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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Fair Trading (Unconscionable Conduct) Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 1
3. Consequential amendment to section 7 1
4. New sections 8A and 8B inserted 2
8A. Unconscionable conduct in business transactions 2
8B. The price for a supply or acquisition, or possible supply
or acquisition 8
ENDNOTES 11
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PARLIAMENT OF VICTORIA
Initiated in Assembly 31 October 2001
A BILL
to amend the Fair Trading Act 1999 and for other purposes.
Fair Trading (Unconscionable Conduct)
Act 2001
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Fair
Trading Act 1999 to prohibit persons from
engaging in unconscionable conduct in business
5 transactions.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3. Consequential amendment to section 7
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In section 7(2) of the Fair Trading Act 1999,
after "section 8" insert "or 8A".
4. New sections 8A and 8B inserted
After section 8 of the Fair Trading Act 1999
5 insert--
'8A Unconscionable conduct in business
transactions
(1) A person must not, in trade or commerce, in
connection with--
10 (a) the supply or possible supply of goods
or services to another person (other
than a listed public company); or
(b) the acquisition or possible acquisition
of goods or services from another
15 person (other than a listed public
company)--
engage in conduct that is, in all the
circumstances, unconscionable.
(2) This section only applies to--
20 (a) the supply or possible supply of goods
or services to a person; or
(b) the acquisition or possible acquisition
of goods or services by a person--
whose acquisition or possible acquisition of
25 the goods or services is or would be for the
purpose of trade or commerce.
(3) Without in any way limiting the matters to
which a court or the Tribunal may have
regard for the purpose of determining
30 whether a person (the "supplier") has
contravened sub-section (1) in connection
with the supply or possible supply of goods
or services to another person (the "business
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Fair Trading (Unconscionable Conduct) Act 2001
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consumer"), the court or Tribunal may have
regard to--
(a) the relative strengths of the bargaining
positions of the supplier and the
5 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
10 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
15 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
20 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
25 (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
30 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
35 the supplier and other like business
consumers; and
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(g) the requirements of any applicable
industry code; and
(h) the requirements of any other industry
code, if the business consumer acted on
5 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--
10 (i) any intended conduct of the
supplier that might affect the
interests of the business
consumer; and
(ii) any risks to the business consumer
15 arising from the supplier's
intended conduct (being risks that
the supplier should have foreseen
would not be apparent to the
business consumer); and
20 (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
25 (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 or the Tribunal may have
regard for the purpose of determining
30 whether a person (the "acquirer") has
contravened sub-section (1) in connection
with the acquisition or possible acquisition
of goods or services from another person
(the "small business supplier"), the court
35 or Tribunal may have regard to--
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(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
5 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
10 (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
15 (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
20 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
25 circumstances in which, the small
business supplier could have supplied
identical or equivalent goods or
services to a person other than the
acquirer; and
30 (f) the extent to which the acquirer's
conduct towards the small business
supplier was consistent with the
acquirer's conduct in similar
transactions between the acquirer and
35 other like small business suppliers; and
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(g) the requirements of any applicable
industry code; and
(h) the requirements of any other industry
code, if the small business supplier
5 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
10 small business supplier--
(i) any intended conduct of the
acquirer that might affect the
interests of the small business
supplier; and
15 (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
20 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 and services
25 with the small business supplier; and
(k) the extent to which the acquirer and the
small business supplier acted in good
faith.
(5) A person is not to be taken for the purposes
30 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
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(b) the acquisition or possible acquisition
of goods or services from another
person--
by reason only that the first-mentioned
5 person institutes legal proceedings in relation
to that supply, possible supply, acquisition or
possible acquisition.
(6) For the purpose of determining whether a
person has contravened sub-section (1)--
10 (a) the court or Tribunal must not have
regard to any circumstances that were
not reasonably foreseeable at the time
of the alleged contravention; and
(b) the court or Tribunal may have regard
15 to circumstances existing before the
commencement of this section but not
to conduct engaged in before that
commencement.
(7) This section does not apply to--
20 (a) a supply or possible supply of goods or
services; or
(b) an acquisition or possible acquisition of
goods or services--
at a price in excess of $3 000 000 or such
25 higher amount as is prescribed.
Note: Section 8B deals with the price for a supply or
acquisition, or possible supply or acquisition,
of goods or services.
(8) In sub-section (1)--
30 "listed public company" has the same
meaning as in the Income Tax
Assessment Act 1997 of the
Commonwealth.
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8B. The price for a supply or acquisition, or
possible supply or acquisition
(1) For the purposes of section 8A(7), the price
for--
5 (a) the supply or possible supply of goods
or services to a person; or
(b) the acquisition or possible acquisition
of goods or services by a person--
is, subject to the rest of this section, taken to
10 be the amount paid or payable by the person
for the goods or services.
(2) For the purposes of section 8A(7), if a
person is supplied with, or acquires, goods or
services by way of a purchase that includes
15 other property or services and no specified
price was allocated to the goods or services
in the contract under which they were
purchased, the price for the supply or
acquisition of the goods or services is taken
20 to be--
(a) the price at which, at the time of the
supply or acquisition, the person could
have purchased the goods or services
from the same supplier without the
25 other property or services; or
(b) if, at that time, the goods or services
were not available for purchase from
the supplier without the other property
or services but goods or services of the
30 kind supplied or acquired were
available for purchase from another
supplier without other property or
services--the lowest price at which the
person could, at that time, reasonably
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have purchased goods or services of
that kind from another supplier; or
(c) if, at that time, goods or services of the
kind supplied or acquired were not
5 available from any supplier for
purchase separately from other property
or services--the value of the goods or
services at that time.
(3) For the purposes of section 8A(7), if a
10 person is supplied with, or acquires, goods or
services other than by way of purchase, the
price for the supply or acquisition of the
goods or services is taken to be--
(a) the price at which, at the time of the
15 supply or acquisition, the person could
have purchased the goods or services
from the supplier; or
(b) if, at that time, the goods or services
were not available for purchase from
20 the supplier or were so available only
together with other property or services
but goods or services of the kind
supplied or acquired were available for
purchase from another supplier--the
25 lowest price at which the person could,
at that time, reasonably have purchased
goods or services of that kind from
another supplier; or
(c) if, at that time, goods or services of the
30 kind supplied or acquired were not
available for purchase from any
supplier or were not so available
separately from other property or
services--the value of the goods or
35 services at that time.
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(4) For the purposes of section 8A(7) but
without limiting by implication the definition
of "services" in section 3--
(a) the obtaining of credit by a person in
5 connection with the supply to, or
acquisition by, the person of goods or
services is taken to be the supply to, or
acquisition by, the person of a service;
and
10 (b) any amount by which the amount paid
or payable by the person for the goods
or services is increased by reason of the
person's so obtaining credit is taken to
be paid or payable by the person for
15 that service.
(5) For the purposes of section 8A(7), the price
for the supply or possible supply, or the
acquisition or possible acquisition, of
services comprising or including a loan or
20 loan facility is taken to include the capital
value of the loan or loan facility.'.
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Fair Trading (Unconscionable Conduct) Act 2001
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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