FAIR TRADING ACT 2010 - SCHEDULE 2
FAIR TRADING ACT 2010 - SCHEDULE 2
[s. 88A]
[Heading inserted: No. 58 of 2010 s. 12.]
The following Acts are specified for the purposes
of section 88A —
Charitable Collections Act 1946
Debt Collectors Licensing Act 1964
Land Valuers Licensing Act 1978
Motor Vehicle Dealers Act 1973
Motor Vehicle Repairers Act 2003
Real Estate and Business Agents Act 1978
[Schedule 2 inserted: No. 58 of 2010 s. 12;
amended: No. 11 of 2013 s. 16; No. 21 of 2014 s. 8; No. 25 of 2019 s. 29.]
This is a compilation of the Fair Trading Act 2010 and includes amendments
made by other written laws. For provisions that have come into operation, and
for information about any reprints, see the compilation table. For provisions
that have not yet come into operation see the uncommenced provisions table.
Short title |
Number and year |
Assent |
Commencement |
---|---|---|---|
57 of 2010 |
8 Dec 2010 |
s. 1 and 2: 8 Dec 2010 (see s. 2(a)); | |
Biosecurity and Agriculture Management (Repeal and Consequential Provisions)
Act 2007 s. 23, 29, 61, 64 75 and 86 |
24 of 2007 (as amended by No. 58 of 2010 s. 192(2)-(6) and (8)) |
12 Oct 2007 |
1 May 2013 (see s. 2(2) and Gazette 5 Feb 2013 p. 823) |
Acts Amendment (Fair Trading) Act 2010 Pt. 2 |
58 of 2010 |
8 Dec 2010 |
1 Jul 2011 (see s. 2(c) and Gazette 7 Jun 2011 p. 2057) |
Reprint 1: The Fair Trading Act 2010 as at 3 Feb 2012 (includes amendments
listed above except those in the
Biosecurity and Agriculture Management (Repeal and Consequential Provisions)
Act 2007 ) | |||
Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 21 |
8 of 2012 |
21 May 2012 |
27 Apr 2015 (see s. 2(d) and Gazette 17 Apr 2015 p. 1371) |
Fair Trading Amendment Act 2013 |
11 of 2013 |
4 Oct 2013 |
s. 1 and 2: 4 Oct 2013 (see s. 2(a)); |
13 of 2014 |
2 Jul 2014 |
30 Jan 2017 (see s. 2(b) and Gazette 17 Jan 2017 p. 403) | |
Travel Agents Amendment and Expiry Act 2014 s. 8 |
21 of 2014 |
29 Aug 2014 |
25 Jan 2017 (see s. 2(c) and Gazette 24 Jan 2017 p. 741) |
Consumer Protection Legislation Amendment Act 2014 Pt. 4 |
23 of 2014 |
9 Oct 2014 |
19 Nov 2014 (see s. 2(b) and Gazette 18 Nov 2014 p. 4315) |
Public Health (Consequential Provisions) Act 2016 Pt. 3 Div. 12 |
19 of 2016 |
25 Jul 2016 |
24 Jan 2017 (see s. 2(1)(c) and Gazette 10 Jan 2017 p. 165) |
Statutes (Repeals) Act 2016 Pt. 4 Div. 2 |
50 of 2016 |
28 Nov 2016 |
29 Nov 2016 (see s. 2(b)) |
Reprint 2: The Fair Trading Act 2010 as at 22 Jun 2018 (includes amendments
listed above) | |||
Consumer Protection Legislation Amendment Act 2019 Pt. 5 |
25 of 2019 |
24 Oct 2019 |
1 Jan 2020 (see s. 2(b) and Gazette 24 Dec 2019 p. 4415) |
Fair Trading Amendment Act 2019 |
26 of 2019 |
24 Oct 2019 |
25 Oct 2019 (see s. 2(b)) |
Work Health and Safety Act 2020 Pt. 15 Div. 4 Subdiv. 3 |
36 of 2020 |
10 Nov 2020 |
31 Mar 2022 (see s. 2(1)(c) and SL 2022/18 cl. 2) |
9 of 2022 |
14 Apr 2022 |
1 Jul 2022 (see s. 2(c) and SL 2022/113 cl. 2) | |
Fair Trading Amendment Act 2022 |
34 of 2022 |
28 Oct 2022 |
s. 1 and 2: 28 Oct 2022 (see s. 2(a)); |
Directors’ Liability Reform Act 2023 Pt. 3 Div. 26 |
9 of 2023 |
4 Apr 2023 |
5 Apr 2023 (see s. 2(j)) |
To view the text of the uncommenced provisions see Acts as passed on the WA
Legislation website.
Short title |
Number and year |
Assent |
Commencement |
---|---|---|---|
Biosecurity and Agriculture Management (Repeal and Consequential Provisions)
Act 2007 s. 83 |
24 of 2007 (as amended by No. 58 of 2010 s. 192(7)) |
12 Oct 2007 |
To be proclaimed (see s. 2(2)) |
Public Health (Consequential Provisions) Act 2016 Pt. 5 Div. 7 |
19 of 2016 |
25 Jul 2016 |
To be proclaimed (see s. 2(1)(c)) |
1 The provisions in this Act amending these Acts
have been omitted under the Reprints Act 1984 s. 7(4)(e).
Note — Australian Consumer Law (WA) text
This note is not part of the Act. Section 19(1) of
the Act provides that the Australian Consumer Law text that, under section
19(2) of the Act, applies as the Australian Consumer Law (WA) consists of:
(a) Schedule 2 to the Competition and Consumer
Act 2010 (Commonwealth) (the Cwth Act), as in force on 1 June 2021 and as
amended by each provision that —
(i) is in an amending law that has effect for the
purposes of section 19 of the Act under section 19B; and
(ii) has come into operation for the purposes of
section 19 of the Act under section 19C;
and
(b) the regulations made under section 139G of the
Cwth Act, as those regulations are in force from time to time, subject to
section 19(1A) of the Act.
Regulations may also be made under section 116(3)
of the Act that alter the operation of certain provisions of the Australian
Consumer Law (WA).
This note shows the version of the text of
Schedule 2 to the Cwth Act, as in force on 1 June 2021 that, together with the
regulations made under section 139G of the Cwth Act, applies as the Australian
Consumer Law (WA).
The text of the regulations made under section
139G of the Cwth Act is not reproduced. The regulations can be accessed at
<https://www.legislation.gov.au>.
1 . Application of this Schedule
This Schedule applies
to the extent provided by:
(a) Part
XI of the Competition and Consumer Act; or
(b) an
application law.
(1) In this Schedule:
ABN has the meaning given by section 41 of the
A New Tax System (Australian Business Number) Act 1999 .
acceptable quality : see sections 54(2) to (7).
ACN has the meaning given by section 9 of the
Corporations Act 2001 .
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.
Note: Section 5 deals
with when receipt of a donation is an acquisition.
adverse publicity order : see section 247(2).
affected person , in relation to goods, means:
(a) a
consumer who acquires the goods; or
(b) a
person who acquires the goods from the consumer (other than for the purpose of
re-supply); or
(c) a
person who derives title to the goods through or under the consumer.
agreement document : see section 78(2).
annual turnover , of a body corporate during a
12-month period, means the sum of the values of all the supplies that the body
corporate, and any body corporate related to the body corporate, have made, or
are likely to make, during the 12-month period, other than:
(a)
supplies made from any of those bodies corporate to any other of those bodies
corporate; or
(b)
supplies that are input taxed; or
(c)
supplies that are not for consideration (and are not taxable supplies under
section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 ); or
(d)
supplies that are not made in connection with an enterprise that the body
corporate carries on; or
(e)
supplies that are not connected with Australia.
Expressions used in this definition that are also
used in the A New Tax System (Goods and Services Tax) Act 1999 have the same
meaning as in that Act.
applicable industry code has the meaning given by
section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in
section 140 of the Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and
Investments Commission.
assert a right to payment : see section 10(1).
associate regulator :
(a) for
the purposes of the application of this Schedule as a law of the Commonwealth
— means a body that is, for the purposes of the application of this
Schedule as a law of a State or a Territory, the regulator within the meaning
of the application law of the State or Territory; or
(b) for
the purposes of the application of this Schedule as a law of a State or a
Territory — means:
(i)
the Commission; or
(ii)
a body that is, for the purposes of the application of
this Schedule as a law of another State or a Territory, the regulator within
the meaning of the application law of that other State or Territory.
authority , in relation to a State or a Territory
(including an external Territory), means:
(a) a
body corporate established for a purpose of the State or the Territory by or
under a law of the State or Territory; or
(b) an
incorporated company in which the State or the Territory, or a body corporate
referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a) a
body corporate established for a purpose of the Commonwealth by or under a law
of the Commonwealth or a law of a Territory; or
(b) an
incorporated company in which the Commonwealth, or a body corporate referred
to in paragraph (a), has a controlling interest.
banker has the same meaning as in section 4(1) of
the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for
profit.
business day , in relation to an unsolicited
consumer agreement, means a day that is not:
(a) a
Saturday or Sunday; or
(b) a
public holiday in the place where the agreement was made.
business or professional relationship includes a
relationship between employer and employee, or a similar relationship.
call on , in relation to negotiating an
unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1)
of the Competition and Consumer Act.
Commonwealth mandatory standard , in relation to
goods, means a mandatory standard in respect of the goods imposed by a law of
the Commonwealth.
Commonwealth Minister means the Minister who
administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the
Competition and Consumer Act 2010 .
consumer : see section 3.
consumer contract : see section 23(3).
consumer goods means goods that are intended to be
used, or are of a kind likely to be used, for personal, domestic or household
use or consumption, and includes any such goods that have become fixtures
since the time they were supplied if:
(a) a
recall notice for the goods has been issued; or
(b) a
person has voluntarily taken action to recall the goods.
continuing credit contract : see section 14(1).
contravening conduct : see section 239(1)(a)(i).
court , in relation to a matter, means any court
having jurisdiction in the matter.
covering includes a stopper, glass, bottle,
vessel, box, capsule, case, frame or wrapper.
credit card : see section 39(5).
credit provider means a person providing, or
proposing to provide, in the course of a business carried on by the person,
credit to consumers in relation to the acquisition of goods or services.
dealer : see section 71.
debit card : see section 39(6).
declared term : see section 239(1)(a)(ii).
defective goods action means an action under
section 138, 139, 140 or 141, and includes such an action because of section
138(3) or 145.
disclosed purpose : see section 55(2).
displayed price : see sections 47(2) to (5).
document means any record of information, and
includes:
(a)
anything on which there is writing; and
(b)
anything on which there are marks, figures, symbols or perforations having a
meaning for persons qualified to interpret them; and
(c)
anything from which sounds, images or writings can be reproduced with or
without the aid of anything else; and
(d) a
map, plan, drawing or photograph.
egg has the meaning given by subsection 137A(3).
enforcement proceeding means:
(a) a
proceeding for an offence against Chapter 4; or
(b) a
proceeding instituted under Chapter 5 (other than under sections 237 and 239).
evidential burden , in relation to a matter, means
the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
express warranty , in relation to goods, means an
undertaking, assertion or representation:
(a) that
relates to:
(i)
the quality, state, condition, performance or
characteristics of the goods; or
(ii)
the provision of services that are or may at any time be
required for the goods; or
(iii)
the supply of parts that are or may at any time be
required for the goods; or
(iv)
the future availability of identical goods, or of goods
constituting or forming part of a set of which the goods, in relation to which
the undertaking, assertion or representation is given or made, form part; and
(b) that
is given or made in connection with the supply of the goods, or in connection
with the promotion by any means of the supply or use of the goods; and
(c) the
natural tendency of which is to induce persons to acquire the goods.
financial product has the meaning given by
section 12BAA of the Australian Securities and Investments Commission Act
2001 .
financial service has the meaning given by
section 12BAB of the Australian Securities and Investments Commission Act
2001 .
free item includes a free service.
free range egg has the meaning given by subsection
137A(4).
gift card : see section 99A.
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) gas
and electricity; and
(e)
computer software; and
(f)
second-hand goods; and
(g) any
component part of, or accessory to, goods.
grown : see section 255(7).
GST has the meaning given by section 195-1 of the
A New Tax System (Goods and Services Tax) Act 1999 .
industry code has the meaning given by
section 51ACA of the Competition and Consumer Act.
information provider : see sections 19(5) and (6).
information standard : see sections 134(1) and
135(1).
inner container includes any container into which
goods are packed, other than a shipping or airline container, pallet or other
similar article.
interest , in relation to land, means:
(a) a
legal or equitable estate or interest in the land; or
(b) a
right of occupancy of the land, or of a building or part of a building erected
on the land, arising by virtue of the holding of shares, or by virtue of a
contract to purchase shares, in an incorporated company that owns the land or
building; or
(c) a
right, power or privilege over, or in connection with, the land.
interim ban : see sections 109(1) and (2).
involved : a person is involved, in a
contravention of a provision of this Schedule or in conduct that constitutes
such a contravention, if the person:
(a) has
aided, abetted, counselled or procured the contravention; or
(b) has
induced, whether by threats or promises or otherwise, the contravention; or
(c) has
been in any way, directly or indirectly, knowingly concerned in, or party to,
the contravention; or
(d) has
conspired with others to effect the contravention.
joint liability proceedings means proceedings
relating to the joint and several liability under section 278 of a linked
credit provider and a supplier of goods or services.
label includes a band or ticket.
lay-by agreement : see section 96(3).
linked credit contract : see section 278(2).
linked credit provider , in relation to a supplier
of goods or services, means a credit provider:
(a) with
whom the supplier has a contract, arrangement or understanding relating to:
(i)
the supply to the supplier of goods in which the supplier
deals; or
(ii)
the business carried on by the supplier of supplying
goods or services; or
(iii)
the provision to persons to whom goods or services are
supplied by the supplier of credit in respect of payment for those goods or
services; or
(b) to
whom the supplier, by arrangement with the credit provider, regularly refers
persons for the purpose of obtaining credit; or
(c)
whose forms of contract, forms of application or offers for credit are, by
arrangement with the credit provider, made available to persons by the
supplier; or
(d) with
whom the supplier has a contract, arrangement or understanding under which
contracts, applications or offers for credit from the credit provider may be
signed by persons at premises of the supplier.
loan contract means a contract under which a
person in the course of a business carried on by that person provides or
agrees to provide, whether on one or more occasions, credit to a consumer in
one or more of the following ways:
(a) by
paying an amount to, or in accordance with the instructions of, the consumer;
(b) by
applying an amount in satisfaction or reduction of an amount owed to the
person by the consumer;
(c) by
varying the terms of a contract under which money owed to the person by the
consumer is payable;
(d) by
deferring an obligation of the consumer to pay an amount to the person;
(e) by
taking from the consumer a bill of exchange or other negotiable instrument on
which the consumer (whether alone or with another person or other persons) is
liable as drawer, acceptor or endorser.
major failure : see sections 260 and 268.
mandatory standard , in relation to goods, means a
standard:
(a) for
the goods or anything relating to the goods; and
(b)
that, under a law of the Commonwealth, a State or a Territory, must be
complied with when the goods are supplied by their manufacturer, being a law
creating an offence or liability if there is such non-compliance;
but does not include a standard which may be
complied with by meeting a higher standard.
manufacturer : see section 7.
market has the same meaning as in section 4E of
the Competition and Consumer Act.
materials , in relation to goods, means:
(a) if
the goods are unmanufactured raw products — those products; and
(b) if
the goods are manufactured goods — all matter or substances used or
consumed in the manufacture of the goods (other than matter or substances that
are treated as overheads); and
(c) in
either case — the inner containers in which the goods are packed.
mixed supply : see section 3(11).
