Western Australian Consolidated Acts Western Australian Consolidated Acts (1) A person shall not
obtain a benefit, or seek to obtain a benefit, from a trading scheme to which
this section applies.
(2) A person
contravenes this section if —
(a) he
is the 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)
another person who is a participant in the trading scheme, or has applied or
been invited to become a participant in the trading scheme, makes a payment to
or for the benefit of the first-mentioned person, being a payment that he is
induced to make because the prospect is held out to him of receiving payments
or other benefits in respect of the introduction (whether by himself or by
another person) of other persons who become participants in the trading
scheme.
(3) A person also
contravenes this section if —
(a) he
is the 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) he,
by holding out to another person the prospect of receiving payments or other
benefits in respect of the introduction (whether by himself or by another
person) of other persons who become participants in the trading scheme,
attempts to induce the person to whom the prospect is held
out —
(i)
if he is already a participant in the 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
the trading scheme; or
(ii)
if he is not already a participant in the trading
scheme — to become such a participant and to make a payment of
a kind referred to in subparagraph (i).
(4) A person also
contravenes this section if he promotes, or takes part in the promotion
of, a scheme under which —
(a) a
payment is to be made by another person who participates, or has applied or
been invited to participate, in the scheme to or for the benefit of the
first-mentioned person or of 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.
(5) For the purposes
of this Division —
(a) a
prospect shall be taken to be held out to a person —
(i)
whether or not it is held out so as to confer on the
person a legally enforceable right; and
(ii)
in so far as it relates to the introduction of new
participants in a trading scheme, whether it is limited to the introduction of
new participants by him or extends to the introduction of new participants by
other persons;
(b) in
determining whether an inducement or attempt to induce is made by holding out
a prospect of a kind referred to in that subsection, it is sufficient if a
prospect of that kind constitutes, or would constitute, a substantial part of
the inducement;
(c) a
reference to the making of a payment to or for the benefit of a person shall
be construed as including the making of a payment partly to or for the benefit
of the person and partly to or for the benefit of one or more other persons;
and
(d)
trading 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.
(6) For the purposes
of this Division, a scheme is a trading scheme to which this
section applies if the elements of the scheme include —
(a) the
provision of goods or services by the person promoting the scheme (in this
section referred to as the promoter ) or, in the case of a scheme
promoted by 2 or more persons acting in concert (in this section referred
to as the promoters ), by one or more of those persons;
(b) the
supply of those goods or services 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; and
(c) the
prospect held out to participants of receiving payments or other benefits in
respect of any one or more of the following matters —
(i)
the introduction of other persons who become
participants;
(ii)
the promotion, transfer or other change of status of
participants within the scheme;
(iii)
the supply of goods to other participants;
(iv)
the supply of training facilities or other services for
other participants; or
(v)
transactions effected by other participants under which
goods or services are to be supplied to other persons.
(7) For the purposes
of subsection (6) —
(a) a
scheme shall be taken to include the element referred to in
subsection (6)(b) even if a participant who is not a promoter acts in
relation to a transaction in the capacity of a servant or agent of the
promoter or of one of the promoters or in any other capacity;
(b) a
scheme includes any arrangements made in connection with the carrying on of a
business, whether or not those arrangements are made or recorded wholly or
partly in writing; and
(c) a
reference to the provision of goods or services by a person includes a
reference to the provision of goods or services under arrangements to which
the person is a party.