that subsection does not apply in relation to the proceedings.
280
Cases where a linked credit provider is not liable
(1) In joint liability proceedings, a linked credit provider is not
liable to a consumer under section 278 if the linked credit provider
establishes that:
(a) the credit provided by the credit provider to the consumer was the
result of an approach made to the credit provider by the consumer; and
(b) the approach was not induced by the supplier of the goods or
services to which the linked credit contract relates.
(2) In joint liability proceedings, a linked credit provider is not
liable to a consumer under section 278 if the proceedings relate to the
supply by way of lease, hire or hire-purchase of goods to the consumer by the
linked credit provider, and the credit provider establishes that:
(a) after due inquiry before becoming a linked credit provider of the
supplier of the goods, the credit provider was satisfied that the reputation
of the supplier in respect of the supplier's financial standing and business
conduct was good; and
(b) after becoming a linked credit provider of the supplier, the credit
provider had not had cause to suspect that:
(i) the consumer might be entitled to recover an amount of loss or
damage suffered as a result of a misrepresentation, breach, failure of
consideration, failure to comply with a guarantee, or breach of a warranty,
referred to in section 278(1); and
(ii) the supplier might be unable to meet the supplier's liabilities as
and when they fall due.
(3) In joint liability proceedings, a linked credit provider is not
liable to a consumer under section 278 if the proceedings relate to a
contract of sale in relation to which a tied loan contract applies and the
linked credit provider establishes that:
(a) after due inquiry before becoming a linked credit provider of the
supplier of goods to which the contract relates, the credit provider was
satisfied that the reputation of the supplier in respect of the supplier's
financial standing and business conduct was good; and
(b) after becoming a linked credit provider of the supplier, but before
the tied loan contract was entered into, the linked credit provider had not
had cause to suspect that:
(i) the consumer might, if the tied loan contract was entered into, be
entitled to recover an amount of loss or damage suffered as a result of a
misrepresentation, breach, failure of consideration, failure to comply with a
guarantee, or breach of a warranty, referred to in section 278(1); and
(ii) the supplier might be unable to meet the supplier's liabilities as
and when they fall due.
(4) In joint liability proceedings, a linked credit provider is not
liable to a consumer under section 278 if:
(a) the proceedings relate to a contract of sale in relation to which a
tied continuing credit contract entered into by the linked credit provider
applies; and
(b) the credit provider establishes the matter referred to in
subsection (5), having regard to:
(i) the nature and volume of business carried on by the credit provider;
and
(ii) such other matters as appear to be relevant in the circumstances of
the case.
(5) The matter for the purposes of subsection (4) is that the
linked credit provider, before first becoming aware of:
(a) the contract of sale referred to in paragraph (a) of that
subsection; or
(b) proposals for the making of such a contract;
had not had cause to
suspect that a person entering into such a contract with the supplier might be
entitled to claim damages against, or recover a sum of money from, the
supplier for a misrepresentation, breach, failure of consideration, failure to
comply with a guarantee, or a breach of a warranty, referred to in
section 278(1).
(6) This section has effect despite section 278(1).
281
Amount of liability of linked credit providers
The liability of a linked credit provider to a consumer under
section 278(1) in relation to a contract referred to in
section 278(1) is limited to an amount that does not exceed the sum of:
(a) the amount financed under the tied loan contract, tied continuing
credit contract, lease contract, contract of hire or contract of
hire-purchase; and
(b) the amount of interest (if any), or damages in the nature of
interest, allowed or awarded against the credit provider by the court in which
the action in relation to the liability is taken; and
(c) the amount of costs (if any) awarded by that court against the
credit provider or supplier, or both.
282 Counter-claims and offsets
(1) If proceedings in relation to a linked credit contract are brought
against a consumer who is party to the contract by the linked credit provider
who is a party to the contract, the consumer is not entitled to:
(a) make a counter-claim in relation to the credit provider's liability
under section 278(1); or
(b) exercise a right conferred by subsection (3) of this section in
relation to that liability;
unless the consumer claims in the proceedings
against the supplier in respect of the liability, by third-party proceedings
or otherwise.