National Credit Code has the meaning given by
section 5(1) of the National Consumer Credit Protection Act 2009 .
negotiated by telephone : see section 78(3).
negotiation : see section 72.
new participant : see section 45(2).
non - linked credit contract : see section
287(5).
non - party consumer means:
(a) in
relation to conduct referred to in section 239(1)(a)(i) — a person who
is not, or has not been, a party to an enforcement proceeding in relation to
the conduct; and
(b) in
relation to a term of a contract referred to in section 239(1)(a)(ii) —
a person who is not, or has not been, a party to an enforcement proceeding in
relation to the term.
participant , in a pyramid scheme, means a person
who participates in the scheme.
participate , in a pyramid scheme: see
section 44(3).
participation payment : see section 45(1)(a).
permanent ban : see sections 114(1) and (2).
post-supply fee : see section 99D(2).
premises means:
(a) an
area of land or any other place (whether or not it is enclosed or built on);
or
(b) a
building or other structure; or
(c) a
vehicle, vessel or aircraft; or
(d) a
part of any such premises.
price , of goods or services, means:
(a) the
amount paid or payable (including any charge of any description) for their
acquisition; or
(b) if
such an amount is not specified because the acquisition is part only of a
transaction for which a total amount is paid or payable:
(i)
the lowest amount (including any charge of any
description) 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
(ii)
if they could not reasonably have been acquired
separately from another supplier — their value at the time of the
transaction.
prior negotiations or arrangements , in relation
to the acquisition of goods by a consumer, means negotiations or arrangements:
(a) that
were conducted or made with the consumer by another person in the course of a
business carried on by the other person; and
(b) that
induced the consumer to acquire the goods, or otherwise promoted the
acquisition of the goods by the consumer.
product related service means a service for or
relating to:
(a) the
installation of consumer goods of a particular kind; or
(b) the
maintenance, repair or cleaning of consumer goods of a particular kind; or
(c) the
assembly of consumer goods of a particular kind; or
(d) the
delivery of consumer goods of a particular kind;
and, without limiting paragraphs (a) to (d),
includes any other service that relates to the supply of consumer goods of
that kind.
proof of transaction : see section 100(4).
publish , in relation to an advertisement, means
include in a publication intended for sale or public distribution (whether to
the public generally or to a restricted class or number of persons) or for
public display (including in an electronic form).
pyramid scheme : see section 45(1).
recall notice : see section 122(1).
recovery period : see section 41(4).
recruitment payment : see section 45(1)(b).
regulations means regulations made under
section 139G of the Competition and Consumer Act.
regulator :
(a) for
the purposes of the application of this Schedule as a law of the Commonwealth
— means the Commission; or
(b) for
the purposes of the application of this Schedule as a law of a State or a
Territory — has the meaning given by the application law of the State or
Territory.
rejection period : see section 262(2).
related , in relation to a body corporate: see
section 6.
related contract or instrument : see
section 83(2).
rely on , in relation to a term of a consumer
contract or small business contract, includes the following:
(a)
attempt to enforce the term;
(b)
attempt to exercise a right conferred, or purportedly conferred, by the term;
(c)
assert the existence of a right conferred, or purportedly conferred, by the
term.
responsible Minister means:
(a) the
Commonwealth Minister; or
(b) the
Minister of a State who administers the application law of the State; or
(c) the
Minister of a Territory who administers the application law of the Territory.
safety defect , in relation to goods: see
section 9.
safety standard : see sections 104(1) and 105(1).
sale by auction , in relation to the supply of
goods by a person, means a sale by auction that is conducted by an agent of
the person (whether the agent acts in person or by electronic means).
send includes deliver, and sent and sender have
corresponding meanings.
serious injury or illness means an acute physical
injury or illness that requires medical or surgical treatment by, or under the
supervision of, a medical practitioner or a nurse (whether or not in a
hospital, clinic or similar place), but does not include:
(a) an
ailment, disorder, defect or morbid condition (whether of sudden onset or
gradual development); or
(b) the
recurrence, or aggravation, of such an ailment, disorder, defect or morbid
condition.
services includes:
(a) 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
(b)
without limiting paragraph (a), the rights, benefits, privileges or facilities
that are, or are to be, provided, granted or conferred under:
(i)
a contract for or in relation to the performance of work
(including work of a professional nature), whether with or without the supply
of goods; or
(ii)
a contract for or in relation to the provision of, or the
use or enjoyment of facilities for, amusement, entertainment, recreation or
instruction; or
(iii)
a contract for or in relation to the conferring of
rights, benefits or privileges for which remuneration is payable in the form
of a royalty, tribute, levy or similar exaction; or
(iv)
a contract of insurance; or
(v)
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
(vi)
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.
share includes stock.
ship has the meaning given by section 3(1) of the
Admiralty Act 1988 .
single price : see section 48(7).
small business contract : see subsection 23(4).
standard form contract has a meaning affected by
section 27.
substantially transformed , in relation to goods:
see section 255(2).
substantiation notice means a notice under section
219.
substantiation notice compliance period : see
section 221(2).
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.
Note: Section 5 deals
with when a donation is a supply.
supply of limited title : see section 51(2).
telecommunications service : see section 65(2).
termination charge : see section 97(2).
termination period , in relation to an unsolicited
consumer agreement, means the period within which the consumer under the
agreement is, under section 82 or under the agreement, entitled to terminate
the agreement.
tied continuing credit contract means a
continuing credit contract under which a credit provider provides credit in
respect of the payment by a consumer for goods or services supplied by a
supplier in relation to whom the credit provider is a linked credit provider.
tied loan contract means a loan contract entered
into between a credit provider and a consumer where:
(a) the
credit provider knows, or ought reasonably to know, that the consumer enters
into the loan contract wholly or partly for the purposes of payment for goods
or services supplied by a supplier; and
(b) at
the time the loan contract is entered into the credit provider is a linked
credit provider of the supplier.
trade or commerce means:
(a)
trade or commerce within Australia; or
(b)
trade or commerce between Australia and places outside Australia;
and includes any business or professional activity
(whether or not carried on for profit).
transparent :
(a) in
relation to a document — means:
(i)
expressed in reasonably plain language; and
(ii)
legible; and
(iii)
presented clearly; and
(b) in
relation to a term of a consumer contract or small business contract —
see section 24(3).
unfair , in relation to a term of a consumer
contract or small business contract: see section 24(1).
unsolicited consumer agreement : see section 69.
unsolicited goods means goods sent to a person
without any request made by the person or on his or her behalf.
unsolicited services means:
(a)
services supplied to a person; or
(b)
services purported to have been supplied to a person which have not been
supplied;
without any request made by the person or on his
or her behalf.
upfront price : see section 26(2).
warranty against defects : see section 102(3).
(2) In this Schedule:
(a) a
reference to engaging in conduct is 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; or
(iii)
the requiring of the giving of, or the giving of, a
covenant; and
(b) a
reference to conduct, when that expression is used as a noun otherwise than as
mentioned in paragraph (a), is 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; or
(iii)
the requiring of the giving of, or the giving of, a
covenant; and
(c) a
reference to refusing to do an act includes a reference to:
(i)
refraining (otherwise than inadvertently) from doing that
act; or
(ii)
making it known that that 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 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.
Acquiring goods as a
consumer
(1) A person is taken
to have acquired particular goods as a consumer if, and only if:
(a) the
amount paid or payable for the goods, as worked out under subsections (4) to
(9), did not exceed:
(i)
$40,000; or
(ii)
if a greater amount is prescribed for the purposes of
this paragraph — that greater amount; or
(b) the
goods were of a kind ordinarily acquired for personal, domestic or household
use or consumption; or
(c) the
goods consisted of a vehicle or trailer acquired for use principally in the
transport of goods on public roads.
(2) However,
subsection (1) does not apply if the person acquired the goods, or held
himself or herself out as acquiring the goods:
(a) for the following purpose:
(i)
for goods other than gift cards—
for the purpose of re-supply;
(ii)
for gift cards—for the purpose of re-supply in
trade or commerce; or
(b) for
the purpose of using them up or transforming them, in trade or commerce:
(i)
in the course of a process of production or manufacture;
or
(ii)
in the course of repairing or treating other goods or
fixtures on land.
Acquiring services as a consumer
(3) A person is taken
to have acquired particular services as a consumer if, and only if:
(a) the
amount paid or payable for the services, as worked out under subsections (4)
to (9), did not exceed:
(i)
$40,000; or
(ii)
if a greater amount is prescribed for the purposes of
subsection (1)(a) — that greater amount; or
(b) the
services were of a kind ordinarily acquired for personal, domestic or
household use or consumption.
Amounts paid or payable for purchases
(4) For the purposes
of subsection (1) or (3), the amount paid or payable for goods or services
purchased by a person is taken to be the price paid or payable by the person
for the goods or services, unless subsection (5) applies.
(5) For the purposes
of subsection (1) or (3), if a person purchased goods or services by a mixed
supply and a specified price was not allocated to the goods or services in the
contract under which they were purchased, the amount paid or payable for goods
or services is taken to be:
(a) if,
at the time of the acquisition, the person could have purchased from the
supplier the goods or services other than by a mixed supply — the price
at which they could have been purchased from the supplier; or
(b) if:
(i)
paragraph (a) does not apply; but
(ii)
at the time of the acquisition, goods or services of the
kind acquired could have been purchased from another supplier other than by a
mixed supply;
the 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 the time of the acquisition, goods or services of the kind acquired could
not have been purchased from any supplier except by a mixed supply — the
value of the goods or services at that time.
Amounts paid or payable for other acquisitions
(6) For the purposes
of subsection (1) or (3), the amount paid or payable for goods or services
acquired by a person other than by way of purchase is taken to be the price at
which, at the time of the acquisition, the person could have purchased the
goods or services from the supplier, unless subsection (7) or (8) applies.
(7) For the purposes
of subsection (1) or (3), if:
(a)
goods or services acquired by a person other than by way of purchase could
not, at the time of the acquisition, have been purchased from the supplier, or
could have been purchased only by a mixed supply; but
(b) at
that time, goods or services of the kind acquired could have been purchased
from another supplier other than by a mixed supply;
the amount paid or
payable for the goods or services is taken to be the lowest price at which the
person could, at that time, reasonably have purchased goods or services of
that kind from another supplier.
(8) For the purposes
of subsection (1) or (3), if goods or services acquired by a person other than
by way of purchase could not, at the time of the acquisition, have been
purchased from any supplier other than by a mixed supply, the amount paid or
payable for the goods or services is taken to be the value of the goods or
services at that time.
Amounts paid or payable for obtaining credit
(9) If:
(a) a
person obtains credit in connection with the acquisition of goods or services
by him or her; and
(b) the
amount paid or payable by him or her for the goods or services is increased
because he or she so obtains credit;
obtaining the credit
is taken for the purposes of subsection (3) to be the acquisition of a
service, and the amount paid or payable by him or her for the service of being
provided with the credit is taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged
in any proceeding under this Schedule, or in any other proceeding in respect
of a matter arising under this Schedule, that a person was a consumer in
relation to particular goods or services, it is presumed, unless the contrary
is established, that the person was a consumer in relation to those goods or
services.
Mixed supplies
(11) A purchase or
other acquisition of goods or services is made by a mixed supply if the goods
or services are purchased or acquired together with other property or
services, or together with both other property and other services.
Supplies to consumers
(12) In this Schedule,
a reference to a supply of goods or services to a consumer is a reference to a
supply of goods or services to a person who is taken to have acquired them as
a consumer.
4 . Misleading representations with respect to
future matters
(1) If:
(a) a
person makes a representation with respect to any future matter (including the
doing of, or the refusing to do, any act); and
(b) the
person does not have reasonable grounds for making the representation;
the representation is
taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes
of applying subsection (1) in relation to a proceeding concerning a
representation made with respect to a future matter by:
(a) a
party to the proceeding; or
(b) any
other person;
the party or other
person is taken not to have had reasonable grounds for making the
representation, unless evidence is adduced to the contrary.
(3) To avoid doubt,
subsection (2) does not:
(a) have
the effect that, merely because such evidence to the contrary is adduced, the
person who made the representation is taken to have had reasonable grounds for
making the representation; or
(b) have
the effect of placing on any person an onus of proving that the person who
made the representation had reasonable grounds for making the representation.
(4) Subsection (1)
does not limit by implication the meaning of a reference in this Schedule to:
(a) a
misleading representation; or
(b) a
representation that is misleading in a material particular; or
(c)
conduct that is misleading or is likely or liable to mislead;
and, in particular,
does not imply that a representation that a person makes with respect to any
future matter is not misleading merely because the person has reasonable
grounds for making the representation.
5 . When donations are treated as supplies or
acquisitions
(1) For the purposes
of this Schedule, other than Parts 3-3, 3-4, 4-3 and 4-4:
(a) a
donation of goods or services is not treated as a supply of the goods or
services unless the donation is for promotional purposes; and
(b)
receipt of a donation of goods or services is not treated as an acquisition of
the goods or services unless the donation is for promotional purposes.
(2) For the purposes
of Parts 3-3, 3-4, 4-3 and 4-4:
(a) any
donation of goods or services is treated as a supply of the goods or services;
and
(b)
receipt of any donation of goods or services is treated as an acquisition of
the goods or services.
(1) A body corporate
is taken to be related to another body corporate if the bodies corporate
would, under section 4A(5) of the Competition and Consumer Act, be deemed to
be related to each other.
(2) In proceedings
under this Schedule, it is presumed, unless the contrary is established, that
bodies corporate are not, or were not at a particular time, related to each
other.
(1) A manufacturer
includes the following:
(a) a
person who grows, extracts, produces, processes or assembles goods;
(b) a
person who holds himself or herself out to the public as the manufacturer of
goods;
(c) a
person who causes or permits the name of the person, a name by which the
person carries on business or a brand or mark of the person to be applied to
goods supplied by the person;
(d) a
person (the first person ) who causes or permits another person, in connection
with:
(i)
the supply or possible supply of goods by that other
person; or
(ii)
the promotion by that other person by any means of the
supply or use of goods;
to hold out the first
person to the public as the manufacturer of the goods;
(e) a
person who imports goods into Australia if:
(i)
the person is not the manufacturer of the goods; and
(ii)
at the time of the importation, the manufacturer of the
goods does not have a place of business in Australia.
(2) For the purposes
of subsection (1)(c):
(a) a
name, brand or mark is taken to be applied to goods if:
(i)
it is woven in, impressed on, worked into or annexed or
affixed to the goods; or
(ii)
it is applied to a covering, label, reel or thing in or
with which the goods are supplied; and
(b) if
the name of a person, a name by which a person carries on business or a brand
or mark of a person is applied to goods, it is presumed, unless the contrary
is established, that the person caused or permitted the name, brand or mark to
be applied to the goods.
(3) If goods are
imported into Australia on behalf of a person, the person is taken, for the
purposes of paragraph (1)(e), to have imported the goods into Australia.
8 . Goods affixed to land or premises
For the purposes of
this Schedule, goods are taken to be supplied to a consumer even if they are
affixed to land or premises at the time of the supply.
9 . Meaning of safety defect in relation to goods
(1) For the purposes
of this Schedule, goods have a safety defect if their safety is not such as
persons generally are entitled to expect.
(2) In determining the
extent of the safety of goods, regard is to be given to all relevant
circumstances, including:
(a) the
manner in which, and the purposes for which, they have been marketed; and
(b)
their packaging; and
(c) the
use of any mark in relation to them; and
(d) any
instructions for, or warnings with respect to, doing, or refraining from
doing, anything with or in relation to them; and
(e) what
might reasonably be expected to be done with or in relation to them; and
(f) the
time when they were supplied by their manufacturer.
(3) An inference that
goods have a safety defect is not to be made only because of the fact that,
after they were supplied by their manufacturer, safer goods of the same kind
were supplied.
(4) An inference that
goods have a safety defect is not to be made only because:
(a)
there was compliance with a Commonwealth mandatory standard for them; and
(b) that
standard was not the safest possible standard having regard to the latest
state of scientific or technical knowledge when they were supplied by their
manufacturer.
10 . Asserting a right to payment
(1) A person is taken
to assert a right to payment from another person if the person:
(a)
makes a demand for the payment or asserts a present or prospective right to
the payment; or
(b)
threatens to bring any legal proceedings with a view to obtaining the payment;
or
(c)
places or causes to be placed the name of the other person on a list of
defaulters or debtors, or threatens to do so, with a view to obtaining the
payment; or
(d)
invokes or causes to be invoked any other collection procedure, or threatens
to do so, with a view to obtaining the payment; or
(e)
sends any invoice or other document that:
(i)
states the amount of the payment; or
(ii)
sets out the price of unsolicited goods or unsolicited
services; or
(iii)
sets out the charge for placing, in a publication, an
entry or advertisement;
and does not contain a
statement, to the effect that the document is not an assertion of a right to a
payment, that complies with any requirements prescribed by the regulations.
(2) For the purposes
of this section, an invoice or other document purporting to have been sent by
or on behalf of a person is taken to have been sent by that person unless the
contrary is established.
11 . References to acquisition, supply and
re-supply
In this Schedule:
(a) a
reference to the acquisition of goods includes a reference to the acquisition
of property in, or rights in relation to, goods pursuant to a supply of the
goods; and
(b) a
reference to the supply or acquisition of goods or services includes a
reference to agreeing to supply or acquire goods or services; and
(c) 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; and
(d) a
reference to the supply or acquisition of services includes a reference to the
supply or acquisition of services together with property or other services, or
both; and
(e) a
reference to the re-supply of goods acquired from a person includes a
reference to:
(i)
a supply of the goods to another person in an altered
form or condition; and
(ii)
a supply to another person of goods in which the
first-mentioned goods have been incorporated; and
(f) a
reference to the re-supply of services (the original services ) acquired from
a person (the original supplier ) includes a reference to:
(i)
a supply of the original services to another person in an
altered form or condition; and
(ii)
a supply to another person of other services that are
substantially similar to the original services, and could not have been
supplied if the original services had not been acquired by the person who
acquired them from the original supplier.
12 . Application of Schedule in relation to leases
and licences of land and buildings
In this Schedule:
(a) a
reference to a contract includes a reference to a lease of, or a licence in
respect of, land or a building or part of a building (despite the express
references in this Schedule to such leases or licences); and
(b) a
reference to making or entering into a contract, in relation to such a lease
or licence, is a reference to granting or taking the lease or licence; and
(c) a
reference to a party to a contract, in relation to such a lease or licence,
includes a reference to any person bound by, or entitled to the benefit of,
any provision contained in the lease or licence.
