Commonwealth Consolidated Acts

TRADE PRACTICES ACT 1974 - SECT 85

             (1)  Subject to subsection (2), in a prosecution for a contravention of a provision of Part VC, it is a defence if the defendant establishes:

                     (a)  that the contravention in respect of which the proceedings were instituted was caused by a reasonable mistake of fact, including a mistake of fact caused by reasonable reliance on information supplied by another person; or

                     (c)  that:

                              (i)  the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control; and

                             (ii)  the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

Note:          A defendant bears a legal burden in relation to the matters in subsection (1) (see section 13.4 of the Criminal Code ).

       (1AA)  Paragraph (1)(a) is to be interpreted as having the same effect in relation to a contravention of a provision of Part VC as section 9.2 of the Criminal Code has in relation to offences of strict liability.

          (1A)  In paragraphs (1)(a) and (c), another person does not include a person who was:

                     (a)  a servant or agent of the defendant; or

                     (b)  in the case of a defendant being a body corporate, a director, servant or agent of the defendant;

at the time when the contravention occurred.

             (2)  If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leave of the Court, entitled to rely on that defence unless he or she has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing giving such information that would identify or assist in the identification of the other person as was then in his or her possession.

             (3)  In a proceeding in relation to a contravention of a provision of Part V or VC committed by the publication of an advertisement, it is a defence if the defendant establishes that he or she is a person whose business it is to publish or arrange for the publication of advertisements and that he or she received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of that Part.

Note:          In a prosecution for an offence against Part VC, a defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code ).

             (4)  In a proceeding in relation to a contravention of a provision of Part V or VC committed by the supplying of goods that did not comply with a consumer product safety standard or in relation to which the supplier did not comply with a consumer product information standard, it is a defence if the defendant establishes:

                     (a)  that the goods were acquired by him or her for the purpose of re‑supply and 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

                     (b)  that he or she did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with that standard or that he or she had not complied with that standard in relation to the goods, as the case may be, or he or she relied in good faith on a representation by the person from whom he or she acquired the goods that a consumer product safety standard or a consumer product information standard, as the case may be, had not been prescribed in respect of the goods.

Note:          In a prosecution for an offence against Part VC, a defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4 of the Criminal Code ).

             (5)  A person is not, without leave of the Court, entitled to rely on the defence provided by subsection (4) unless he or she has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing identifying the person from whom he or she acquired the goods.

             (6)  Where, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have engaged in conduct in contravention of a provision of Part IV or in conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) 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 any penalty or damages on such terms as the Court thinks fit.