Western Australian Consolidated Acts Western Australian Consolidated Acts (1) In this Act,
except in so far as the context or subject-matter otherwise indicates or
requires —
acquire includes —
(a) in
relation to goods — acquire by purchase or exchange or by
taking on lease, on hire or on hire-purchase;
(b) in
relation to services — accept; and
(c) in
relation to an interest in land — acquire by purchase or
exchange or by taking on lease, or in any other manner in which an interest in
land may be acquired for valuable consideration;
authorised person means a person authorised by the
Commissioner;
banning order means an order in force under
section 23Q or 23R of the Consumer Affairs Act 1971 prohibiting or
restricting the supply of goods;
business includes —
(a) a
business not carried on for profit; and
(b) a
trade or profession;
Commissioner has the meaning given by
section 4(1) of the Consumer Affairs Act 1971 ;
component part in relation to any goods includes
an accessory to those goods;
consumer has the meaning given by section 6;
Consumer Products Safety Committee means the
Consumer Products Safety Committee established under section 23E of the
Consumer Affairs Act 1971 ;
dangerous , in relation to goods, means likely to
cause death or to cause injury to the body or health of a person, whether the
death or injury is likely to be caused directly or indirectly and whether or
not because of —
(a) a
failure to include with or on the goods any instructions for their use;
(b) the
inclusion with or on the goods of instructions for the use of the goods that
are inaccurate or inadequate;
(c) a
failure of the goods to function in the manner represented by the manufacturer
or supplier;
(d) the
goods not being of the quality represented by the manufacturer or supplier; or
(e) the
necessity for, or possibility of, the use of the goods with other goods;
Department has the meaning given by
section 4(1) of the Consumer Affairs Act 1971 ;
disposal , in relation to an interest in land,
means disposal by sale, exchange or lease or by any other method by which an
interest in land may be disposed of for valuable consideration;
document means —
(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; or
(b) a
disc, tape, paper or other device from which sounds or messages are capable of
being reproduced,
and includes any source of information, whether or
not the information is available only after the source is subjected to
electronic or other process;
false representation has the meaning given by
section 13;
give effect to , in relation to a provision of a
contract, arrangement or understanding, includes do 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;
(b)
animals, including fish;
(c)
minerals, trees and crops, whether on, under or attached to land or not;
(d) gas
and electricity; and
(e) any
component part of, or accessory to, goods;
information includes —
(a) in
relation to goods, information that would be taken by any reasonable person as
referring directly or indirectly to any of the following matters with respect
to the goods or any component part of the goods —
(i)
compliance with a standard under this Act or a
standard specified or recognized by any person;
(ii)
quality, grade, composition, style, model, class, purity,
nature, number, quantity, gauge, size, measure, mass, age, or any physical
characteristic;
(iii)
history or previous ownership or use;
(iv)
fitness for purpose, strength, accuracy, safety, running
costs, durability, benefits to be derived, or any characteristic of
performance;
(v)
testing by any person or results of tests;
(vi)
sponsorship or approval by, of affiliation with, any
person, or conformity with or similarity to, a type sponsored or approved by
any person;
(vii)
price, change in price, comparative or relative price,
recommended price or relation to recommended price;
(viii)
suitability of method of caring for, washing, cleaning or
maintaining the goods;
(ix)
availability of maintenance or repair services or spare
parts;
(x)
method or manner of manufacture, packaging, distribution,
supply, selection, classification or grading;
(xi)
place or date of manufacture, packaging, distribution,
supply or origin;
(xii)
person by whom manufactured, packaged, distributed,
supplied, selected, classified or graded; or
(xiii)
in the case of goods that are printed, recorded or filmed
matter, the contents or authorship;
and
(b) in
relation to services, information that would be taken by any reasonable person
as referring directly or indirectly to any of the following matters with
respect to the services —
(i)
compliance with a standard specified or recognized by any
person;
(ii)
quality or nature;
(iii)
nature or amount of goods or materials used in the course
of providing the services;
(iv)
nature of equipment or machinery used in the course of
providing the services;
(v)
duration of or time at or within which the services are
to be provided;
(vi)
results or effect of services or benefits to be derived
therefrom;
(vii)
sponsorship or approval by, or affiliation with any
person;
(viii)
price, change in price, comparative or relative price,
recommended price, or relation to recommended price;
(ix)
standing, capabilities, competence, professional or
technical qualifications of persons by whom provided;
(x)
place at which services provided; or
(xi)
amenities or facilities available;
(TPA s. 53A(3))
interest , in relation to land,
means —
(a) a
legal or equitable estate or interest in the land;
(b) a
right of occupancy of the land, or of a building or part of a building erected
on the land, conferred by shares, or by virtue of a contract to purchase