(2) Subsection (1) does not apply if:
(a) the supplier has been dissolved or the winding up of the supplier
has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the proceedings are taken, it
is not reasonably likely that a judgment obtained against the supplier would
be satisfied;
(ii) that court has, on the application of the consumer, declared that
that subsection does not apply in relation to the proceedings.
(3) In any proceedings in relation to a linked credit contract in which
the linked credit provider who is a party to the contract claims damages or an
amount of money from a consumer, the consumer may offset, in whole or in part,
the consumer's liability against any liability of the credit provider under
section 278(1).
283 Enforcement of judgments etc.
(1) If, in joint liability proceedings, judgment is given against a
supplier and a linked credit provider, the judgment must not be enforced
against the credit provider unless a written demand made on the supplier for
satisfaction of the judgment has remained unsatisfied for at least 30 days.
(2) If the judgment can be enforced against the linked credit provider,
it may only be enforced to the extent of the lesser of the following amounts:
(a) the amount calculated in accordance with section 281;
(b) so much of the judgment debt as has not been satisfied by the
supplier.
(3) If, in joint liability proceedings, a right conferred by
section 282(3) is established by a consumer against a linked credit
provider, the consumer must not receive the benefit of the right unless:
(a) judgment has been given against the supplier and credit provider;
and
(b) a written demand has been made on the supplier for satisfaction of
the judgment; and
(c) the demand has remained unsatisfied for at least 30 days.
(4) If the consumer can receive the benefit of a right conferred by
section 282(3), the consumer may only receive the benefit to the extent
of the lesser of the following amounts:
(a) the amount calculated in accordance with section 281;
(b) so much of the judgment debt as has not been satisfied by the
supplier.
(5) Subsections (1) and (3) do not apply if:
(a) the supplier has been dissolved or the winding up of the supplier
has commenced; or
(b) both of the following apply:
(i) in the opinion of the court in which the proceedings are taken, it
is not reasonably likely that a judgment obtained against the supplier would
be satisfied;
(ii) that court has, on the application of the consumer, declared that
those subsections do not apply in relation to the proceedings.
(6) If a judgment given in joint liability proceedings is enforced
against a linked credit provider of a supplier, the credit provider is
subrogated to the extent of the enforced judgment to any rights that the
consumer would have had but for the judgment against the supplier or any other
person.
284 Award of interest to consumers
(1) If, in joint liability proceedings, judgment is given against the
following (the defendant ) for an amount of loss or damage:
(a) a supplier and a linked credit provider;
(b) a linked credit provider;
the court must, on the application of
the consumer who suffered the loss or damage, award interest to the consumer
against the defendant upon the whole or a part of the amount, unless good
cause is shown to the contrary.
(2) The interest must be awarded from the time when the consumer became
entitled to recover the amount until the date on which the judgment is given,
at the greater of the following rates:
(a) if the amount payable by the consumer to the linked credit provider
for obtaining credit in connection with the goods or services to which the
proceedings relate may be calculated at a percentage rate per annum--that rate
or, if more than one such rate may be calculated, the lower or lowest of those
rates;
(b) 8%, or such other rate as is prescribed by the regulations.
(3) In determining whether good cause is shown against the awarding of
interest under subsection (1), the court must take into account any
payment made into court by the supplier or the linked credit provider.
(4) This section applies despite any other law.
285 Liability
of suppliers to linked credit providers, and of linked credit providers to
suppliers
(1) If a linked credit provider and supplier are liable, under
section 278, to a consumer who is a party to a linked credit contract:
(a) if the liability relates to a supply of goods or services to which
the linked credit contract relates--the supplier is liable to the credit
provider for the amount of loss suffered by the credit provider, unless the
supplier and credit provider otherwise agree; or
(b) if the liability relates to the linked credit contract--the credit
provider is liable to the supplier for the amount of loss suffered by the
supplier, unless the supplier and credit provider otherwise agree.