13 . Loss or damage to include injury
In this Schedule:
(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.
14 . Meaning of continuing credit contract
(1) If:
(a) a
person (the creditor ), in the course of a business carried on by the
creditor, agrees with a consumer to provide credit to the consumer in relation
to:
(i)
payment for goods or services; or
(ii)
cash supplied by the creditor to the consumer from time
to time; or
(iii)
payment by the creditor to another person in relation to
goods or services, or cash, supplied by that other person to the consumer from
time to time; and
(b) the
creditor:
(i)
has an agreement, arrangement or understanding (the
credit agreement ) with the consumer in relation to the provision of the
credit; or
(ii)
is engaged in a course of dealing (the credit dealing )
with the consumer in relation to the provision of the credit; and
(c) the
amounts owing to the creditor from time to time under the credit agreement or
credit dealing are, or are to be, calculated on the basis that:
(i)
all amounts owing; and
(ii)
all payments made;
by the consumer under,
or in respect of, the credit agreement or credit dealing are entered in one or
more accounts kept for the purpose of that agreement or dealing;
the credit agreement
or credit dealing is taken, for the purposes of this Schedule, to be a
continuing credit contract .
(2) If subsection
(1)(a)(iii) applies, the creditor is taken, for the purposes of this section,
to have provided credit to the consumer in relation to any goods or services,
or cash, supplied by another person to the consumer to the extent of any
payments made, or to be made, by the creditor to that other person.
15 . Contraventions of this Schedule
Conduct is not taken,
for the purposes of this Schedule, to contravene a provision of this Schedule
merely because of the application of:
(a)
section 23(1); or
(b) a
provision of Division 1 of Part 3-2 (other than section 66(2)); or
(c) a
provision of Part 3-5.
(1) If the making of a
contract after the commencement of this section contravenes this Schedule
because the contract includes a particular provision, nothing in this Schedule
affects the validity or enforceability of the contract otherwise than in
relation to that provision, so far as that provision is severable.
(2) This section has
effect subject to any order made under Division 4 of Part 5-2.
17 . References to provisions in this Schedule
In this Schedule, a
reference to a provision is a reference to a provision of this Schedule,
unless the contrary intention appears.
Chapter 2 — General protections
Part 2-1 — Misleading or deceptive conduct
18 . Misleading or deceptive conduct
(1) A person must not,
in trade or commerce, engage in conduct that is misleading or deceptive or is
likely to mislead or deceive.
(2) Nothing in Part
3-1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules
relating to representations as to the country of origin of goods, see Part
5-3.
19 . Application of this Part to information
providers
(1) This Part does not
apply to a publication of matter by an information provider if:
(a) in
any case — the information provider made the publication in the course
of carrying on a business of providing information; or
(b) if
the information provider is the Australian Broadcasting Corporation, the
Special Broadcasting Service Corporation or the holder of a licence granted
under the Broadcasting Services Act 1992 — the publication was by way of
a radio or television broadcast by the information provider.
(2) Subsection (1)
does not apply to a publication of an advertisement.
(3) Subsection (1)
does not apply to a publication of matter in connection with the supply or
possible supply of, or the promotion by any means of the supply or use of,
goods or services (the publicised goods or services ), if:
(a) the
publicised goods or services were goods or services of a kind supplied by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who supplies goods or services of the same kind
as the publicised goods or services; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
supplies goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1)
does not apply to a publication of matter in connection with the sale or
grant, or possible sale or grant, of, or the promotion by any means of the
sale or grant of, interests in land (the publicised interests in land ), if:
(a) the
publicised interests in land were interests of a kind sold or granted by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who sells or grants interests of the same kind as
the publicised interests in land; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
sells or grants interests of the same kind as the publicised interests in
land.
(5) An information
provider is a person who carries on a business of providing information.
(6) Without limiting
subsection (5), each of the following is an information provider :
(a) the
holder of a licence granted under the Broadcasting Services Act 1992 ;
(b) a
person who is the provider of a broadcasting service under a class licence
under that Act;
[(c) deleted.]
(d) the
Australian Broadcasting Corporation;
(e) the
Special Broadcasting Service Corporation.
Part 2-2 — Unconscionable conduct
20 . Unconscionable conduct within the meaning of
the unwritten law
(1) A person must not,
in trade or commerce, engage in conduct that is unconscionable, within the
meaning of the unwritten law from time to time.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) This section does
not apply to conduct that is prohibited by section 21.
21 . Unconscionable conduct in connection with
goods or services
(1) A person must not,
in trade or commerce, in connection with:
(a) the
supply or possible supply of goods or services to a person; or
(b) the
acquisition or possible acquisition of goods or services from a person;
engage in conduct that
is, in all the circumstances, unconscionable.
(2) This section does
not apply to conduct that is engaged in only because the person engaging in
the conduct:
(a)
institutes legal proceedings in relation to the supply or possible supply, or
in relation to the acquisition or possible acquisition; or
(b)
refers to arbitration a dispute or claim in relation to the supply or possible
supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of
determining whether a person has contravened subsection (1):
(a) the
court must not have regard to any circumstances that were not reasonably
foreseeable at the time of the alleged contravention; and
(b) the
court may have regard to conduct engaged in, or circumstances existing, before
the commencement of this section.
(4) It is the
intention of the Parliament that:
(a) this
section is not limited by the unwritten law relating to unconscionable
conduct; and
(b) this
section is capable of applying to a system of conduct or pattern of behaviour,
whether or not a particular individual is identified as having been
disadvantaged by the conduct or behaviour; and
(c) in
considering whether conduct to which a contract relates is unconscionable, a
court’s consideration of the contract may include consideration of:
(i)
the terms of the contract; and
(ii)
the manner in which and the extent to which the contract
is carried out;
and is not limited to
consideration of the circumstances relating to formation of the contract.
22 . Matters the court may have regard to for the
purposes of section 21
(1) Without limiting
the matters to which the court may have regard for the purpose of determining
whether a person (the supplier) has contravened section 21 in connection with
the supply or possible supply of goods or services to a person (the customer),
the court may have regard to:
(a) the
relative strengths of the bargaining positions of the supplier and the
customer; and
(b)
whether, as a result of conduct engaged in by the supplier, the customer 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 customer 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 customer or a person acting on behalf of the customer
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 customer 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 customer was
consistent with the supplier’s conduct in similar transactions between
the supplier and other like customers; and
(g) the
requirements of any applicable industry code; and
(h) the
requirements of any other industry code, if the customer 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 customer:
(i)
any intended conduct of the supplier that might affect
the interests of the customer; and
(ii)
any risks to the customer arising from the
supplier’s intended conduct (being risks that the supplier should have
foreseen would not be apparent to the customer); and
(j) if
there is a contract between the supplier and the customer for the supply of
the goods or services:
(i)
the extent to which the supplier was willing to negotiate
the terms and conditions of the contract with the customer; and
(ii)
the terms and conditions of the contract; and
(iii)
the conduct of the supplier and the customer in complying
with the terms and conditions of the contract; and
(iv)
any conduct that the supplier or the customer engaged in,
in connection with their commercial relationship, after they entered into the
contract; and
(k)
without limiting paragraph (j), whether the supplier has a contractual right
to vary unilaterally a term or condition of a contract between the supplier
and the customer for the supply of the goods or services; and
(l) the
extent to which the supplier and the customer acted in good faith.
(2) Without limiting
the matters to which the court may have regard for the purpose of determining
whether a person (the acquirer) has contravened section 21 in connection with
the acquisition or possible acquisition of goods or services from a person
(the supplier ), the court may have regard to:
(a) the
relative strengths of the bargaining positions of the acquirer and the
supplier; and
(b)
whether, as a result of conduct engaged in by the acquirer, the 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 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 supplier or a person acting on behalf of the 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 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 supplier was
consistent with the acquirer’s conduct in similar transactions between
the acquirer and other like suppliers; and
(g) the
requirements of any applicable industry code; and
(h) the
requirements of any other industry code, if the 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 supplier:
(i)
any intended conduct of the acquirer that might affect
the interests of the supplier; and
(ii)
any risks to the supplier arising from the
acquirer’s intended conduct (being risks that the acquirer should have
foreseen would not be apparent to the supplier); and
(j) if
there is a contract between the acquirer and the supplier for the acquisition
of the goods or services:
(i)
the extent to which the acquirer was willing to negotiate
the terms and conditions of the contract with the supplier; and
(ii)
the terms and conditions of the contract; and
(iii)
the conduct of the acquirer and the supplier in complying
with the terms and conditions of the contract; and
(iv)
any conduct that the acquirer or the supplier engaged in,
in connection with their commercial relationship, after they entered into the
contract; and
(k)
without limiting paragraph (j), whether the acquirer has a contractual right
to vary unilaterally a term or condition of a contract between the acquirer
and the supplier for the acquisition of the goods or services; and
(l) the
extent to which the acquirer and the supplier acted in good faith.
22A . Presumptions relating to whether
representations are misleading
Section 4 applies for
the purposes of sections 21 and 22 in the same way as it applies for the
purposes of Division 1 of Part 3-1.
Part 2-3 — Unfair contract terms
23 . Unfair terms of consumer contracts and small
business contracts
(1) A term of a
consumer contract or small business contract is void if:
(a) the
term is unfair; and
(b) the
contract is a standard form contract.
(2) The contract
continues to bind the parties if it is capable of operating without the unfair
term.
(3) A consumer
contract is a contract for:
(a) a
supply of goods or services; or
(b) a
sale or grant of an interest in land;
to an individual whose
acquisition of the goods, services or interest is wholly or predominantly for
personal, domestic or household use or consumption.
(4) A contract is a
small business contract if:
(a) the
contract is for a supply of goods or services, or a sale or grant of an
interest in land; and
(b) at
the time the contract is entered into, at least one party to the contract is a
business that employs fewer than 20 persons; and
(c)
either of the following applies:
(i)
the upfront price payable under the contract does not
exceed $300,000;
(ii)
the contract has a duration of more than 12 months and
the upfront price payable under the contract does not exceed $1,000,000.
(5) In counting the
persons employed by a business for the purposes of paragraph (4)(b), a casual
employee is not to be counted unless he or she is employed by the business on
a regular and systematic basis.
(1) A term of a
consumer contract or small business contract is unfair if:
(a) it
would cause a significant imbalance in the parties’ rights and
obligations arising under the contract; and
(b) it
is not reasonably necessary in order to protect the legitimate interests of
the party who would be advantaged by the term; and
(c) it
would cause detriment (whether financial or otherwise) to a party if it were
to be applied or relied on.
(2) In determining
whether a term of a contract is unfair under subsection (1), a court may take
into account such matters as it thinks relevant, but must take into account
the following:
(a) the
extent to which the term is transparent;
(b) the
contract as a whole.
(3) A term is
transparent if the term is:
(a)
expressed in reasonably plain language; and
(b)
legible; and
(c)
presented clearly; and
(d)
readily available to any party affected by the term.
(4) For the purposes
of subsection (1)(b), a term of a contract is presumed not to be reasonably
necessary in order to protect the legitimate interests of the party who would
be advantaged by the term, unless that party proves otherwise.
Without limiting section 24, the following are
examples of the kinds of terms of a consumer contract or small business
contract that may be unfair:
(a) a
term that permits, or has the effect of permitting, one party (but not another
party) to avoid or limit performance of the contract;
(b) a
term that permits, or has the effect of permitting, one party (but not another
party) to terminate the contract;
(c) a
term that penalises, or has the effect of penalising, one party (but not
another party) for a breach or termination of the contract;
(d) a
term that permits, or has the effect of permitting, one party (but not another
party) to vary the terms of the contract;
(e) a
term that permits, or has the effect of permitting, one party (but not another
party) to renew or not renew the contract;
(f) a
term that permits, or has the effect of permitting, one party to vary the
upfront price payable under the contract without the right of another party to
terminate the contract;
(g) a
term that permits, or has the effect of permitting, one party unilaterally to
vary the characteristics of the goods or services to be supplied, or the
interest in land to be sold or granted, under the contract;
(h) a
term that permits, or has the effect of permitting, one party unilaterally to
determine whether the contract has been breached or to interpret its meaning;
(i)
a term that limits, or has the effect of limiting, one
party’s vicarious liability for its agents;
(j) a
term that permits, or has the effect of permitting, one party to assign the
contract to the detriment of another party without that other party’s
consent;
(k) a
term that limits, or has the effect of limiting, one party’s right to
sue another party;
(l) a
term that limits, or has the effect of limiting, the evidence one party can
adduce in proceedings relating to the contract;
(m) a
term that imposes, or has the effect of imposing, the evidential burden on one
party in proceedings relating to the contract;
(n) a
term of a kind, or a term that has an effect of a kind, prescribed by the
regulations.
26 . Terms that define main subject matter of
consumer contracts or small business contracts etc. are unaffected
(1) Section 23 does
not apply to a term of a consumer contract or small business contract to the
extent, but only to the extent, that the term:
(a)
defines the main subject matter of the contract; or
(b) sets
the upfront price payable under the contract; or
(c) is a
term required, or expressly permitted, by a law of the Commonwealth, a State
or a Territory.
(2) The upfront price
payable under a contract is the consideration that:
(a) is
provided, or is to be provided, for the supply, sale or grant under the
contract; and
(b) is
disclosed at or before the time the contract is entered into;
but does not include
any other consideration that is contingent on the occurrence or non-occurrence
of a particular event.
(1) If a party to a
proceeding alleges that a contract is a standard form contract, it is presumed
to be a standard form contract unless another party to the proceeding proves
otherwise.
(2) In determining
whether a contract is a standard form contract, a court may take into account
such matters as it thinks relevant, but must take into account the following:
(a)
whether one of the parties has all or most of the bargaining power relating to
the transaction;
(b)
whether the contract was prepared by one party before any discussion relating
to the transaction occurred between the parties;
(c)
whether another party was, in effect, required either to accept or reject the
terms of the contract (other than the terms referred to in section 26(1)) in
the form in which they were presented;
(d)
whether another party was given an effective opportunity to negotiate the
terms of the contract that were not the terms referred to in section 26(1);
(e)
whether the terms of the contract (other than the terms referred to in
section 26(1)) take into account the specific characteristics of another party
or the particular transaction;
(f) any
other matter prescribed by the regulations.
28 . Contracts to which this Part does not apply
(1) This Part does not
apply to:
(a) a
contract of marine salvage or towage; or
(b) a
charterparty of a ship; or
(c) a
contract for the carriage of goods by ship.
(2) Without limiting
subsection (1)(c), the reference in that subsection to a contract for the
carriage of goods by ship includes a reference to any contract covered by a
sea carriage document within the meaning of the amended Hague Rules referred
to in section 7(1) of the Carriage of Goods by Sea Act 1991 .
(3) This Part does not
apply to a contract that is the constitution (within the meaning of section 9
of the Corporations Act 2001 ) of a company, managed investment scheme or
other kind of body.
(4) This Part does not
apply to a small business contract to which a prescribed law of the
Commonwealth, a State or a Territory applies.
Chapter 3 — Specific protections
Division 1 — False or misleading representations etc.
29 . False or misleading representations about
goods or services
(1) A person must not,
in trade or commerce, in connection with the supply or possible supply of
goods or services or in connection with the promotion by any means of the
supply or use of goods or services:
(a) make
a false or misleading representation that goods are of a particular standard,
quality, value, grade, composition, style or model or have had a particular
history or particular previous use; or
(b) make
a false or misleading representation that services are of a particular
standard, quality, value or grade; or
(c) make
a false or misleading representation that goods are new; or
(d) make
a false or misleading representation that a particular person has agreed to
acquire goods or services; or
(e) make
a false or misleading representation that purports to be a testimonial by any
person relating to goods or services; or
(f) make
a false or misleading representation concerning:
(i)
a testimonial by any person; or
(ii)
a representation that purports to be such a testimonial;
relating to goods or
services; or
(g) make
a false or misleading representation that goods or services have sponsorship,
approval, performance characteristics, accessories, uses or benefits; or
(h) make
a false or misleading representation that the person making the representation
has a sponsorship, approval or affiliation; or
(i)
make a false or misleading representation with respect to
the price of goods or services; or
(j) make
a false or misleading representation concerning the availability of facilities
for the repair of goods or of spare parts for goods; or
(k) make
a false or misleading representation concerning the place of origin of goods;
or
(l) make
a false or misleading representation concerning the need for any goods or
services; or
(m) make
a false or misleading representation concerning the existence, exclusion or
effect of any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); or
(n) make
a false or misleading representation concerning a requirement to pay for a
contractual right that:
(i)
is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a guarantee under Division 1
of Part 3-2); and
(ii)
a person has under a law of the Commonwealth, a State or
a Territory (other than an unwritten law).
Note 1: A pecuniary
penalty may be imposed for a contravention of this subsection.
Note 2: For rules
relating to representations as to the country of origin of goods, see Part
5-3.
(2) For the purposes
of applying subsection (1) in relation to a proceeding concerning a
representation of a kind referred to in subsection (1)(e) or (f), the
representation is taken to be misleading unless evidence is adduced to the
contrary.
