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TASMANIA
__________
FAIR TRADING AMENDMENT
(UNCONSCIONABLE CONDUCT) BILL 2002
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 15A inserted
15A. Unconscionable conduct in business transactions
[Bill 60]-IV
2
FAIR TRADING AMENDMENT
(UNCONSCIONABLE CONDUCT) BILL 2002
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Fair Trading Act 1990
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Fair Trading Amendment
(Unconscionable Conduct) Act 2002.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
Principal Act
3. In this Act, the Fair Trading Act 1990* is referred to as
the Principal Act.
*No. 29 of 1990
[Bill 60] 3
s. 4 No. Fair Trading Amendment 2002
(Unconscionable Conduct)
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by inserting the following definition after the
definition of "acquire" in subsection (1):
"applicable industry code", in respect
of a supplier that is a participant
in an industry, means
(a) the prescribed provisions of
any mandatory industry
code relating to the industry;
and
(b) the prescribed provisions of
any voluntary industry code
that binds the supplier;
(b) by inserting the following definition after the
definition of "commencement day" in
subsection (1):
"consumer", in respect of an industry,
means a person to whom goods or
services are, or may be, supplied
by participants in the industry;
(c) by inserting the following definitions after the
definition of "goods" in subsection (1):
"industry code" means a code
regulating the conduct of
participants in the industry or
their conduct towards consumers
in the industry;
"listed public company" has the same
meaning as it has in the Income
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2002 Fair Trading Amendment No. s. 4
(Unconscionable Conduct)
Tax Assessment Act 1997 of the
Commonwealth;
(d) by omitting "premises." from paragraph (b) of
the definition of "trader" in subsection (1) and
substituting "premises;";
(e) by inserting the following definition after the
definition of "trader" in subsection (1):
"voluntary industry code" means an
industry code that is declared to be
voluntary.
(f) by inserting the following subsection after
subsection (1):
(1A) To avoid doubt, it is declared that
(a) franchising is an industry for the
purposes of this Act; and
(b) franchisors and franchisees are
participants in the industry of
franchising, whether or not they
are also participants in another
industry.
(g) by inserting the following subsections after
subsection (6):
(7) For the purposes of this Act, where a
person makes a representation with respect to
any future matter, including the doing of, or
the refusing to do, any act, and that person
does not have reasonable grounds for making
the representation, the representation is taken
to be misleading.
(8) For the purposes of the application of
subsection (7) to a proceeding concerning a
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(Unconscionable Conduct)
representation made by a person with respect
to any future matter, that person is, unless he
or she adduces evidence to the contrary, taken
not to have had reasonable grounds for
making the representation.
(9) Subsection (7) does not limit the
meaning of a reference in this Act to a
misleading representation, a representation
that is misleading in a material particular or
conduct that is misleading or is likely or liable
to mislead.
(10) Without limiting the meaning of
"services" in subsection (1), the obtaining of
credit by a person in connection with the
acquisition of goods or services by that person
is taken to be the acquisition by that person of
a service, and any amount by which the
amount paid or payable by that person for the
goods or services is increased by reason of so
obtaining credit is taken to be paid or payable
by that person for that service.
(11) Where a person acquired goods or
services otherwise than by way of purchase,
the price of the goods or services is taken to
have been
(a) the price at which, at the time of
the acquisition, that person could
have purchased the goods or
services from the supplier; or
(b) if, at the time of the acquisition
(i) the goods or services were
not available for purchase
from the supplier; or
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2002 Fair Trading Amendment No. s. 5
(Unconscionable Conduct)
(ii) were so available only
together with other property
or services
but, at that time, goods or services
of the kind acquired were
available for purchase from
another supplier without any
requirement to purchase other
property or services, the lowest
price at which that person could,
at that time, reasonably have
purchased goods or services of that
kind from the other supplier; or
(c) if goods or services of the kind
acquired were not available, at the
time of the acquisition, for
purchase from any supplier or
were not so available except
together with other property or
services, the value of the goods or
services at that time.
Section 15A inserted
5. After section 15 of the Principal Act, the following
section is inserted in Part 2:
Unconscionable conduct in business
transactions
15A. (1) This section applies to
(a) the supply or possible supply of goods or
services to a person whose acquisition or
possible acquisition of the goods or
services is, or would be, for the purpose
of trade or commerce; and
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(Unconscionable Conduct)
(b) the acquisition or possible acquisition of
goods or services by a person whose
acquisition or possible acquisition of the
goods or services is, or would be, for the
purpose of trade or commerce
unless
(c) the supply or possible supply of the
goods or services is at a price in excess of
$3 000 000, or such higher amount as is
prescribed; or
(d) the acquisition or possible acquisition of
the goods or services is at a price in
excess of $3 000 000, or such higher
amount as is prescribed.
(2) A person must not, in trade or commerce,
in connection with
(a) the supply or possible supply of goods or
services to a person (other than a listed
public company); or
(b) the acquisition or possible acquisition of
goods or services from a person (other
than a listed public company)
where the supply or possible supply, or acquisition
or possible acquisition, of the goods or services is, or
would be, for the purpose of trade or commerce,
engage in conduct that is, in all the circumstances,
unconscionable.