shares, in a corporation that owns the land or the building; or
(c) a
right, power or privilege over, or in connection with, the land;
label means affix, append, or annex information
to, mark information on, or incorporate information with, anything;
manufacture includes assemble, process or
recondition;
materially inaccurate has the meaning given by
section 13(2);
officer means —
(a) the
Commissioner; or
(b) a
person appointed and employed under Part 3 of the Public Sector
Management Act 1994 , or whose services are used, in accordance with the
Consumer Affairs Act 1971 to assist the Commissioner in carrying out his
functions under any Act the administration of which is for the time being
committed to the Minister by the Governor;
package in relation to any goods
means —
(a)
wholly or partly enclose the goods in any form of covering or container for
supply to any person; or
(b)
authorise, direct, cause, suffer or permit the Act referred to in
paragraph (a);
packaging standard means a standard prescribed by
regulations referred to in section 66;
price includes a charge of any description and the
price of goods or services acquired by a person (whether or not by purchase)
is the amount paid or payable for them or, if such an amount is not
specified because acquisition of the goods or services is part only of a
transaction for which a total amount is paid or payable, is —
(a) the
lowest amount for which the goods or services could reasonably have been
acquired from the supplier at the time of the transaction or, if not from the
supplier, from another supplier; or
(b) if
they could not reasonably have been acquired separately from any
supplier — their value at the time of the transaction;
product information standard means a standard
prescribed by regulations referred to in section 59;
product quality standard means a standard
prescribed by regulations referred to in section 64;
product safety standard means a standard
prescribed by regulations referred to in section 50;
provide in relation to information in respect of
goods or services or an interest in land includes authorise, direct, cause,
suffer or permit information to be provided in respect of the goods, services
or interest;
provision , in relation to an understanding, means
any matter forming part of the understanding;
public authority means a public authority or local
government constituted by an Act (whether or not a statutory body
representing the Crown), a Government department or an administrative office;
published , in relation to a statement or
information, includes —
(a)
inserted in a newspaper or other publication printed or published in the
State;
(b)
publicly exhibited —
(i)
in, on, over or under a building, vehicle, aircraft or
ship, or in any other place (whether or not a public place and whether on land
or water); or
(ii)
in the air,
in view of persons who
are, or are passing, in or on a street or public place;
(c)
contained in a document sent or given to a person or thrown or left upon, or
at, premises occupied by a person;
(d)
broadcast by radio or television or otherwise publicly announced by means of
transmission of light or sound; or
(e)
reproduced electronically;
(f) made
verbally; or
(g)
appended to or stamped upon an article in the form of a label or impressed
stamp denoting that such article complies with the requirements
of —
(i)
Standards Australia; or
(ii)
any other reference to quality or make indicated by a
label or stamp;
regulations means the regulations made under
section 84;
re-supply in relation to goods acquired from a
person includes —
(a) a
supply of the goods to another person in an altered form or condition; and
(b) a
supply to another person of goods in which the first-mentioned goods have been
incorporated;
send includes deliver;
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 and 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;
(ii)
a contract for, or involving, the provision of gas or
electricity or the provision of any other form of energy;
(iii)
the provision, or making available for use, of facilities
for amusement, entertainment, recreation or instruction; or
(iv)
the conferring of rights, benefits or privileges for
which remuneration is payable in the form of a royalty, tribute, levy or
similar exaction;
(b) a
contract of insurance;
(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) a
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;
shares includes stock;
statement includes a representation of any kind,
whether made by means of —
(a) a
comment, word, map, plan or drawing; or
(b) a
pictorial representation or design,
or by any combination of those means;
supplier means a person who, in the course of a
business, supplies goods or services;
supply includes —
(a) in
relation to goods —
(i)
supply (including re-supply) by way of sale, exchange,
lease, hire or hire-purchase; and
(ii)
exhibit, expose or have in possession for the purpose of
sale, exchange, lease, hire or hire-purchase or for any purpose of
advertisement, manufacture or trade;
(b) in
relation to services — provide, grant or render for valuable
consideration; and
(c) in
relation both to goods and to services — donate for
promotional purposes;
this Act includes the regulations;
trade or commerce includes any business or
professional activity;
unsolicited goods means goods sent to a person
without any request for the goods being made by, or by the authority of, the
person;
unsolicited services means services supplied to a
person without any request for the services being made by, or by the authority
of, the person.