(3) To avoid doubt,
subsection (2) does not:
(a) have
the effect that, merely because such evidence to the contrary is adduced, the
representation is not misleading; or
(b) have
the effect of placing on any person an onus of proving that the representation
is not misleading.
30 . False or misleading representations about
sale etc. of land
(1) A person must not,
in trade or commerce, in connection with the sale or grant, or the possible
sale or grant, of an interest in land or in connection with the promotion by
any means of the sale or grant of an interest in land:
(a) make
a false or misleading representation that the person making the representation
has a sponsorship, approval or affiliation; or
(b) make
a false or misleading representation concerning the nature of the interest in
the land; or
(c) make
a false or misleading representation concerning the price payable for the
land; or
(d) make
a false or misleading representation concerning the location of the land; or
(e) make
a false or misleading representation concerning the characteristics of the
land; or
(f) make
a false or misleading representation concerning the use to which the land is
capable of being put or may lawfully be put; or
(g) make
a false or misleading representation concerning the existence or availability
of facilities associated with the land.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) This section does
not affect the application of any other provision of Part 2-1 or this Part in
relation to the supply or acquisition, or the possible supply or acquisition,
of interests in land.
31 . Misleading conduct relating to employment
A person must not, in
relation to employment that is to be, or may be, offered by the person or by
another person, engage in conduct that is liable to mislead persons seeking
the employment as to:
(a) the
availability, nature, terms or conditions of the employment; or
(b) any
other matter relating to the employment.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
32 . Offering rebates, gifts, prizes etc.
(1) A person must not,
in trade or commerce, offer any rebate, gift, prize or other free item with
the intention of not providing it, or of not providing it as offered, in
connection with:
(a) the
supply or possible supply of goods or services; or
(b) the
promotion by any means of the supply or use of goods or services; or
(c) the
sale or grant, or the possible sale or grant, of an interest in land; or
(d) the
promotion by any means of the sale or grant of an interest in land.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If a person offers
any rebate, gift, prize or other free item in connection with:
(a) the
supply or possible supply of goods or services; or
(b) the
promotion by any means of the supply or use of goods or services; or
(c) the
sale or grant, or the possible sale or grant, of an interest in land; or
(d) the
promotion by any means of the sale or grant of an interest in land;
the person must,
within the time specified in the offer or (if no such time is specified)
within a reasonable time after making the offer, provide the rebate, gift,
prize or other free item in accordance with the offer.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Subsection (2)
does not apply if:
(a) the
person’s failure to provide the rebate, gift, prize or other free item
in accordance with the offer was due to the act or omission of another person,
or to some other cause beyond the person’s control; and
(b) the
person took reasonable precautions and exercised due diligence to avoid the
failure.
(4) Subsection (2)
does not apply to an offer that the person makes to another person if:
(a) the
person offers to the other person a different rebate, gift, prize or other
free item as a replacement; and
(b) the
other person agrees to receive the different rebate, gift, prize or other free
item.
(5) This section does
not affect the application of any other provision of Part 2-1 or this Part in
relation to the supply or acquisition, or the possible supply or acquisition,
of interests in land.
33 . Misleading conduct as to the nature etc. of
goods
A person must not, in
trade or commerce, engage in conduct that is liable to mislead the public as
to the nature, the manufacturing process, the characteristics, the suitability
for their purpose or the quantity of any goods.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
34 . Misleading conduct as to the nature etc. of
services
A person must not, in
trade or commerce, engage in conduct that is liable to mislead the public as
to the nature, the characteristics, the suitability for their purpose or the
quantity of any services.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
35 . Bait advertising
(1) A person must not,
in trade or commerce, advertise goods or services for supply at a specified
price if:
(a)
there are reasonable grounds for believing that the person will not be able to
offer for supply those goods or services at that price for a period that is,
and in quantities that are, reasonable, having regard to:
(i)
the nature of the market in which the person carries on
business; and
(ii)
the nature of the advertisement; and
(b) the
person is aware or ought reasonably to be aware of those grounds.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person who, in
trade or commerce, advertises goods or services for supply at a specified
price must offer such goods or services for supply at that price for a period
that is, and in quantities that are, reasonable having regard to:
(a) the
nature of the market in which the person carries on business; and
(b) the
nature of the advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
36 . Wrongly accepting payment
(1) A person must not,
in trade or commerce, accept payment or other consideration for goods or
services if, at the time of the acceptance, the person intends not to supply
the goods or services.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, accept payment or other consideration for goods or
services if, at the time of the acceptance, the person intends to supply goods
or services materially different from the goods or services in respect of
which the payment or other consideration is accepted.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not,
in trade or commerce, accept payment or other consideration for goods or
services if, at the time of the acceptance:
(a)
there are reasonable grounds for believing that the person will not be able to
supply the goods or services:
(i)
within the period specified by or on behalf of the person
at or before the time the payment or other consideration was accepted; or
(ii)
if no period is specified at or before that time —
within a reasonable time; and
(b) the
person is aware or ought reasonably to be aware of those grounds.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) A person who, in
trade or commerce, accepts payment or other consideration for goods or
services must supply all the goods or services:
(a)
within the period specified by or on behalf of the person at or before the
time the payment or other consideration was accepted; or
(b) if
no period is specified at or before that time — within a reasonable
time.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(5) Subsection (4)
does not apply if:
(a) the
person’s failure to supply all the goods or services within the period,
or within a reasonable time, was due to the act or omission of another person,
or to some other cause beyond the person’s control; and
(b) the
person took reasonable precautions and exercised due diligence to avoid the
failure.
(6) Subsection (4)
does not apply if:
(a) the
person offers to supply different goods or services as a replacement to the
person (the customer ) to whom the original supply was to be made; and
(b) the
customer agrees to receive the different goods or services.
(7) Subsections (1),
(2), (3) and (4) apply whether or not the payment or other consideration that
the person accepted represents the whole or a part of the payment or other
consideration for the supply of the goods or services.
37 . Misleading representations about certain
business activities
(1) A person must not,
in trade or commerce, make a representation that:
(a) is
false or misleading in a material particular; and
(b)
concerns the profitability, risk or any other material aspect of any business
activity that the person has represented as one that can be, or can be to a
considerable extent, carried on at or from a person’s place of
residence.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, make a representation that:
(a) is
false or misleading in a material particular; and
(b)
concerns the profitability, risk or any other material aspect of any business
activity:
(i)
that the person invites (whether by advertisement or
otherwise) other persons to engage or participate in, or to offer or apply to
engage or participate in; and
(ii)
that requires the performance of work by other persons,
or the investment of money by other persons and the performance by them of
work associated with the investment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
38 . Application of provisions of this Division to
information providers
(1) Sections 29, 30,
33, 34 and 37 do not apply to a publication of matter by an information
provider if:
(a) in
any case — the information provider made the publication in the course
of carrying on a business of providing information; or
(b) if
the information provider is the Australian Broadcasting Corporation, the
Special Broadcasting Service Corporation or the holder of a licence granted
under the Broadcasting Services Act 1992 — the publication was by way
of a radio or television broadcast by the information provider.
(2) Subsection (1)
does not apply to a publication of an advertisement.
(3) Subsection (1)
does not apply to a publication of matter in connection with the supply or
possible supply of, or the promotion by any means of the supply or use of,
goods or services (the publicised goods or services ), if:
(a) the
publicised goods or services were goods or services of a kind supplied by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who supplies goods or services of the same kind
as the publicised goods or services; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
supplies goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1)
does not apply to a publication of matter in connection with the sale or
grant, or possible sale or grant, of, or the promotion by any means of the
sale or grant of, interests in land (the publicised interests in land ), if:
(a) the
publicised interests in land were interests of a kind sold or granted by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who sells or grants interests of the same kind as
the publicised interests in land; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
sells or grants interests of the same kind as the publicised interests in
land.
Division 2 — Unsolicited supplies
(1) A person must not
send a credit card or a debit card, or an article that may be used as a credit
card and a debit card, to another person except:
(a)
pursuant to a written request by the person who will be under a liability to
the person who issued the card or article in respect of the use of the card or
article; or
(b) in
renewal or replacement of, or in substitution for:
(i)
a card or article of the same kind previously sent to the
other person pursuant to a written request by the person who was under a
liability, to the person who issued the card previously so sent, in respect of
the use of that card; or
(ii)
a card or article of the same kind previously sent to the
other person and used for a purpose for which it was intended to be used.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1)
does not apply unless the card or article is sent by or on behalf of the
person who issued it.
(3) A person must not
take any action that enables another person who has a credit card to use the
card as a debit card, except in accordance with the other person’s
written request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) A person must not
take any action that enables another person who has a debit card to use the
card as a credit card, except in accordance with the other person’s
written request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(5) A credit card is
an article that is one or more of the following:
(a) an
article of a kind commonly known as a credit card;
(b) a
similar article intended for use in obtaining cash, goods or services on
credit;
(c) an
article of a kind that persons carrying on business commonly issue to their
customers, or prospective customers, for use in obtaining goods or services
from those persons on credit;
and includes an
article that may be used as an article referred to in paragraph (a), (b) or
(c).
(6) A debit card is:
(a) an
article intended for use by a person in obtaining access to an account that is
held by the person for the purpose of withdrawing or depositing cash or
obtaining goods or services; or
(b) an
article that may be used as an article referred to in paragraph (a).
40 . Assertion of right to payment for unsolicited
goods or services
(1) A person must not,
in trade or commerce, assert a right to payment from another person for
unsolicited goods unless the person has reasonable cause to believe that there
is a right to the payment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, assert a right to payment from another person for
unsolicited services unless the person has reasonable cause to believe that
there is a right to the payment.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not,
in trade or commerce, send to another person an invoice or other document
that:
(a)
states the amount of a payment, or sets out the charge, for unsolicited goods
or unsolicited services; and
(b) does
not contain a warning statement that complies with the requirements set out in
the regulations;
unless the person has
reasonable cause to believe that there is a right to the payment or charge.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding
against a person in relation to a contravention of this section, the person
bears the onus of proving that the person had reasonable cause to believe that
there was a right to the payment or charge.
41 . Liability etc. of recipient for unsolicited
goods
(1) If a person, in
trade or commerce, supplies unsolicited goods to another person, the other
person:
(a) is
not liable to make any payment for the goods; and
(b) is
not liable for loss of or damage to the goods, other than loss or damage
resulting from the other person doing a wilful and unlawful act in relation to
the goods during the recovery period.
(2) If a person sends,
in trade or commerce, unsolicited goods to another person:
(a)
neither the sender nor any person claiming under the sender is entitled, after
the end of the recovery period, to take action for the recovery of the goods
from the other person; and
(b) at
the end of the recovery period, the goods become, by force of this section,
the property of the other person freed and discharged from all liens and
charges of any description.
(3) However,
subsection (2) does not apply to or in relation to unsolicited goods sent to a
person if:
(a) the
person has, at any time during the recovery period, unreasonably refused to
permit the sender or the owner of the goods to take possession of the goods;
or
(b) the
sender or the owner of the goods has within the recovery period taken
possession of the goods; or
(c) the
goods were received by the person in circumstances in which the person knew,
or might reasonably be expected to have known, that the goods were not
intended for him or her.
(4) The recovery
period is whichever of the following periods ends first:
(a) the
period of 3 months starting on the day after the day on which the person
received the goods;
(b) if
the person who receives the unsolicited goods gives notice with respect to the
goods to the supplier or sender in accordance with subsection (5) — the
period of one month starting on the day after the day on which the notice is
given.
(5) A notice under
subsection (4)(b):
(a) must
be in writing; and
(b) must
state the name and address of the person who received the goods; and
(c) must
state the address at which possession may be taken of the goods, if it is not
the address of the person; and
(d) must
contain a statement to the effect that the goods are unsolicited goods.
42 . Liability of recipient for unsolicited
services
If a person, in trade
or commerce, supplies, or purports to supply but does not supply, unsolicited
services to another person, the other person:
(a) is
not liable to make any payment for the services; and
(b) is
not liable for loss or damage as a result of the supply or purported supply of
the services.
43 . Assertion of right to payment for
unauthorised entries or advertisements
(1) A person must not
assert a right to payment from another person of a charge for placing, in a
publication, an entry or advertisement relating to:
(a) the
other person; or
(b) the
other person’s profession, business, trade or occupation;
unless the person
knows, or has reasonable cause to believe, that the other person authorised
the placing of the entry or advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not
send to another person an invoice or other document that:
(a)
states the amount of a payment, or sets out the charge, for placing, in a
publication, an entry or advertisement relating to:
(i)
the other person; or
(ii)
the other person’s profession, business, trade or
occupation; and
(b) does
not contain a warning statement that complies with the requirements set out in
the regulations;
unless the person
knows, or has reasonable cause to believe, that the other person authorised
the placing of the entry or advertisement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Subsections (1)
and (2) do not apply to an entry or advertisement that is placed in a
publication published by a person who is:
(a) the
publisher of a publication that has an audited circulation of 10,000 copies or
more per week, as confirmed by the most recent audit of the publication by a
body specified in the regulations; or
(b) a
body corporate related to such a publisher; or
(c) the
Commonwealth, a State or a Territory, or an authority of the Commonwealth, a
State or a Territory; or
(d) a
person specified in the regulations.
(4) A person:
(a) is
not liable to make any payment to another person; and
(b) is
entitled to recover by action in a court against another person any payment
made by the person to the other person;
in full or part
satisfaction of a charge for placing, in a publication, an entry or
advertisement, unless the person authorised the placing of the entry or
advertisement.
(5) A person is not
taken for the purposes of this section to have authorised the placing of the
entry or advertisement, unless:
(a) a
document authorising the placing of the entry or advertisement has been signed
by the person or by another person authorised by him or her; and
(b) a
copy of the document has been given to the person before the right to payment
of a charge for the placing of the entry or advertisement is asserted; and
(c) the
document specifies:
(i)
the name and address of the person publishing the entry
or advertisement; and
(ii)
particulars of the entry or advertisement; and
(iii)
the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is to be, calculated.
(6) In a proceeding
against a person in relation to a contravention of this section, the person
bears the onus of proving that the person knew or had reasonable cause to
believe that the person against whom a right to payment was asserted had
authorised the placing of the entry or advertisement.
44 . Participation in pyramid schemes
(1) A person must not
participate in a pyramid scheme.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not
induce, or attempt to induce, another person to participate in a pyramid
scheme.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) To participate in
a pyramid scheme is:
(a) to
establish or promote the scheme (whether alone or together with another
person); or
(b) to
take part in the scheme in any capacity (whether or not as an employee or
agent of a person who establishes or promotes the scheme, or who otherwise
takes part in the scheme).
45 . Meaning of pyramid scheme
(1) A pyramid scheme
is a scheme with both of the following characteristics:
(a) to
take part in the scheme, some or all new participants must provide, to another
participant or participants in the scheme, either of the following (a
participation payment ):
(i)
a financial or non-financial benefit to, or for the
benefit of, the other participant or participants;
(ii)
a financial or non-financial benefit partly to, or for
the benefit of, the other participant or participants and partly to, or for
the benefit of, other persons;
(b) the
participation payments are entirely or substantially induced by the prospect
held out to new participants that they will be entitled, in relation to the
introduction to the scheme of further new participants, to be provided with
either of the following (a recruitment payment ):
(i)
a financial or non-financial benefit to, or for the
benefit of, new participants;
(ii)
a financial or non-financial benefit partly to, or for
the benefit of, new participants and partly to, or for the benefit of, other
persons.
(2) A new participant
includes a person who has applied, or been invited, to participate in the
scheme.
(3) A scheme may be a
pyramid scheme:
(a) no
matter who holds out to new participants the prospect of entitlement to
recruitment payments; and
(b) no
matter who is to make recruitment payments to new participants; and
(c) no
matter who is to make introductions to the scheme of further new participants.
(4) A scheme may be a
pyramid scheme even if it has any or all of the following characteristics:
(a) the
participation payments may (or must) be made after the new participants begin
to take part in the scheme;
(b)
making a participation payment is not the only requirement for taking part in
the scheme;
(c) the
holding out of the prospect of entitlement to recruitment payments does not
give any new participant a legally enforceable right;
(d)
arrangements for the scheme are not recorded in writing (whether entirely or
partly);
(e) the
scheme involves the marketing of goods or services (or both).
46 . Marketing schemes as pyramid schemes
(1) To decide, for the
purpose of this Schedule, whether a scheme that involves the marketing of
goods or services (or both) is a pyramid scheme, a court must have regard to
the following matters in working out whether participation payments under the
scheme are entirely or substantially induced by the prospect held out to new
participants of entitlement to recruitment payments:
(a)
whether the participation payments bear a reasonable relationship to the value
of the goods or services that participants are entitled to be supplied with
under the scheme (as assessed, if appropriate, by reference to the price of
comparable goods or services available elsewhere);
(b) the
emphasis given in the promotion of the scheme to the entitlement of
participants to the supply of goods or services by comparison with the
emphasis given to their entitlement to recruitment payments.
