South Australian Consolidated Acts South Australian Consolidated Acts (1) A person
contravenes this section if—
(a) the
person is a promoter of, or (if there are more than one) one of the promoters
of, or is a participant in, a trading scheme to which this section applies;
and
(b) a
person who is a participant in that trading scheme, or has applied or been
invited to become a participant in that trading scheme, makes any payment to
or for the benefit of the person referred to in paragraph (a), being a
payment that the person is induced to make by reason that the prospect is held
out to the person of receiving payments or other benefits in respect of the
introduction (whether by the person or by another person) of other persons who
become participants in that trading scheme.
(2) A person also
contravenes this section if—
(a) the
person is a promoter of, or (if there are more than one) one of the promoters
of, is a participant in, or is otherwise acting in accordance with, a trading
scheme to which this section applies; and
(b) the
person, by holding out to another person the prospect of receiving payments or
other benefits in respect of the introduction (whether by that other person or
by another person) of other persons who become participants in that trading
scheme, attempts to induce that other person—
(i)
if that other person is already a participant in that
trading scheme, to make any payment to or for the benefit of the promoter or
any of the promoters or to or for the benefit of a participant in that trading
scheme; or
(ii)
if that other person is not already a participant in that
trading scheme, to become such a participant and to make a payment of a kind
mentioned in subparagraph (i).
(3) A person also
contravenes this section if the person promotes, or takes part in the
promotion of, a scheme under which—
(a) a
payment is to be made by a person who participates, or who has applied or been
invited to participate, in the scheme to or for the benefit of the person or
another person who takes part in the promotion of the scheme or to or for the
benefit of another person who participates in the scheme; and
(b) the
inducement for making the payment is the holding out to the person who makes
or is to make the payment the prospect of receiving payments from other
persons who may participate in the scheme.
(4) For the purposes
of subsection (1), (2) or (3)—
(a) a
prospect of a kind mentioned in that subsection will be taken to be held out
to a person whether it is held out so as to confer on the person a legally
enforceable right or not; and
(b) in
determining whether an inducement or attempt to induce is made by holding out
a prospect of a kind mentioned in that subsection, it is sufficient if a
prospect of that kind constitutes or would constitute a substantial part of
the inducement; and
(c) any
reference to the making of a payment to or for the benefit of a person will be
construed as including the making of a payment partly to or for the benefit of
that person and partly to or for the benefit of one or more other persons.
(5) For the purposes
of this section, a scheme is a trading scheme to which this section applies if
the scheme includes the following elements:
(a)
goods or services, or both, are to be provided by the person promoting
the scheme (in this section referred to as the "promoter") or, in the case of
a scheme promoted by two or more persons acting in concert (in this
section referred to as the "promoters"), are to be provided by one or more of
those persons; and
(b) the
goods or services so provided are to be supplied to or for other persons under
transactions arranged or effected by persons who participate in the scheme
(each of whom is in this section referred to as a
"participant"), being persons not all of whom are promoters.
(6) For the purposes
of subsection (5)—
(a) a
scheme will be taken to include the element referred to in paragraph (b)
of that subsection whether a participant who is not a promoter acts in
relation to a transaction referred to in that paragraph in the capacity of a
servant or agent of the promoter or of one of the promoters or in any other
capacity; and
(b) a
scheme includes any arrangements made in connection with the carrying on of a
business, whether those arrangements are made or recorded wholly or partly in
writing or not; and
(c) any
reference to the provision of goods or services by a person will be construed
as including a reference to the provision of goods or services under
arrangements to which that person is a party.