(TPA s. 4C)
(2) In this Act,
unless the contrary intention appears —
(a) a
reference to the supply or acquisition of goods includes a reference to
agreeing to supply or acquire goods;
(b) a
reference to the acquisition of goods includes a reference to the acquisition
of property in, or rights in relation to, goods upon a supply of the goods;
(c) a
reference to the supply or acquisition of services includes a reference to
agreeing to supply or acquire services;
(d) a
reference to the supply or acquisition of goods includes a reference to the
supply or acquisition of goods together with other property or services, or
both;
(e) a
reference to the supply or acquisition of services includes a reference to the
supply or acquisition of services together with goods or other property or
other services;
(f) a
reference to the disposal or acquisition of an interest in land includes a
reference to the disposal or acquisition of such an interest together with
goods or services;
(g) a
reference to goods or services includes a reference to goods and services; and
(h) a
reference to the disposal or acquisition of an interest in land includes a
reference to agreeing to dispose of or acquire such an interest, whether or
not the agreement is in writing or evidenced by writing.
(TPA s. 4B(2)(e))
(3) For the purposes
of this Act —
(a) the
obtaining of credit by a person in connection with the acquisition of goods or
services by the person is an acquisition by the person of services; and
(b) any
amount by which the price of the goods or services is increased because credit
was obtained is the price of the services represented by the obtaining of
credit.
(TPA s. 4(2))
(4) In this
Act —
(a) a
reference to engaging in conduct shall be read as a reference to doing or
refusing to do any act, including —
(i)
the making of, or the giving effect to a provision of, a
contract or arrangement; or
(ii)
the arriving at, or the giving effect to a provision of,
an understanding;
(b) a
reference to conduct, when that expression is used as a noun otherwise than as
mentioned in paragraph (a), shall be read as a reference to the doing of
or the refusing to do any act, including —
(i)
the making of, or the giving effect to a provision of, a
contract or arrangement; or
(ii)
the arriving at, or the giving effect to a provision of
an understanding;
(c) a
reference to refusing to do an act includes —
(i)
a reference to refraining (otherwise than inadvertently)
from doing the act; and
(ii)
a reference to making it known that the act will not be
done;
and
(d) 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 known a willingness to
accept applications, offers or proposals for the person to do the act or to do
that act on the condition.
(5) In this
Act —
(a) a
reference to loss or damage, other than a reference to the amount of any loss
or damage, includes a reference to injury; and
(b) a
reference to the amount of any loss or damage includes a reference to damages
in respect of an injury.
(6) In this Act, a
reference to the making of a representation includes a reference to the
publishing of a statement.
(7) Except as
expressly provided by this Act, nothing in this Act shall be taken to
limit, restrict or otherwise affect any right or remedy a person would have
had if this Act had not been enacted.
(TPA s. 4L)
(8) If the making of a
contract contravenes this Act by reason of the inclusion of a particular
provision in the contract, then, subject to subsection (9) and to any
order made under section 77 or 78, nothing in this Act affects the
validity or enforceability of the contract otherwise than in relation to that
provision in so far as that provision is severable.
(9) This Act has
effect notwithstanding any stipulation in any contract or agreement to the
contrary.
(10) Where a provision
of this Act is inconsistent with a provision of an Act specified in
the Schedule to the Consumer Affairs Act 1971 or prescribed for the
purposes of this subsection, or a provision of an instrument made under an
Act so specified or prescribed, the provision of the Act so
specified or prescribed, or of the instrument, prevails.
[Section 5 amended by No. 32 of 1994
s. 3(2); No. 14 of 1996 s. 4; No. 57 of 1997
s. 39(10); No. 74 of 2003 s. 53(2); No. 55 of 2004 s. 336;
No. 28 of 2006 s. 97; No. 8 of 2009 s. 56.]