(2) Subsection (1)
does not limit the matters to which the court may have regard in working out
whether participation payments are entirely or substantially induced by the
prospect held out to new participants of entitlement to recruitment payments.
(1) A person must not,
in trade or commerce, supply goods if:
(a) the
goods have more than one displayed price; and
(b) the
supply takes place for a price that is not the lower, or lowest, of the
displayed prices.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A displayed price
for goods is a price for the goods, or any representation that may reasonably
be inferred to be a representation of a price for the goods:
(a) that
is annexed or affixed to, or is written, printed, stamped or located on, or
otherwise applied to, the goods or any covering, label, reel or thing used in
connection with the goods; or
(b) that
is used in connection with the goods or anything on which the goods are
mounted for display or exposed for supply; or
(c) that
is determined on the basis of anything encoded on or in relation to the goods;
or
(d) that
is published in relation to the goods in a catalogue available to the public
if:
(i)
a time is specified in the catalogue as the time after
which the goods will not be sold at that price and that time has not passed;
or
(ii)
in any other case — the catalogue may reasonably be
regarded as not out-of-date; or
(e) that
is in any other way represented in a manner from which it may reasonably be
inferred that the price or representation is applicable to the goods;
and includes such a
price or representation that is partly obscured by another such price or
representation that is written, stamped or located partly over that price or
representation.
(3) If:
(a) a
price or representation is included in a catalogue; and
(b) the
catalogue is expressed to apply only to goods supplied at a specified
location, or in a specified region;
the price or
representation is taken, for the purposes of subsection (2)(d), not to have
been made in relation to supply of the goods at a different location, or in a
different region, as the case may be.
(4) Despite subsection
(2), a price or representation is not a displayed price for goods if:
(a) the
price or representation is wholly obscured by another such price or
representation that is written, stamped or located wholly over that price or
representation; or
(b) the
price or representation:
(i)
is expressed as a price per unit of mass, volume, length
or other unit of measure; and
(ii)
is presented as an alternative means of expressing the
price for supply of the goods that is a displayed price for the goods; or
(c) the
price or representation is expressed as an amount in a currency other than
Australian currency; or
(d) the
price or representation is expressed in a way that is unlikely to be
interpreted as an amount of Australian currency.
(5) Despite subsection
(2), a displayed price for goods that is a displayed price because it has been
published in a catalogue or advertisement ceases to be a displayed price for
the goods if:
(a) the
displayed price is retracted; and
(b) the
retraction is published in a manner that has at least a similar circulation or
audience as the catalogue or advertisement.
48 . Single price to be specified in certain
circumstances
(1) A person must not,
in trade or commerce, in connection with:
(a) the
supply, or possible supply, to another person of goods or services of a kind
ordinarily acquired for personal, domestic or household use or consumption; or
(b) the
promotion by any means of the supply to another person, or of the use by
another person, of goods or services of a kind ordinarily acquired for
personal, domestic or household use or consumption;
make a representation
with respect to an amount that, if paid, would constitute a part of the
consideration for the supply of the goods or services unless the person also
specifies, in a prominent way and as a single figure, the single price for the
goods or services.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person is not
required to include, in the single price for goods, a charge that is payable
in relation to sending the goods from the supplier to the other person.
(3) However, if:
(a) the
person does not include in the single price a charge that is payable in
relation to sending the goods from the supplier to the other person; and
(b) the
person knows, at the time of the representation, the minimum amount of a
charge in relation to sending the goods from the supplier to the other person
that must be paid by the other person;
the person must not
make the representation referred to in subsection (1) unless the person also
specifies that minimum amount.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) Subsection (1)
does not apply if the representation is made exclusively to a body corporate.
(4A) Subsection (1)
does not apply if:
(a) the
representation is in a class of representations prescribed by the regulations;
and
(b) the
conditions (if any) prescribed by the regulations in relation to
representations in that class have been complied with.
Note: If the
representation is in a class prescribed for paragraph (a) of this subsection
and subsection (1) is complied with in relation to the representation, there
is no need to also comply with any conditions prescribed for paragraph (b) of
this subsection.
(5) For the purposes
of subsection (1), the person is taken not to have specified a single price
for the goods or services in a prominent way unless the single price is at
least as prominent as the most prominent of the parts of the consideration for
the supply.
(6) Subsection (5)
does not apply in relation to services to be supplied under a contract if:
(a) the
contract provides for the supply of the services for the term of the contract;
and
(b) the
contract provides for periodic payments for the services to be made during the
term of the contract; and
(c) if
the contract also provides for the supply of goods — the goods are
directly related to the supply of the services.
(7) The single price
is the minimum quantifiable consideration for the supply of the goods or
services at the time of the representation, including each of the following
amounts (if any) that is quantifiable at that time:
(a) a
charge of any description payable to the person making the representation by
another person unless:
(i)
the charge is payable at the option of the other person;
and
(ii)
at or before the time of the representation, the other
person has either deselected the charge or not expressly requested that the
charge be applied;
(b) the
amount which reflects any tax, duty, fee, levy or charge imposed on the person
making the representation in relation to the supply;
(c) any
amount paid or payable by the person making the representation in relation to
the supply with respect to any tax, duty, fee, levy or charge if:
(i)
the amount is paid or payable under an agreement or
arrangement made under a law of the Commonwealth, a State or a Territory; and
(ii)
the tax, duty, fee, levy or charge would have otherwise
been payable by another person in relation to the supply.
Example 1: An airline
advertises a flight for sale. Persons have the option of paying for a carbon
offset. If the carbon offset is preselected on the airline’s online
booking system, the single price for the flight must include the carbon offset
charge. This is because the person has not, at or before the time of the
representation, deselected the charge on the online booking site. If the
person deselects the optional carbon offset charge later in the online booking
process, the single price does not need to include the carbon offset charge
after the charge is deselected because of the exception provided by paragraphs
(a)(i) and (ii).
Example 2: The GST may
be an example of an amount covered by paragraph (b).
Example 3: The
passenger movement charge imposed under the Passenger Movement Charge Act 1978
may be an example of an amount covered by paragraph (c). Under an arrangement
under section 10 of the Passenger Movement Charge Collection Act 1978 ,
airlines may pay an amount equal to the charge that would otherwise be payable
by passengers departing Australia.
Division 5 — Other unfair practices
A person must not, in
trade or commerce, induce a consumer to acquire goods or services by
representing that the consumer will, after the contract for the acquisition of
the goods or services is made, receive a rebate, commission or other benefit
in return for:
(a)
giving the person the names of prospective customers; or
(b)
otherwise assisting the person to supply goods or services to other consumers;
if receipt of the
rebate, commission or other benefit is contingent on an event occurring after
that contract is made.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
(1) A person must not
use physical force, or undue harassment or coercion, in connection with:
(a) the
supply or possible supply of goods or services; or
(b) the
payment for goods or services; or
(c) the
sale or grant, or the possible sale or grant, of an interest in land; or
(d) the
payment for an interest in land.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsections (1)(c)
and (d) do not affect the application of any other provision of Part 2-1 or
this Part in relation to the supply or acquisition, or the possible supply or
acquisition, of interests in land.
Part 3-2 — Consumer transactions
Division 1 — Consumer guarantees
Subdivision A — Guarantees relating to the supply of goods
(1) If a person (the
supplier ) supplies goods to a consumer, there is a guarantee that the
supplier will have a right to dispose of the property in the goods when that
property is to pass to the consumer.
(2) Subsection (1)
does not apply to a supply (a supply of limited title ) if an intention that
the supplier of the goods should transfer only such title as the supplier, or
another person, may have:
(a)
appears from the contract for the supply; or
(b) is
to be inferred from the circumstances of that contract.
(3) This section does
not apply if the supply is a supply by way of hire or lease.
52 . Guarantee as to undisturbed possession
(1) If:
(a) a
person (the supplier ) supplies goods to a consumer; and
(b) the
supply is not a supply of limited title;
there is a guarantee
that the consumer has the right to undisturbed possession of the goods.
(2) Subsection (1)
does not apply to the extent that the consumer’s undisturbed possession
of the goods may be lawfully disturbed by a person who is entitled to the
benefit of any security, charge or encumbrance disclosed to the consumer
before the consumer agreed to the supply.
(3) If:
(a) a
person (the supplier ) supplies goods to a consumer; and
(b) the
supply is a supply of limited title;
there is a guarantee
that the following persons will not disturb the consumer’s possession of
the goods:
(c) the
supplier;
(d) if
the parties to the contract for the supply intend that the supplier should
transfer only such title as another person may have — that other person;
(e)
anyone claiming through or under the supplier or that other person (otherwise
than under a security, charge or encumbrance disclosed to the consumer before
the consumer agreed to the supply).
(4) This section
applies to a supply by way of hire or lease only for the period of the hire or
lease.
53 . Guarantee as to undisclosed securities etc.
(1) If:
(a) a
person (the supplier ) supplies goods to a consumer; and
(b) the
supply is not a supply of limited title;
there is a guarantee
that:
(c) the
goods are free from any security, charge or encumbrance:
(i)
that was not disclosed to the consumer, in writing,
before the consumer agreed to the supply; or
(ii)
that was not created by or with the express consent of
the consumer; and
(d) the
goods will remain free from such a security, charge or encumbrance until the
time when the property in the goods passes to the consumer.
(2) A supplier does
not fail to comply with the guarantee only because of the existence of a
floating charge over the supplier’s assets unless and until the charge
becomes fixed and enforceable by the person to whom the charge is given.
Note: Section 339 of
the Personal Property Securities Act 2009 affects the meaning of the
references in this subsection to a floating charge and a fixed charge.
(3) If:
(a) a
person (the supplier ) supplies goods to a consumer; and
(b) the
supply is a supply of limited title;
there is a guarantee
that all securities, charges or encumbrances known to the supplier, and not
known to the consumer, were disclosed to the consumer before the consumer
agreed to the supply.
(4) This section does
not apply if the supply is a supply by way of hire or lease.
54 . Guarantee as to acceptable quality
(1) If:
(a) a
person supplies, in trade or commerce, goods to a consumer; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the goods are of acceptable quality.
(2) Goods are of
acceptable quality if they are as:
(a) fit
for all the purposes for which goods of that kind are commonly supplied; and
(b)
acceptable in appearance and finish; and
(c) free
from defects; and
(d)
safe; and
(e)
durable;
as a reasonable
consumer fully acquainted with the state and condition of the goods (including
any hidden defects of the goods), would regard as acceptable having regard to
the matters in subsection (3).
(3) The matters for
the purposes of subsection (2) are:
(a) the
nature of the goods; and
(b) the
price of the goods (if relevant); and
(c) any
statements made about the goods on any packaging or label on the goods; and
(d) any
representation made about the goods by the supplier or manufacturer of the
goods; and
(e) any
other relevant circumstances relating to the supply of the goods.
(4) If:
(a)
goods supplied to a consumer are not of acceptable quality; and
(b) the
only reason or reasons why they are not of acceptable quality were
specifically drawn to the consumer’s attention before the consumer
agreed to the supply;
the goods are taken to
be of acceptable quality.
(5) If:
(a)
goods are displayed for sale or hire; and
(b) the
goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons
why they are not of acceptable quality are taken, for the purposes of
subsection (4), to have been specifically drawn to a consumer’s
attention if those reasons were disclosed on a written notice that was
displayed with the goods and that was transparent.
(6) Goods do not fail
to be of acceptable quality if:
(a) the
consumer to whom they are supplied causes them to become of unacceptable
quality, or fails to take reasonable steps to prevent them from becoming of
unacceptable quality; and
(b) they
are damaged by abnormal use.
(7) Goods do not fail
to be of acceptable quality if:
(a) the
consumer acquiring the goods examines them before the consumer agrees to the
supply of the goods; and
(b) the
examination ought reasonably to have revealed that the goods were not of
acceptable quality.
55 . Guarantee as to fitness for any disclosed
purpose etc.
(1) If:
(a) a
person (the supplier ) supplies, in trade or commerce, goods to a consumer;
and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the goods are reasonably fit for any disclosed purpose, and for any
purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed
purpose is a particular purpose (whether or not that purpose is a purpose for
which the goods are commonly supplied) for which the goods are being acquired
by the consumer and that:
(a) the
consumer makes known, expressly or by implication, to:
(i)
the supplier; or
(ii)
a person by whom any prior negotiations or arrangements
in relation to the acquisition of the goods were conducted or made; or
(b) the
consumer makes known to the manufacturer of the goods either directly or
through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does
not apply if the circumstances show that the consumer did not rely on, or that
it was unreasonable for the consumer to rely on, the skill or judgment of the
supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer,
as the case may be.
56 . Guarantee relating to the supply of goods by
description
(1) If:
(a) a
person supplies, in trade or commerce, goods by description to a consumer; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the goods correspond with the description.
(2) A supply of goods
is not prevented from being a supply by description only because, having been
exposed for sale or hire, they are selected by the consumer.
(3) If goods are
supplied by description as well as by reference to a sample or demonstration
model, the guarantees in this section and in section 57 both apply.
57 . Guarantees relating to the supply of goods by
sample or demonstration model
(1) If:
(a) a
person supplies, in trade or commerce, goods to a consumer by reference to a
sample or demonstration model; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that:
(c) the
goods correspond with the sample or demonstration model in quality, state or
condition; and
(d) if
the goods are supplied by reference to a sample — the consumer will have
a reasonable opportunity to compare the goods with the sample; and
(e) the
goods are free from any defect that:
(i)
would not be apparent on reasonable examination of the
sample or demonstration model; and
(ii)
would cause the goods not to be of acceptable quality.
(2) If goods are
supplied by reference to a sample or demonstration model as well as by
description, the guarantees in section 56 and in this section both apply.
58 . Guarantee as to repairs and spare parts
(1) If:
(a) a
person supplies, in trade or commerce, goods to a consumer; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the manufacturer of the goods will take reasonable action to ensure that
facilities for the repair of the goods, and parts for the goods, are
reasonably available for a reasonable period after the goods are supplied.
(2) This section does
not apply if the manufacturer took reasonable action to ensure that the
consumer would be given written notice, at or before the time when the
consumer agrees to the supply of the goods, that:
(a)
facilities for the repair of the goods would not be available or would not be
available after a specified period; or
(b)
parts for the goods would not be available or would not be available after a
specified period.
59 . Guarantee as to express warranties
(1) If:
(a) a
person supplies, in trade or commerce, goods to a consumer; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the manufacturer of the goods will comply with any express warranty given
or made by the manufacturer in relation to the goods.
(2) If:
(a) a
person supplies, in trade or commerce, goods to a consumer; and
(b) the
supply does not occur by way of sale by auction;
there is a guarantee
that the supplier will comply with any express warranty given or made by the
supplier in relation to the goods.
Subdivision B — Guarantees relating to the supply of services
60 . Guarantee as to due care and skill
If a person supplies,
in trade or commerce, services to a consumer, there is a guarantee that the
services will be rendered with due care and skill.
61 . Guarantees as to fitness for a particular
purpose etc.
(1) If:
(a) a
person (the supplier ) supplies, in trade or commerce, services to a consumer;
and
(b) the
consumer, expressly or by implication, makes known to the supplier any
particular purpose for which the services are being acquired by the consumer;
there is a guarantee
that the services, and any product resulting from the services, will be
reasonably fit for that purpose.
(2) If:
(a) a
person (the supplier ) supplies, in trade or commerce, services to a consumer;
and
(b) the
consumer makes known, expressly or by implication, to:
(i)
the supplier; or
(ii)
a person by whom any prior negotiations or arrangements
in relation to the acquisition of the services were conducted or made;
the result that the
consumer wishes the services to achieve;
there is a guarantee
that the services, and any product resulting from the services, will be of
such a nature, and quality, state or condition, that they might reasonably be
expected to achieve that result.
(3) This section does
not apply if the circumstances show that the consumer did not rely on, or that
it was unreasonable for the consumer to rely on, the skill or judgment of the
supplier.
(4) This section does
not apply to a supply of services of a professional nature by a qualified
architect or engineer.
62 . Guarantee as to reasonable time for supply
If:
(a) a
person (the supplier ) supplies, in trade or commerce, services to a consumer;
and
(b) the
time within which the services are to be supplied:
(i)
is not fixed by the contract for the supply of the
services; or
(ii)
is not to be determined in a manner agreed to by the
consumer and supplier;
there is a guarantee
that the services will be supplied within a reasonable time.
63 . Services to which this Subdivision does not
apply
(1) This Subdivision
does not apply to services that are, or are to be, supplied under:
(a) a
contract for or in relation to the transportation or storage of goods for the
purposes of a business, trade, profession or occupation carried on or engaged
in by the person for whom the goods are transported or stored; or
(b) a
contract of insurance.
(2) To avoid doubt,
subsection (1)(a) does not apply if the consignee of the goods is not carrying
on or engaged in a business, trade, profession or occupation in relation to
the goods.
Note: This subsection
was inserted as a response to the decision of the High Court of Australia in
Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17.