(2) The amount for which the supplier is liable under
subsection (1)(a) of this section is an amount not exceeding the sum of
the following amounts:
(a) the maximum amount of the linked credit provider's liability under
section 281;
(b) unless the court otherwise determines, the amount of costs (if any)
reasonably incurred by the linked credit provider in defending the joint
liability proceedings.
286 Joint liability proceedings and recovery
under section 135 of the National Credit Code
(1) If:
(a) a consumer is seeking, in joint liability proceedings, to recover an
amount under section 279 in relation to a contract for the supply of
goods or services; and
(b) the contract has been rescinded or discharged (whether under this
Schedule or any other law); and
(c) as a result of the contract being rescinded or discharged, the
consumer is entitled under section 135 of the National Credit Code to
terminate a linked credit contract; and
(d) the consumer terminates the linked credit contract under that
section;
the following amounts may be recovered in the joint liability
proceedings (to the extent that they have not been recovered under
section 135 of the National Credit Code):
(e) any amount that the consumer is entitled under section 135 of
the National Credit Code to recover from the credit provider under the linked
credit contract;
(f) any amount that the credit provider is entitled under
section 135 of the National Credit Code to recover from:
(i) the consumer; or
(ii) if the supplier under the contract for the supply of goods or
services is a party to the joint liability proceedings--the supplier.
(2) An amount that is recovered under subsection (1) ceases to be
recoverable under section 135 of the National Credit Code.
Division 2 -- Non-linked credit contracts
287 Liability of
suppliers and credit providers relating to non-linked credit contracts
(1) If a consumer who is a party to a non-linked credit contract suffers
loss or damage as a result of a failure to comply with a guarantee that
applies, under section 54, 55, 56, 57, 60, 61 or 62, in relation to a
supply to which the contract relates, the credit provider who is a party to
the contract is not under any liability to the consumer for the amount of the
loss or damage.
(2) Subsection (1) does not prevent the consumer from recovering
that amount by action against the supplier of the goods or services to which
the contract relates.
(3) If a consumer who is a party to a non-linked credit contract suffers
loss or damage as a result of a breach of a warranty that is implied in the
contract by section 12ED of the
Australian Securities and Investments Commission Act 2001 , the supplier of
the goods or services to which the contract relates is not under any liability
to the consumer for the amount of the loss or damage.
(4) Subsection (3) does not prevent the consumer from recovering
that amount by action against the credit provider who is a party to the
contract.
(5) A non-linked credit contract is a contract that a consumer enters
into with a credit provider for the provision of credit in relation to:
(a) the supply by way of sale, lease, hire or hire-purchase of goods to
the consumer where:
(i) a person (the supplier ) supplies the goods, or the causes the goods
to be supplied, to the credit provider; and
(ii) the credit provider is not a linked credit provider of the
supplier; and
(iii) prior negotiations or arrangements in relation to the acquisition
of the goods were conducted or made with the consumer by or on behalf of the
supplier; and
(iv) the credit provider did not take physical possession of the goods
before they were delivered to the consumer; or
(b) the supply of services to the consumer by a person in relation to
whom the credit provider is not a linked credit provider.
Chapter 6 --
Application and transitional provisions
Part 1 -- Application and
transitional provisions relating to the Consumer Credit Legislation Amendment
(Enhancements) Act 2012
288 Application of
amendments relating to lay-by agreements
The amendments made by items 1 to 8 and 10 to 15 of Schedule 7 to
the Consumer Credit Legislation Amendment (Enhancements) Act 2012 apply to
lay-by agreements entered into on or after the commencement of those items.
289 Application of amendment relating to repairs
The amendment made by item 9 of Schedule 7 to the
Consumer Credit Legislation Amendment (Enhancements) Act 2012 applies to
notices to be given in relation to the repair of goods accepted on or after
the commencement of that item.