(3) Without in any way limiting the matters to
which a court may have regard for the purpose of
determining whether a person (in this section
referred to as the "supplier") has contravened
subsection (2) in connection with the supply or
possible supply of goods or services to a person (in
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2002 Fair Trading Amendment No. s. 5
(Unconscionable Conduct)
this section referred to as the "business consumer"),
the court may have regard to
(a) the relative strengths of the bargaining
positions of the supplier and the
business consumer; and
(b) whether, as a result of conduct engaged
in by the supplier, the business
consumer 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 business consumer 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 business
consumer or a person acting on behalf of
the business consumer 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 business
consumer 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 business consumer
was consistent with the supplier's
conduct in similar transactions between
the supplier and other like business
consumers; and
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s. 5 No. Fair Trading Amendment 2002
(Unconscionable Conduct)
(g) the requirements of any applicable
industry code; and
(h) the requirements of any other industry
code, if the business consumer 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
business consumer
(i) any intended conduct of the
supplier that might affect the
interests of the business
consumer; and
(ii) any risks to the business consumer
arising from the supplier's
intended conduct (being risks that
the supplier should have foreseen
would not be apparent to the
business consumer); and
(j) the extent to which the supplier was
willing to negotiate the terms and
conditions of any contract for supply of
the goods or services with the business
consumer; and
(k) the extent to which the supplier and the
business consumer acted in good faith.
(4) Without in any way limiting the matters to
which a court may have regard for the purpose of
determining whether a person (in this section
referred to as the "acquirer") has contravened
subsection (2) or (3) in connection with the
acquisition or possible acquisition of goods or
services from a person or corporation (in this section
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2002 Fair Trading Amendment No. s. 5
(Unconscionable Conduct)
referred to as the "small business supplier"), the
court may have regard to
(a) the relative strengths of the bargaining
positions of the acquirer and the small
business supplier; and
(b) whether, as a result of conduct engaged
in by the acquirer, the small business
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 small business 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 small
business supplier or a person acting on
behalf of the small business 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 small
business 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 small business
supplier was consistent with the
acquirer's conduct in similar
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(Unconscionable Conduct)
transactions between the acquirer and
other like small business suppliers; and
(g) the requirements of any applicable
industry code; and
(h) the requirements of any other industry
code, if the small business 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
small business supplier
(i) any intended conduct of the
acquirer that might affect the
interests of the small business
supplier; and
(ii) any risks to the small business
supplier arising from the
acquirer's intended conduct (being
risks that the acquirer should
have foreseen would not be
apparent to the small business
supplier); and
(j) the extent to which the acquirer was
willing to negotiate the terms and
conditions of any contract for the
acquisition of the goods or services with
the small business supplier; and
(k) the extent to which the acquirer and the
small business supplier acted in good
faith.
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2002 Fair Trading Amendment No. s. 5
(Unconscionable Conduct)
(5) A person is not to be taken for the purposes
of this section to engage in unconscionable conduct
in connection with
(a) the supply or possible supply of goods or
services to another person; or
(b) the acquisition or possible acquisition of
goods or services from another person
by reason only that the first-mentioned person
institutes legal proceedings in relation to that
supply, possible supply, acquisition or possible
acquisition or refers to arbitration a dispute or claim
in relation to that supply, possible supply,
acquisition or possible acquisition.
(6) For the purpose of determining whether a
person has contravened subsection (2)
(a) a court must not have regard to any
circumstances that were not reasonably
foreseeable at the time of the alleged
contravention; and
(b) a court may have regard to
circumstances existing before the
commencement of this section but not to
conduct engaged in before that
commencement.
(7) For the purposes of subsection (1)
(a) subject to paragraphs (b), (c), (d) and (e),
the price for
(i) the supply or possible supply of
goods or services to a person; or
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(Unconscionable Conduct)
(ii) the acquisition or possible
acquisition of goods or services by
a person
is taken to be the amount paid or
payable by the person for the goods or
services; and
(b) subsection (10) of section 3 applies as if
references in that subsection to the
acquisition of goods or services by a
person were references to
(i) the supply of goods or services to a
person following a purchase; or
(ii) the acquisition of goods or services
by a person by way of purchase
as the case requires; and
(c) subsection (11) of section 3 applies as if
(i) the reference in that subsection to
a person acquiring goods or
services otherwise than by way of
purchase included a reference to a
person being supplied with goods
or services otherwise than
following a purchase; and
(ii) a reference in that subsection to
acquisition included a reference to
supply; and
(d) subsection (10) of section 3 applies as if
references in that subsection to the
acquisition of goods or services by a
person, or to the acquisition of services
by a person, included references to the
supply of goods or services to a person,
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2002 Fair Trading Amendment No. s. 5
(Unconscionable Conduct)
or to the supply of services to a person,
as the case may be; and
(e) the price for the supply or possible
supply, or the acquisition or possible
acquisition, of services comprising or
including a loan or loan facility is taken
to include the capital value of the loan or
loan facility.
Government Printer, Tasmania 15