Subdivision C — Guarantees not to be excluded etc. by contract
64 . Guarantees not to be excluded etc. by
contract
(1) A term of a
contract (including a term that is not set out in the contract but is
incorporated in the contract by another term of the contract) is void to the
extent that the term purports to exclude, restrict or modify, or has the
effect of excluding, restricting or modifying:
(a) the
application of all or any of the provisions of this Division; or
(b) the
exercise of a right conferred by such a provision; or
(c) any
liability of a person for a failure to comply with a guarantee that applies
under this Division to a supply of goods or services.
(2) A term of a
contract is not taken, for the purposes of this section, to exclude, restrict
or modify the application of a provision of this Division unless the term does
so expressly or is inconsistent with the provision.
64A . Limitation of liability for failures to
comply with guarantees
(1) A term of a
contract for the supply by a person of goods other than goods of a kind
ordinarily acquired for personal, domestic or household use or consumption is
not void under section 64 merely because the term limits the person’s
liability for failure to comply with a guarantee (other than a guarantee under
section 51, 52 or 53) to one or more of the following:
(a) the
replacement of the goods or the supply of equivalent goods;
(b) the
repair of the goods;
(c) the
payment of the cost of replacing the goods or of acquiring equivalent goods;
(d) the
payment of the cost of having the goods repaired.
(2) A term of a
contract for the supply by a person of services other than services of a kind
ordinarily acquired for personal, domestic or household use or consumption is
not void under section 64 merely because the term limits the person’s
liability for failure to comply with a guarantee to:
(a) the
supplying of the services again; or
(b) the
payment of the cost of having the services supplied again.
(3) This section does
not apply in relation to a term of a contract if the person to whom the goods
or services were supplied establishes that it is not fair or reasonable for
the person who supplied the goods or services to rely on that term of the
contract.
(4) In determining for
the purposes of subsection (3) whether or not reliance on a term of a contract
is fair or reasonable, a court is to have regard to all the circumstances of
the case, and in particular to the following matters:
(a) the
strength of the bargaining positions of the person who supplied the goods or
services and the person to whom the goods or services were supplied (the buyer
) relative to each other, taking into account, among other things, the
availability of equivalent goods or services and suitable alternative sources
of supply;
(b)
whether the buyer received an inducement to agree to the term or, in agreeing
to the term, had an opportunity of acquiring the goods or services or
equivalent goods or services from any source of supply under a contract that
did not include that term;
(c)
whether the buyer knew or ought reasonably to have known of the existence and
extent of the term (having regard, among other things, to any custom of the
trade and any previous course of dealing between the parties);
(d) in
the case of the supply of goods, whether the goods were manufactured,
processed or adapted to the special order of the buyer.
65 . Application of this Division to supplies of
gas, electricity and telecommunications
(1) This Division does
not apply to a supply if the supply:
(a) is a
supply of a kind specified in the regulations; and
(b) is a
supply of gas, electricity or a telecommunications service.
(2) A
telecommunications service is a service for carrying communications by means
of guided or unguided electromagnetic energy or both.
(1) The Commonwealth
Minister may determine, in writing, that persons (the suppliers ) who make
supplies, or supplies of a specified kind, to which guarantees apply under
this Division are required to display, in accordance with the determination, a
notice that meets the requirements of the determination.
(2) A supplier who
makes a supply to a consumer to which a guarantee applies under this Division,
and to which such a determination relates, must ensure that a notice that
meets those requirements is, in accordance with the determination:
(a) if
the consumer takes delivery of the goods or services at the supplier’s
premises — displayed at those premises; or
(b)
otherwise — drawn to the consumer’s attention before the consumer
agrees to the supply of the goods.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Without limiting
subsection (1), a determination under that subsection may do all or any of the
following:
(a)
require the notice to include specified information about the application of
all or any of the provisions of this Division and Part 5-4;
(b)
specify where the notice must be displayed;
(c)
specify how the notice must be drawn to the attention of consumers;
(d)
specify requirements as to the form of the notice.
If:
(a) the
proper law of a contract for the supply of goods or services to a consumer
would be the law of any part of Australia but for a term of the contract that
provides otherwise; or
(b) a
contract for the supply of goods or services to a consumer contains a term
that purports to substitute, or has the effect of substituting, the following
provisions for all or any of the provisions of this Division:
(i)
the provisions of the law of a country other than
Australia;
(ii)
the provisions of the law of a State or a Territory;
the provisions of this
Division apply in relation to the supply under the contract despite that term.
68 . Convention on Contracts for the International
Sale of Goods
The provisions of the
United Nations Convention on Contracts for the International Sale of Goods,
done at Vienna on 11 April 1980, as amended and in force for Australia from
time to time, prevail over the provisions of this Division to the extent of
any inconsistency.
Note: The text of the
Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32).
In 2010, the text of a Convention in the Australian Treaty Series was
accessible through the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Division 2 — Unsolicited consumer agreements
69 . Meaning of unsolicited consumer agreement
(1) An agreement is an
unsolicited consumer agreement if:
(a) it
is for the supply, in trade or commerce, of goods or services to a consumer;
and
(b) it
is made as a result of negotiations between a dealer and the consumer:
(i)
in each other’s presence at a place other than the
business or trade premises of the supplier of the goods or services; or
(ii)
by telephone;
whether or not they
are the only negotiations that precede the making of the agreement; and
(c) the
consumer did not invite the dealer to come to that place, or to make a
telephone call, for the purposes of entering into negotiations relating to the
supply of those goods or services (whether or not the consumer made such an
invitation in relation to a different supply); and
(d) the
total price paid or payable by the consumer under the agreement:
(i)
is not ascertainable at the time the agreement is made;
or
(ii)
if it is ascertainable at that time — is more than
$100 or such other amount prescribed by the regulations.
(1AA) To avoid doubt,
a place mentioned in subsection (1)(b)(i) may be a public place, and need not
be a place the dealer cannot enter without the consumer’s consent or
invitation.
Note:
This subsection was inserted as a response to the decision of
the Federal Court of Australia in Australian Competition and Consumer
Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403.
(1A) The consumer is
not taken, for the purposes of subsection (1)(c), to have invited the dealer
to come to that place, or to make a telephone call, merely because the
consumer has:
(a)
given his or her name or contact details other than for the predominant
purpose of entering into negotiations relating to the supply of the goods or
services referred to in subsection (1)(c); or
(b)
contacted the dealer in connection with an unsuccessful attempt by the dealer
to contact the consumer.
(2) An invitation
merely to quote a price for a supply is not taken, for the purposes of
subsection (1)(c), to be an invitation to enter into negotiations for a
supply.
(3) An agreement is
also an unsolicited consumer agreement if it is an agreement of a kind that
the regulations provide are unsolicited consumer agreements.
(4) However, despite
subsections (1) and (3), an agreement is not an unsolicited consumer agreement
if it is an agreement of a kind that the regulations provide are not
unsolicited consumer agreements.
70 . Presumption that agreements are unsolicited
consumer agreements
(1) In a proceeding
relating to a contravention or possible contravention of this Division (other
than a criminal proceeding), an agreement is presumed to be an unsolicited
consumer agreement if:
(a) a
party to the proceeding alleges that the agreement is an unsolicited consumer
agreement; and
(b) no
other party to the proceeding proves that the agreement is not an unsolicited
consumer agreement.
(2) In a proceeding
relating to a contravention or possible contravention of this Division (other
than a criminal proceeding), it is presumed that a proposed agreement would be
an unsolicited consumer agreement if it were made if:
(a) a
party to the proceeding alleges that the proposed agreement would be an
unsolicited consumer agreement if it were made; and
(b) no
other party to the proceeding proves that the proposed agreement would not be
an unsolicited consumer agreement if it were made.
A dealer is a person
who, in trade or commerce:
(a)
enters into negotiations with a consumer with a view to making an agreement
for the supply of goods or services to the consumer; or
(b)
calls on, or telephones, a consumer for the purpose of entering into such
negotiations;
whether or not that
person is, or is to be, the supplier of the goods or services.
A negotiation , in
relation to an agreement or a proposed agreement, includes any discussion or
dealing directed towards the making of the agreement or proposed agreement
(whether or not the terms of the agreement or proposed agreement are open to
any discussion or dealing).
Subdivision B — Negotiating unsolicited consumer agreements
73 . Permitted hours for negotiating an
unsolicited consumer agreement
(1) A dealer must not
call on a person for the purpose of negotiating an unsolicited consumer
agreement, or for an incidental or related purpose:
(a) at
any time on a Sunday or a public holiday; or
(b)
before 9 am on any other day; or
(c)
after 6 pm on any other day (or after 5 pm if the other day is a Saturday).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1)
does not apply if the dealer calls on the person in accordance with consent
that:
(a) was
given by the person to the dealer or a person acting on the dealer’s
behalf; and
(b) was
not given in the presence of the dealer or a person acting on the
dealer’s behalf.
Note: The
Do Not Call Register Act 2006 may apply to a telephone call made for the
purpose of negotiating an unsolicited consumer agreement.
74 . Disclosing purpose and identity
A dealer who calls on
a person for the purpose of negotiating an unsolicited consumer agreement, or
for an incidental or related purpose, must, as soon as practicable and in any
event before starting to negotiate:
(a)
clearly advise the person that the dealer’s purpose is to seek the
person’s agreement to a supply of the goods or services concerned; and
(b)
clearly advise the person that the dealer is obliged to leave the premises
immediately on request; and
(c)
provide to the person such information relating to the dealer’s identity
as is prescribed by the regulations.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
75 . Ceasing to negotiate on request
(1) A dealer who calls
on a person at any premises for the purpose of negotiating an unsolicited
consumer agreement, or for an incidental or related purpose, must leave the
premises immediately on the request of:
(a) the
occupier of the premises, or any person acting with the actual or apparent
authority of the occupier; or
(b) the
person (the prospective consumer ) with whom the negotiations are being
conducted.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If the prospective
consumer makes such a request, the dealer must not contact the prospective
consumer for the purpose of negotiating an unsolicited consumer agreement (or
for an incidental or related purpose) for at least 30 days after the
prospective consumer makes the request.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If the dealer is
not, or is not to be, the supplier of the goods or services to which the
negotiations relate:
(a)
subsection (2) applies to that supplier, and any person acting on behalf of
that supplier, in the same way that it applies to the dealer; but
(b)
subsection (2) does not apply to the dealer contacting the prospective
customer in relation to a supply by another supplier.
76 . Informing person of termination period etc.
A dealer must not make
an unsolicited consumer agreement with a person unless:
(a)
before the agreement is made, the person is given information as to the
following:
(i)
the person’s right to terminate the agreement
during the termination period;
(ii)
the way in which the person may exercise that right;
(iii)
such other matters as are prescribed by the regulations;
and
(b) if
the agreement is made in the presence of both the dealer and the person
— the person is given the information in writing; and
(c) if
the agreement is made by telephone — the person is given the information
by telephone, and is subsequently given the information in writing; and
(d) the
form in which, and the way in which, the person is given the information
complies with any other requirements prescribed by the regulations.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
77 . Liability of suppliers for contraventions by
dealers
If:
(a) a
dealer contravenes a provision of this Subdivision in relation to an
unsolicited consumer agreement; and
(b) the
dealer is not, or is not to be, the supplier of the goods or services to which
the agreement relates;
the supplier of the
goods or services is also taken to have contravened that provision in relation
to the agreement.
Subdivision C — Requirements for unsolicited consumer agreements etc.
78 . Requirement to give document to the consumer
(1) If an unsolicited
consumer agreement was not negotiated by telephone, the dealer who negotiated
the agreement must give a copy of the agreement to the consumer under the
agreement immediately after the consumer signs the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If an unsolicited
consumer agreement was negotiated by telephone, the dealer who negotiated the
agreement must, within 5 business days after the agreement was made or such
longer period agreed by the parties, give to the consumer under the agreement:
(a)
personally; or
(b) by
post; or
(c) with
the consumer’s consent — by electronic communication;
a document (the
agreement document ) evidencing the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) An unsolicited
consumer agreement was negotiated by telephone if the negotiations that
resulted in the making of the agreement took place by telephone (whether or
not other negotiations preceded the making of the agreement).
79 . Requirements for all unsolicited consumer
agreements etc.
The supplier under an
unsolicited consumer agreement must ensure that the agreement, or (if the
agreement was negotiated by telephone) the agreement document, complies with
the following requirements:
(a) it
must set out in full all the terms of the agreement, including:
(i)
the total consideration to be paid or provided by the
consumer under the agreement or, if the total consideration is not
ascertainable at the time the agreement is made, the way in which it is to be
calculated; and
(ii)
any postal or delivery charges to be paid by the
consumer;
(b) its
front page must include a notice that:
(i)
conspicuously and prominently informs the consumer of the
consumer’s right to terminate the agreement; and
(ii)
conspicuously and prominently sets out any other
information prescribed by the regulations; and
(iii)
complies with any other requirements prescribed by the
regulations;
(c) it
must be accompanied by a notice that:
(i)
may be used by the consumer to terminate the agreement;
and
(ii)
complies with any requirements prescribed by the
regulations;
(d) it
must conspicuously and prominently set out in full:
(i)
the supplier’s name; and
(ii)
if the supplier has an ABN — the supplier’s
ABN; and
(iii)
if the supplier does not have an ABN but has an ACN
— the supplier’s ACN; and
(iv)
the supplier’s business address (not being a post
box) or, if the supplier does not have a business address, the
supplier’s residential address; and
(v)
if the supplier has an email address — the
supplier’s email address; and
(vi)
if the supplier has a fax number — the
supplier’s fax number;
(e) it
must be printed clearly or typewritten (apart from any amendments to the
printed or typewritten form, which may be handwritten);
(f) it
must be transparent.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
80 . Additional requirements for unsolicited
consumer agreements not negotiated by telephone
The supplier under an
unsolicited consumer agreement that was not negotiated by telephone must
ensure that, in addition to complying with the requirements of section 79, the
agreement complies with the following requirements:
(a) the
agreement must be signed by the consumer under the agreement;
(b) if
the agreement is signed by a person on the supplier’s behalf — the
agreement must state that the person is acting on the supplier’s behalf,
and must set out in full:
(i)
the person’s name; and
(ii)
the person’s business address (not being a post
box) or, if the person does not have a business address, the person’s
residential address; and
(iii)
if the person has an email address — the
person’s email address.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
81 . Requirements for amendments of unsolicited
consumer agreements
The supplier under an
unsolicited consumer agreement must ensure that any amendments to the
agreement are signed by both parties to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
Subdivision D — Terminating unsolicited consumer agreements
82 . Terminating an unsolicited consumer agreement
during the termination period
(1) The consumer under
an unsolicited consumer agreement may, during the period provided under
subsection (3), terminate the agreement by indicating, in an oral or written
notice to the supplier under the agreement, an intention to terminate the
agreement.
(2) A right of
termination under this section may be exercised:
(a)
despite affirmation of the agreement by the consumer; and
(b) even
though the agreement has been fully executed.
(3) The period during
which the consumer may terminate the agreement is whichever of the following
periods is the longest:
(a) if
the agreement was not negotiated by telephone — the period starting on
the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the agreement was made;
(b) if
the agreement was negotiated by telephone — the period starting on the
day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement;
(c) if
one or more of sections 73 (permitted hours for negotiating an unsolicited
consumer agreement), 74 (disclosing purpose and identity) and 75 (ceasing to
negotiate on request) were contravened in relation to the agreement:
(i)
if the agreement was not negotiated by
telephone—the period starting on the day on which the agreement was made
and ending at the end of the period of 3 months starting on the day after the
day on which the agreement was made; or
(ii)
if the agreement was negotiated by telephone—the
period starting on the day on which the agreement was made and ending at the
end of the period of 3 months starting on the day after the day on which the
consumer was given the agreement document relating to the agreement;
(d) if
one or more of section 76 (informing consumer of termination period), a
provision of Subdivision C (requirements for unsolicited consumer agreements)
and section 86 (prohibition on supplies etc.) were contravened in relation to
the agreement:
(i)
if the agreement was not negotiated by
telephone—the period starting on the day on which the agreement was made
and ending at the end of the period of 6 months starting on the day after the
day on which the agreement was made; or
(ii)
if the agreement was negotiated by telephone—the
period starting on the day on which the agreement was made and ending at the
end of the period of 6 months starting on the day after the day on which the
consumer was given the agreement document relating to the agreement;
(e) such
other period as the agreement provides.
(4) If the notice
under subsection (1) is written, it may be given:
(a) by
delivering it personally to the supplier; or
(b) by
delivering it, or sending it by post, in an envelope addressed to the
supplier, to the supplier’s address referred to in section 79(d)(iv); or
(c) if
the supplier has an email address — by sending it to the
supplier’s email address referred to in section 79(d)(v); or
(d) if
the supplier has a fax number — by faxing it to the supplier’s fax
number referred to in section 79(d)(vi).
(5) A notice under
subsection (1) sent by post to a supplier is taken to have been given to the
supplier at the time of posting.
(6) There are no
requirements relating to the form or content of a notice under subsection (1).
(1) If an unsolicited
consumer agreement is terminated in accordance with section 82:
(a) the
agreement is taken to have been rescinded by mutual consent; and
(b) any
related contract or instrument is void.