290 Saving of regulations relating to
repairs
Despite the amendment made to subsection 103(1) of Schedule 2 to the
Competition and Consumer Act 2010 by item 9 of Schedule 7 to the
Consumer Credit Legislation Amendment (Enhancements) Act 2012 , regulations
that:
(a) were made for the purposes of that subsection; and
(b) were in force immediately before the commencement of that item;
continue in force (and may be dealt with) as if they were made for the
purposes of that subsection as amended by that item.
Part 1A --
Application provision relating to the Treasury Legislation Amendment (Small
Business and Unfair Contract Terms) Act 2015
290A
Application
(1) The amendments made by Schedule 1 to the
Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act
2015 apply in relation to a contract entered into on or after the commencement
of that Schedule.
(2) The amendments do not apply to a contract entered into before the
commencement of that Schedule. However:
(a) if the contract is renewed on or after that commencement--the
amendments apply to the contract as renewed, on and from the day (the renewal
day ) on which the renewal takes effect, in relation to conduct that occurs on
or after the renewal day; or
(b) if a term of the contract is varied on or after that commencement
and paragraph (a) has not already applied in relation to the
contract--the amendments apply to the term as varied, on and from the day (the
variation day ) on which the variation takes effect, in relation to conduct
that occurs on and after the variation day.
(3) If paragraph (2)(b) of this section applies to a term of a
contract, subsection 23(2) and section 27 apply to the contract.
(4) Despite paragraphs (2)(a) and (b) and subsection (3) of
this section, the amendments do not apply to a contract, or a term of a
contract, to the extent that the operation of the amendments would result in
an acquisition of property (within the meaning of paragraph 51(xxxi) of
the Constitution) from a person otherwise than on just terms (within the
meaning of that paragraph of the Constitution).
Part 2 -- Application
and transitional provisions relating to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017
291 Application of amendments relating to
confidentiality of notices
The amendment made by Part 4 of Schedule 14 to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017
applies in relation to disclosures made on or after the commencement of that
Part that relate to notices given on or after the commencement of that Part.
292 Application of amendments relating to prohibition on supplies
The amendments made by Part 6 of Schedule 14 to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017 apply
in relation to unsolicited consumer agreements made on or after the
commencement of that Part.
Part 3 -- Application provision relating to
the Treasury Laws Amendment (2018 Measures No. 3) Act 2018
295 Application of amendments
The amendments made by Schedule 1 to the Treasury Laws Amendment (2018
Measures No. 3) Act 2018 apply in relation to acts or omissions that
occur on or after the commencement of that Schedule.
Part 4 --
Application provisions relating to the Treasury Laws Amendment (Australian
Consumer Law Review) Act 2018
296
Application--listed public companies
The amendments made by items 4 and 5 of Schedule 2 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to acts or omissions on or after the day that Schedule commences.
297 Application--unsolicited supplies
The amendments made by Schedule 3 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to acts or omissions on or after the day that Schedule commences.
298 Application--unsolicited consumer agreements
The amendment made by Schedule 4 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 applies in
relation to acts or omissions that relate to agreements entered into on or
after the day that Schedule commences.
299 Application--single price
The amendments made by Schedule 5 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to acts or omissions on or after the day that is 12 months after the
day that Schedule commences.
300 Application--non-punitive orders
The amendments made by Schedule 8 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to orders relating to acts or omissions on or after the day that
Schedule commences.
301 Application--guarantees relating to the
supply of services
The amendments made by Schedule 9 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to services supplied under a contract entered into on or after the
day that Schedule commences.
Part 5 -- Application and transitional
provisions relating to the Treasury Laws Amendment (Gift Cards) Act 2018
302 Application of amendments relating to gift cards
The amendments made by Schedule 1 to the
Treasury Laws Amendment (Gift Cards) Act 2018 apply to gift cards supplied on
or after 1 November 2019.