Tasmanian Consolidated Acts

FAIR TRADING ACT 1990 - SECT 3

      (1) In this Act, unless the contrary intention appears –

"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;

"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;

"arrive at", in relation to an understanding, includes reach or enter into;

"authorized officer" means an authorized officer within the meaning of the Consumer Affairs Act 1988;

"business" includes –

(a) a business not carried on for profit; and

(b) a trade or profession;

"code of practice" means a code of practice in respect of fair trading in dealings –

(a) between a particular class of suppliers and consumers; or

(b) by a particular class of persons in relation to consumers;

"commencement day" means the day proclaimed under section 2;

"consumer", in respect of an industry, means a person to whom goods or services are, or may be, supplied by participants in the industry;

"covenant" means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and "proposed covenant" has a corresponding meaning;

"Director" means the person for the time being holding the office of Director of Consumer Affairs and Fair Trading under the Consumer Affairs Act 1988;

"document" includes –

(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced;

"give effect to", in relation to a provision of a contract, arrangement, or understanding, includes doing an act or thing in pursuance of or in accordance with or enforce or purport to enforce;

"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) anything growing on, or attached to, land that is severable from the land; and

(e) gas and electricity;

"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 Tax Assessment Act 1997 of the Commonwealth;

"market", in relation to goods or services, means a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, those goods or services;

"premises" includes land;

"price" includes a charge of any description;

"provision", in relation to an understanding, means any matter forming part of the understanding;

"the regulations" means the regulations made and in force under this Act;

"related Act" means an Act or a provision of an Act, other than this Act –

(a) the administration of which is the responsibility of the Minister; or

(b) that is prescribed by the regulations to be a related Act;

"require", in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand;

"send" includes deliver, and "sent" and "sender" have corresponding meanings;

"services" includes 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, without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under –

(a) a contract for or in relation to –

(i) the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii) the provision of, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or

(b) a contract of insurance; or

(c) 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

(d) 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;

"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;

"trader" means a person who in the course of a business –

(a) supplies, or offers to supply, goods or services; or

(b) sells or lets, or offers to sell or let, premises;

"voluntary industry code" means an industry code that is declared to be voluntary.

      (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.

      (2) In this Act, a reference to the supply of goods or services extends to the supply of both goods and services.

      (3) In this Act, a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including –

(a) the making of, or the giving effect to a provision of, a contract or arrangement; or

(b) the arriving at, or the giving effect to a provision of, an understanding; or

(c) the requiring of the giving of, or the giving of, a covenant.

      (4) In this Act, a reference to conduct, when that expression is used as a noun otherwise than as mentioned in subsection (3), shall be read as a reference to the doing of or the refusing to do any act, including –

(a) the making of, or the giving effect to a provision of, a contract or arrangement; or

(b) the arriving at, or the giving effect to a provision of, an understanding; or

(c) the requiring of the giving of, or the giving of, a covenant.

      (5) In this Act, a reference to refusing to do an act includes a reference to –

(a) refraining (otherwise than inadvertently) from doing that act; or

(b) making it known that that act will not be done.

      (6) In this Act, 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.

      (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 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

(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.