(2) A related contract
or instrument , in relation to an unsolicited consumer agreement, is:
(a) any
contract of guarantee or indemnity that is related to the agreement; or
(b) any
instrument related to the agreement that creates a mortgage or charge in
favour of the supplier under the contract or the dealer in relation to the
contract (or a person nominated by the supplier or dealer); or
(c) any
contract or instrument (other than an instrument of a kind referred to in
paragraph (b)) that is collateral or related to the agreement;
but does not include a
tied continuing credit contract (within the meaning of section 127(2) of
Schedule 1 to the National Consumer Credit Protection Act 2009 ), or a tied
loan contract (within the meaning of section 127(3) of that Schedule).
(3) The termination of
an unsolicited consumer agreement has effect for the purposes of section 82
and this section even if:
(a) the
supplier under the agreement has not received the notice of termination; or
(b) the
goods or services supplied under the agreement have been wholly or partly
consumed or used.
84 . Obligations of suppliers on termination
If an unsolicited
consumer agreement is terminated in accordance with section 82, the supplier
under the agreement must, immediately upon being notified of the termination,
return or refund to the consumer under the agreement any consideration (or the
value of any consideration) that the consumer gave under the agreement or a
related contract or instrument.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
85 . Obligations and rights of consumers on
termination
(1) If an unsolicited
consumer agreement is terminated in accordance with section 82, the consumer
under the agreement must, within a reasonable time:
(a)
return to the supplier under the agreement any goods:
(i)
that have been received from the supplier under the
agreement; and
(ii)
that the consumer has not already consumed; or
(b)
notify the supplier of the place where the supplier may collect the goods.
(2) The goods become
the property of the consumer, freed and discharged from all liens and charges
of any description, if:
(a) the
consumer gives notice to the supplier under subsection (1)(b); and
(b) the
supplier does not collect the goods within 30 days after the termination of
the contract.
(3) If:
(a) the
agreement is terminated in accordance with section 82 after the end of:
(i)
if the agreement was not negotiated by telephone —
the period starting on the day on which the agreement was made and ending at
the end of the tenth business day after the day on which the agreement was
made; or
(ii)
if the agreement was negotiated by telephone — the
period starting on the day on which the agreement was made and ending at the
end of the tenth business day after the day on which the consumer was given
the agreement document relating to the agreement; and
(b) the
consumer returns the goods to the supplier, or the supplier collects the
goods, under this section; and
(c) the
consumer has failed to take reasonable care of the goods;
the consumer is liable
to pay compensation to the supplier for the damage to, or depreciation in the
value of, the goods.
(4) The compensation
is recoverable in a court of competent jurisdiction.
(5) However, the
consumer is not liable for any such damage or depreciation attributable to
normal use of the goods or to circumstances beyond the consumer’s
control.
(6) If:
(a) an
unsolicited consumer agreement is terminated in accordance with section 82
after the end of :
(i)
if the agreement was not negotiated by telephone —
the period starting on the day on which the agreement was made and ending at
the end of the tenth business day after the day on which the agreement was
made; or
(ii)
if the agreement was negotiated by telephone — the
period starting on the day on which the agreement was made and ending at the
end of the tenth business day after the day on which the consumer was given
the agreement document relating to the agreement; and
(b)
prior to the termination, but after the end of that period, a service was
supplied under the agreement;
the termination does
not affect any liability of the consumer under the agreement to provide
consideration for the service.
86 . Prohibition on supplies etc.
(1) The supplier under
an unsolicited consumer agreement must not:
(a)
supply to the consumer under the agreement the goods or services to be
supplied under the agreement; or
(b)
accept any payment, or any other consideration, in connection with those goods
or services; or
(c)
require any payment, or any other consideration, in connection with those
goods or services;
during:
(d) if
the agreement was not negotiated by telephone — the period starting on
the day on which the agreement was made and ending at the end of the tenth
business day after the day on which the agreement was made; or
(e) if
the agreement was negotiated by telephone — the period starting on the
day on which the agreement was made and ending at the end of the tenth
business day after the day on which the consumer was given the agreement
document relating to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If the supplier
supplies goods to the consumer in contravention of this section, the consumer
has the same rights in relation to the goods as if the goods were unsolicited
goods.
Note: Section 41 deals
with unsolicited goods.
(3) If the supplier
supplies services to the consumer in contravention of this section, the
consumer has the same rights in relation to the services as if the services
were unsolicited services.
Note: Section 42 deals
with unsolicited services.
87 . Repayment of payments received after
termination
If an unsolicited
consumer agreement is terminated in accordance with section 82, the supplier
under the agreement must immediately refund to the consumer under the
agreement any payment:
(a) that
the consumer, or a person acting on the consumer’s behalf, makes to the
supplier after the termination; and
(b) that
purports to be made under the agreement or a related contract or instrument.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
88 . Prohibition on recovering amounts after
termination
(1) If an unsolicited
consumer agreement is terminated in accordance with section 82, a person must
not:
(a)
bring, or assert an intention to bring, legal proceedings against the
consumer; or
(b)
take, or assert an intention to take, any other action against the consumer;
in relation to an
amount alleged to be payable, under the agreement or a related contract or
instrument, by the consumer under the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(1A) Subsection (1)
does not apply to:
(a)
bringing, or asserting an intention to bring, legal proceedings against the
consumer; or
(b)
taking, or asserting an intention to take, any other action against the
consumer;
to enforce a liability
under section 85(3), or a liability of a kind referred to in section 85(6).
(2) If an unsolicited
consumer agreement is terminated in accordance with section 82, a person must
not, for the purpose of recovering an amount alleged to be payable, under the
agreement or a related contract or instrument, by the consumer under the
agreement:
(a)
place the consumer’s name, or cause the consumer’s name to be
placed, on a list of defaulters or debtors; or
(b)
assert an intention to place the consumer’s name, or cause the
consumer’s name to be placed, on such a list.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) Without limiting
Division 2 of Part 5-2, an injunction granted under that Division may require
a person responsible for keeping a list of defaulters or debtors on which the
consumer’s name has been wrongly placed to remove the name from that
list.
89 . Certain provisions of unsolicited consumer
agreements void
(1) A provision
(however described) of an unsolicited consumer agreement is void if it has the
effect of, or purports to have the effect of:
(a)
excluding, limiting, modifying or restricting a right of the consumer under
the agreement to terminate the agreement under this Division; or
(b)
otherwise excluding, limiting, modifying or restricting the effect or
operation of this Division; or
(c)
making a dispute relating to the agreement, or to a supply to which the
agreement relates, justiciable by a court by which the dispute would not
otherwise be justiciable.
(2) The supplier under
an unsolicited consumer agreement must ensure that the agreement does not
include, or purport to include, a provision (however described) that is, or
would be, void because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) The supplier under
an unsolicited consumer agreement must not attempt to enforce or rely on a
provision (however described) that is void because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(1) The consumer under
an unsolicited consumer agreement is not competent to waive any right
conferred by this Division.
(2) The supplier under
the unsolicited consumer agreement must not induce, or attempt to induce, the
consumer to waive any right conferred by this Division.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
91 . Application of this Division to persons to
whom rights of consumers and suppliers are assigned etc.
(1) This Division
applies in relation to a person to whom the rights of a consumer (the original
consumer ) under a contract for the supply of goods or services are assigned
or transferred, or pass by operation of law, (whether from the original
consumer or from another person) as if the person were the original consumer.
(2) This Division
applies in relation to a person to whom the rights of a supplier (the original
supplier ) under a contract for the supply of goods or services are assigned
or transferred, or pass by operation of law, (whether from the original
supplier or from another person) as if the person were the original supplier.
92 . Application of this Division to supplies to
third parties
This Division applies
in relation to a contract for the supply of goods or services to a consumer
(the original consumer ) on the order of another person as if the other person
were also the consumer.
93 . Effect of contravening this Division
(1) The supplier under
an unsolicited consumer agreement cannot enforce the agreement against the
consumer under the agreement if a provision of this Division (other than
section 85) has been contravened in relation to the agreement.
(2) This section does
not prevent any action being taken under this Schedule in relation to the
contravention.
94 . Regulations may limit the application of this
Division
This Division (other
than section 73) does not apply, or provisions of this Division (other than
section 73) that are specified in the regulations do not apply, to or in
relation to:
(a)
circumstances of a kind specified in the regulations; or
(b)
agreements of a kind specified in the regulations; or
(c) the
conduct of businesses of a kind specified in the regulations.
95 . Application of this Division to certain
conduct covered by the Corporations Act
This Division does not
apply in relation to conduct to which section 736, 992A or 992AA of the
Corporations Act 2001 applies.
Note: Section 736 of
the Corporations Act 2001 prohibits hawking of securities. Section 992A of
that Act prohibits hawking of certain financial products. Section 992AA of
that Act prohibits hawking of interests in managed investment schemes (which
for the purposes of that Act include interests in notified foreign passport
funds).
Division 3 — Lay-by agreements
96 . Lay-by agreements must be in writing etc.
(1) A supplier of
goods who is a party to a lay-by agreement must ensure that:
(a) the
agreement is in writing; and
(b) a
copy of the agreement is given to the consumer to whom the goods are, or are
to be, supplied.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A supplier of
goods who is a party to a lay-by agreement must ensure that the agreement is
transparent.
(3) A lay-by agreement
is an agreement between a supplier of goods and a consumer for the supply, in
trade or commerce, of the goods on terms (whether express or implied) which
provide that:
(a) the
goods will not be delivered to the consumer until the total price of the goods
has been paid; and
(b) the
price of the goods is to be paid by:
(i)
3 or more instalments; or
(ii)
if the agreement specifies that it is a lay-by agreement
— 2 or more instalments.
(4) For the purposes
of subsection (3)(b), any deposit paid by the consumer for the goods is taken
to be an instalment.
97 . Termination of lay-by agreements by consumers
(1) A consumer who is
party to a lay-by agreement may terminate the agreement at any time before the
goods to which the agreement relates are delivered to the consumer under the
agreement.
(2) A supplier of
goods who is a party to a lay-by agreement must ensure that the agreement does
not require the consumer to pay a charge (a termination charge ) for the
termination of the agreement unless:
(a) the
agreement is terminated by the consumer; and
(b) the
supplier has not breached the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A supplier of
goods who is a party to a lay-by agreement must ensure that, if the agreement
provides that a termination charge is payable, the amount of the charge is not
more than the supplier’s reasonable costs in relation to the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
98 . Termination of lay-by agreements by suppliers
A supplier of goods
who is a party to a lay-by agreement must not terminate the agreement unless:
(a) the
consumer who is a party to the agreement breached a term of the agreement; or
(b) the
supplier is no longer engaged in trade or commerce; or
(c) the
goods to which the agreement relates are no longer available.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
(1) If a lay-by
agreement is terminated by a party to the agreement, the supplier must refund
to the consumer all the amounts paid by the consumer under the agreement other
than any termination charge that is payable under the agreement.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) The supplier is
entitled to recover any unpaid termination charge from the consumer as a debt
if the amounts paid by the consumer under the lay-by agreement are not enough
to cover the charge.
(3) If a lay-by
agreement is terminated by a party to the agreement, the supplier is not
entitled to damages, or to enforce any other remedy, in relation to that
termination except as provided for by this section.
A gift card is:
(a) an
article (whether in physical or electronic form) that:
(i)
is of a kind that is commonly known as a gift card or
gift voucher; and
(ii)
is redeemable for goods or services; or
(b) an
article of a kind specified in regulations made for the purposes of this
paragraph;
but does not include
an article of a kind specified in the regulations.
Subdivision B—Requirements relating to gift cards
99B . Gift cards to be redeemable for at least 3
years
(1) A person must not,
in trade or commerce, supply a gift card to a consumer if the day that the
gift card ceases to be redeemable is earlier than 3 years after the day of
that supply.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If:
(a) a
gift card is, in trade or commerce, supplied to a consumer; and
(b) the
day that the gift card ceases to be redeemable is earlier than 3 years after
the day of that supply;
the day that the gift
card ceases to be redeemable is taken to be 3 years after the day of that
supply.
(3) Subsection (2)
does not affect a person’s liability for an alleged contravention of
subsection (1) or section 191A.
99C . When gift card ceases to be redeemable to
appear prominently on gift card
A person must not, in
trade or commerce, supply a gift card to a consumer if one of the following
does not appear prominently on the gift card:
(a) the
date the gift card ceases to be redeemable;
(b) the
month and year the gift card ceases to be redeemable;
(c) the
date the gift card is supplied and a statement that identifies the period
during which the gift card is redeemable;
(d) the
month and year the gift card is supplied and a statement that identifies the
period during which the gift card is redeemable;
(e) the
words “no expiry date” or words to that effect.
Note: A pecuniary
penalty may be imposed for a contravention of this section.
99D. Terms and conditions not to allow post-supply
fees
(1) A person must not,
in trade or commerce, supply a gift card to a consumer if the terms or
conditions (however described) of the gift card allow or require the payment
of a post-supply fee in relation to the gift card.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A post- supply fee
is a fee or charge payable in relation to a gift card after it is supplied to
a consumer, other than a fee or charge of a kind specified in the regulations.
99E . Post-supply fees not to be demanded or
received
A person must not, in
trade or commerce, demand or receive payment of a post-supply fee in relation
to a gift card.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
99F . Certain terms and conditions of gift card
void
(1) A term or
condition (however described) of a gift card is void if it has the effect of,
or purports to have the effect of:
(a)
allowing or requiring the payment of a post-supply fee in relation to the gift
card; or
(b)
reducing the period that the gift card ceases to be redeemable to a period
that ends earlier than 3 years after the day the gift card is supplied to a
consumer.
(2) The supplier of a
gift card must ensure that the terms or conditions (however described) of the
gift card do not include, or purport to include, a term or condition that is,
or would be, void because of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) This section does
not affect a person’s liability for an alleged contravention of:
(a)
section 99B(1); or
(b)
section 99C; or
(c)
section 99D(1); or
(d)
section 99E; or
(e)
section 191A; or
(f)
section 191B; or
(g)
section 191C; or
(h)
section 191D.
99G . Regulations may limit application of this
Division
The regulations may
provide that some or all of the provisions of this Division do not apply to or
in relation to:
(a) gift
cards of a kind prescribed by the regulations; or
(b)
persons of a kind prescribed by the regulations; or
(c) gift
cards supplied in circumstances prescribed by the regulations.
100 . Supplier must provide proof of transaction
etc.
(1) If:
(a) a
person (the supplier ), in trade or commerce, supplies goods or services to a
consumer; and
(b) the
total price (excluding GST) of the goods or services is $75 or more;
the supplier must give
the consumer a proof of transaction as soon as practicable after the goods or
services are so supplied.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If:
(a) a
person (the supplier ), in trade or commerce, supplies goods or services to a
consumer; and
(b) the
total price (excluding GST) of the goods or services is less than $75;
the consumer may
request a proof of transaction from the supplier as soon as practicable after
the goods or services are so supplied.
(3) If a request is
made under subsection (2), the supplier must give the proof of transaction
within 7 days after the request is made.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) A proof of
transaction for a supply of goods or services to a consumer is a document
that:
(a)
identifies the supplier of the goods or services; and
(b) if
the supplier has an ABN — states the supplier’s ABN; and
(c) if
the supplier does not have an ABN but has an ACN — states the
supplier’s ACN; and
(d)
states the date of the supply; and
(e)
states the goods or services supplied to the consumer; and
(f)
states the price of the goods or services.
Note: The following
are examples of a proof of transaction:
(a) a
tax invoice within the meaning of the A New Tax System (Goods and Services
Tax) Act 1999 ;
(b) a
cash register receipt;
(c) a
credit card or debit card statement;
(d) a
handwritten receipt;
(e) a
lay-by agreement;
(f) a
confirmation or receipt number provided for a telephone or internet
transaction.
(5) The supplier must
ensure that the proof of transaction given under subsection (1) or (3) is
transparent.
101 . Consumer may request an itemised bill
(1) If a person (the
supplier ), in trade or commerce, supplies services to a consumer, the
consumer may request that the supplier give the consumer an itemised bill
that:
(a)
specifies how the price of the services was calculated; and
(b)
includes, if applicable, the number of hours of labour that related to the
supply of the services and the hourly rate for that labour; and
(c)
includes, if applicable, a list of the materials used to supply the services
and the amount charged for those materials.
(2) The request under
subsection (1) must be made within 30 days after:
(a) the
services are supplied; or
(b) the
consumer receives a bill or account from the supplier for the supply of the
services;
whichever occurs
later.
(3) The supplier must
give the consumer the itemised bill within 7 days after the request is made.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) The supplier must
not charge the consumer for the itemised bill.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(5) The supplier must
ensure that the itemised bill is transparent.
102 . Prescribed requirements for warranties
against defects
(1) The regulations
may prescribe requirements relating to the form and content of warranties
against defects.
