Commonwealth Consolidated Acts

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DM

             (1)  A person must not, in trade or commerce, assert a right to payment from another person for unsolicited financial services.

Note:          Failure to comply with this subsection is an offence (see section 12GB).

          (1A)  Subsection (1) does not apply if the person had reasonable cause to believe that there was a right to payment.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal Code .

          (1B)  An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

             (2)  For the purposes of this section, a person is taken to assert a right to a payment from another person for unsolicited financial services 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 stating the amount of the payment or setting out the price of the services and not stating as prominently (or more prominently) that no claim is made to the payment or to payment of the price.

             (3)  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.

             (4)  In a proceeding against a person in respect of a contravention of this section, the burden lies on the person of proving that the person had reasonable cause to believe that there was a right to payment.