(2) A person must not,
in connection with the supply, in trade or commerce, of goods or services to a
consumer:
(a) give
to the consumer a document that evidences a warranty against defects that does
not comply with the requirements prescribed for the purposes of subsection
(1); or
(b)
represent directly to the consumer that the goods or services are goods or
services to which such a warranty against defects relates.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A warranty against
defects is a representation communicated to a consumer in connection with the
supply of goods or services, at or about the time of supply, to the effect
that a person will (unconditionally or on specified conditions):
(a)
repair or replace the goods or part of them; or
(b)
provide again or rectify the services or part of them; or
(c)
wholly or partly recompense the consumer;
if the goods or
services or part of them are defective, and includes any document by which
such a representation is evidenced.
103 . Repairers must comply with prescribed
requirements
(1) The regulations
may prescribe requirements relating to the form and content of notices to be
given relating to the repair of goods supplied to a consumer.
(2) A person (the
repairer ) must not, in trade or commerce, accept from another person goods
that the other person acquired as a consumer if the repairer:
(a)
accepts the goods for the purpose of repairing them; and
(b) does
not give to the other person a notice that complies with the requirements
prescribed for the purposes of subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
Part 3-3 — Safety of consumer goods and product related services
104 . Making safety standards for consumer goods
and product related services
(1) The Commonwealth
Minister may, by written notice published on the internet, make a safety
standard for one or both of the following:
(a)
consumer goods of a particular kind;
(b)
product related services of a particular kind.
(2) A safety standard
for consumer goods of a particular kind may consist of such requirements about
the following matters as are reasonably necessary to prevent or reduce risk of
injury to any person:
(a) the
performance, composition, contents, methods of manufacture or processing,
design, construction, finish or packaging of consumer goods of that kind;
(b) the
testing of consumer goods of that kind during, or after the completion of,
manufacture or processing;
(c) the
form and content of markings, warnings or instructions to accompany consumer
goods of that kind.
(3) A safety standard
for product related services of a particular kind may consist of such
requirements about the following matters as are reasonably necessary to
prevent or reduce risk of injury to any person:
(a) the
manner in which services of that kind are supplied (including, but not limited
to, the method of supply);
(b) the
skills or qualifications of persons who supply such services;
(c) the
materials used in supplying such services;
(d) the
testing of such services;
(e) the
form and content of warnings, instructions or other information about such
services.
105 . Declaring safety standards for consumer
goods and product related services
(1) The Commonwealth
Minister may, by written notice published on the internet, declare that the
following is a safety standard for consumer goods, or product related
services, of a kind specified in the instrument:
(a) a
particular standard, or a particular part of a standard, prepared or approved
by Standards Australia or by an association prescribed by the regulations;
(b) such
a standard, or such a part of a standard, with additions or variations
specified in the notice.
(2) The Commonwealth
Minister must not declare under subsection (1) that a standard, or a part of a
standard, referred to in that subsection is a safety standard for:
(a)
consumer goods of a particular kind; or
(b)
product related services of a particular kind;
if that standard or
part is inconsistent with a safety standard for those goods or services that
is in force and that was made under section 104(1).
106 . Supplying etc. consumer goods that do not
comply with safety standards
(1) A person must not,
in trade or commerce, supply consumer goods of a particular kind if:
(a) a
safety standard for consumer goods of that kind is in force; and
(b)
those goods do not comply with the standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply (other than for export) consumer goods
the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not,
in or for the purposes of trade or commerce, manufacture, possess or have
control of consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding
under Part 5-2 in relation to a contravention of subsection (3), it is a
defence if the defendant proves that the defendant’s manufacture,
possession or control of the goods was not for the purpose of supplying the
goods (other than for export).
(5) A person must not,
in trade or commerce, export consumer goods the supply of which is prohibited
by subsection (1) unless:
(a) the
person applies, in writing, to the Commonwealth Minister for an approval to
export those goods; and
(b) the
Commonwealth Minister gives such an approval by written notice given to the
person.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(6) If the
Commonwealth Minister gives an approval under subsection (5), he or she must
cause a statement setting out particulars of the approval to be tabled in each
House of the Parliament of the Commonwealth within 7 sitting days of that
House after the approval is given.
(7) If:
(a) a
person supplies consumer goods in contravention of this section; and
(b)
another person suffers loss or damage:
(i)
because of a defect in, or a dangerous characteristic of,
the goods; or
(ii)
because of a reasonably foreseeable use (including a
misuse) of the goods; or
(iii)
because, contrary to the safety standard, he or she was
not provided with particular information in relation to the goods; and
(c) the
other person would not have suffered the loss or damage if the goods had
complied with the safety standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
107 . Supplying etc.
product related services that do not comply with safety standards
(1) A person must not,
in trade or commerce, supply product related services of particular kind if:
(a) a
safety standard for services of that kind is in force; and
(b)
those services do not comply with the standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply product related services the supply of
which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a
person supplies product related services in contravention of this section; and
(b)
another person suffers loss or damage:
(i)
because of defect in, or a dangerous characteristic of,
consumer goods that results from the services being supplied; or
(ii)
because of a reasonably foreseeable use (including a
misuse) of consumer goods that results from the services being supplied; or
(iii)
because, contrary to the safety standard, he or she was
not provided with particular information in relation to the services; and
(c) the
other person would not have suffered the loss or damage if the services had
complied with the safety standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
108 . Requirement to
nominate a safety standard
If:
(a) a
safety standard for consumer goods of a particular kind is in force; and
(b) the
standard specifies, as alternative methods of complying with the standard (or
part of the standard), 2 or more sets of requirements relating to goods of
that kind; and
(c) the
regulator gives to a supplier of goods of that kind a written request that the
supplier nominate which of those sets of requirements the supplier intends to
comply with as the supplier’s method of complying with the standard;
the supplier must,
within the period specified in the request, give to the regulator a written
notice specifying which of those sets of requirements the supplier intends to
comply with as the supplier’s method of complying with the standard.
Division 2 — Bans on consumer goods and product related services
109 . Interim bans on consumer goods or product
related services that will or may cause injury to any person etc.
(1) A responsible
Minister may, by written notice published on the internet, impose an interim
ban on consumer goods of a particular kind if:
(a) it
appears to the responsible Minister that:
(i)
consumer goods of that kind will or may cause injury to
any person; or
(ii)
a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to any person; or
(b)
another responsible Minister has imposed, under paragraph (a), an interim ban:
(i)
on consumer goods of the same kind; or
(ii)
on consumer goods of a kind that includes those goods;
and that ban is still
in force.
(2) A responsible
Minister may, by written notice published on the internet, impose an interim
ban on product related services of a particular kind if:
(a) it
appears to the responsible Minister that:
(i)
as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause injury to any person; or
(ii)
a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such services relate, will or
may cause injury to any person as a result of such services being supplied; or
(b)
another responsible Minister has imposed, under paragraph (a), an interim ban:
(i)
on product related services of the same kind; or
(ii)
on product related services that include those services;
and that ban is still
in force.
110 . Places in which interim bans apply
(1) An interim ban
imposed by the Commonwealth Minister applies in all States and Territories.
(2) An interim ban
imposed by a responsible Minister who is Minister of a State applies in the
State.
(3) An interim ban
imposed by a responsible Minister who is a Minister of a Territory applies in
the Territory.
111 . Ban period for interim bans
(1) An interim ban
imposed by a responsible Minister is in force during the period (the ban
period ) that:
(a)
starts on the day (the start day ) specified in the notice imposing the ban;
and
(b)
subject to this Subdivision, ends at the end of 60 days after the start day.
(2) Before the ban
period for the interim ban ends, the responsible Minister may, by written
notice published on the internet, extend the ban period for the ban by a
period of up to 30 days.
(3) If:
(a) the
ban period for the interim ban is extended under subsection (2); and
(b) the
extended ban period for the ban has not ended; and
(c) the
interim ban was not imposed by the Commonwealth Minister;
the responsible
Minister may, in writing, request the Commonwealth Minister to extend the
extended ban period for the ban.
(4) If a request is
made under subsection (3), the Commonwealth Minister may, by written notice
published on the internet, extend the extended ban period for the interim ban
by a further period of up to 30 days.
(5) If:
(a) a
request is made under subsection (3); and
(b) the
Commonwealth Minister has not made a decision on the request immediately
before the extended ban period for the interim ban is to end;
the Commonwealth
Minister is taken to have decided to extend the extended ban period for the
ban by a further period of 30 days.
(6) If:
(a) the
ban period for the interim ban is extended under subsection (2); and
(b) the
extended ban period for the ban has not ended; and
(c) the
interim ban was imposed by the Commonwealth Minister;
the Commonwealth
Minister may, by written notice published on the internet, extend the extended
ban period for the interim ban by a further period of up to 30 days.
112 . Interaction of multiple interim bans
(1) If:
(a) an
interim ban (the original ban ) on consumer goods of a particular kind (the
banned goods ) is imposed by a responsible Minister other than the
Commonwealth Minister; and
(b)
while the original ban is in force, the Commonwealth Minister imposes an
interim ban (the Commonwealth ban ):
(i)
on the banned goods; or
(ii)
on consumer goods of a kind that includes the banned
goods;
the original ban, to
the extent that it is a ban on the banned goods, ceases to be in force
immediately before the Commonwealth ban comes into force.
(2) If:
(a) an
interim ban (the original ban ) on product related services of a particular
kind (the banned services ) is imposed by a responsible Minister other than
the Commonwealth Minister; and
(b)
while the original ban is in force, the Commonwealth Minister imposes an
interim ban (the Commonwealth ban ):
(i)
on the banned services; or
(ii)
on product related services of a kind that includes the
banned services;
the original ban, to
the extent that it is a ban on the banned services, ceases to be in force
immediately before the Commonwealth ban comes into force.
113 . Revocation of interim bans
If a responsible
Minister imposes an interim ban:
(a) the
responsible Minister may, by written notice published on the internet, revoke
the ban at any time; and
(b) the
ban ceases to be in force on the day specified by the responsible Minister in
the notice.
Subdivision B — Permanent bans
114 . Permanent bans on consumer goods or product
related services
(1) The Commonwealth
Minister may, by written notice published on the internet, impose a permanent
ban on consumer goods of a particular kind if:
(a) one
or more interim bans on consumer goods of that kind (the banned goods ), or on
consumer goods of a kind that include the banned goods, are in force; or
(b) it
appears to the Commonwealth Minister that:
(i)
consumer goods of that kind will or may cause injury to
any person; or
(ii)
a reasonably foreseeable use (including a misuse) of
consumer goods of that kind will or may cause injury to any person.
(2) The Commonwealth
Minister may, by written notice published on the internet, impose a permanent
ban on product related services of a particular kind if:
(a) one
or more interim bans on product related services of that kind (the banned
services ), or on product related services of a kind that include the banned
services, are in force; or
(b) it
appears to the Commonwealth Minister that:
(i)
as a result of services of that kind being supplied,
consumer goods of a particular kind will or may cause injury to any person; or
(ii)
a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such services relate, will or
may cause injury to any person as a result of such services being supplied.
115 . Places in which permanent bans apply
A permanent ban
applies in all States and Territories.
116 . When permanent bans come into force
A permanent ban comes
into force on the day specified by the Commonwealth Minister in the instrument
imposing the ban.
117 . Revocation of permanent bans
If the Commonwealth
Minister imposes a permanent ban:
(a) the
Commonwealth Minister may, by written notice published on the internet, revoke
the ban at any time; and
(b) the
ban ceases to be in force on the day specified by the Commonwealth Minister in
the notice.
Subdivision C — Compliance with interim bans and permanent bans
118 . Supplying etc. consumer goods covered by a
ban
(1) A person must not,
in trade or commerce, supply consumer goods of a particular kind if:
(a) an
interim ban on consumer goods of that kind is in force in the place where the
supply occurs; or
(b) a
permanent ban on consumer goods of that kind is in force.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply (other than for export) consumer goods
the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not,
in or for the purposes of trade or commerce, manufacture, possess or have
control of consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding
under Part 5-2 in relation to a contravention of subsection (3), it is a
defence if the defendant proves that the defendant’s manufacture,
possession or control of the goods was not for the purpose of supplying the
goods (other than for export).
(5) A person must not,
in trade or commerce, export consumer goods the supply of which is prohibited
by subsection (1) unless:
(a) the
person applies, in writing, to the Commonwealth Minister for an approval to
export those goods; and
(b) the
Commonwealth Minister gives such an approval by written notice given to the
person.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(6) If the
Commonwealth Minister gives an approval under subsection (5), he or she must
cause a statement setting out particulars of the approval to be tabled in each
House of the Parliament of the Commonwealth within 7 sitting days of that
House after the approval is given.
(7) If:
(a) a
person supplies consumer goods in contravention of subsection (1); and
(b)
another person suffers loss or damage:
(i)
because of a defect in, or a dangerous characteristic of,
the goods; or
(ii)
because of a reasonably foreseeable use (including a
misuse) of the goods;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
119 . Supplying etc. product related services
covered by a ban
(1) A person must not,
in trade or commerce, supply product related services of a particular kind if:
(a) an
interim ban on services of that kind is in force in the place where the supply
occurs; or
(b) a
permanent ban on services of that kind is in force.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply product related services the supply of
which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a
person supplies product related services in contravention of subsection (1);
and
(b)
another person suffers loss or damage:
(i)
because of a defect in, or a dangerous characteristic of,
consumer goods that results from the services being supplied; or
(ii)
because of a reasonably foreseeable use (including a
misuse) of consumer goods that results from the services being supplied;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
Subdivision D — Temporary exemption from mutual recognition principles
120 . Temporary exemption under the
Trans-Tasman Mutual Recognition Act 1997
(1) If:
(a) an
interim ban on consumer goods of a particular kind is in force; or
(b) a
permanent ban on consumer goods of a particular kind is in force;
the goods are taken,
for the purposes of section 46 of the Trans-Tasman Mutual Recognition Act 1997
, to be goods of a kind that are declared, in the manner provided by
section 46(2) of that Act, to be exempt from the operation of that Act.
(2) This section does
not affect the application of section 46(4) of that Act in relation to such an
exemption.
121 . Temporary exemption under the
Mutual Recognition Act 1992
(1) If:
(a) an
interim ban on consumer goods of a particular kind is in force; and
(b) the
interim ban was not imposed by the Commonwealth Minister;
the goods are taken,
for the purposes of section 15 of the Mutual Recognition Act 1992 , to be
goods of a kind that are declared, in the manner provided by section 15(1) of
that Act, to be goods to which that section applies.
(2) This section does
not affect the application of section 15(3) of that Act in relation to such an
exemption.
Division 3 — Recall of consumer goods
Subdivision A — Compulsory recall of consumer goods
122 . Compulsory recall of consumer goods
(1) A responsible
Minister may, by written notice published on the internet, issue a recall
notice for consumer goods of a particular kind if:
(a) a
person, in trade or commerce, supplies consumer goods of that kind; and
(b) any
of the following applies:
(i)
it appears to the responsible Minister that such goods
will or may cause injury to any person;
(ii)
it appears to the responsible Minister that a reasonably
foreseeable use (including a misuse) of such goods will or may cause injury to
any person;
(iii)
a safety standard for such goods is in force and the
goods do not comply with the standard;
(iv)
an interim ban, or a permanent ban, on such goods is in
force; and
(c) it
appears to the responsible Minister that one or more suppliers of such goods
have not taken satisfactory action to prevent those goods causing injury to
any person.
(2) It is not
necessary for the purposes of subsection (1)(c) for the responsible Minister
to know the identities of any of the suppliers of the consumer goods of that
kind.
(3) A recall notice
for consumer goods may be issued under subsection (1) even if the consumer
goods have become fixtures since the time they were supplied.
123 . Contents of a recall notice
(1) A recall notice
for the consumer goods may require one or more suppliers of the goods, or (if
no such supplier is known to the responsible Minister who issued the notice)
the regulator, to take one or more of the following actions:
(a)
recall the goods;
(b)
disclose to the public, or to a class of persons specified in the notice, one
or more of the following:
(i)
the nature of a defect in, or a dangerous characteristic
of, the goods as identified in the notice;
(ii)
the circumstances as identified in the notice in which a
reasonably foreseeable use or misuse of the goods is dangerous;
(iii)
procedures as specified in the notice for disposing of
the goods;
(c) if
the identities of any of those suppliers are known to the responsible Minister
— inform the public, or a class of persons specified in the notice, that
the supplier undertakes to do whichever of the following the supplier thinks
is appropriate:
(i)
unless the notice identifies a dangerous characteristic
of the goods — repair the goods;
(ii)
replace the goods;
(iii)
refund to a person to whom the goods were supplied
(whether by the supplier or by another person) the price of the goods.
(2) The recall notice
may specify:
(a) the
manner in which the action required to be taken by the notice must be taken;
and
(b) the
period within which the action must be taken.
(3) If the recall
notice requires the regulator to take action to recall the consumer goods, the
responsible Minister may specify in the notice that the regulator must retain,
destroy or otherwise dispose of the goods.
(4) If the recall
notice requires a supplier of the consumer goods to take action of a kind
referred to in subsection (1)(c), the responsible Minister may specify in the
notice that, if:
(a) the
supplier undertakes to refund the price of the goods; and
(b) a
period of more than 12 months has elapsed since a person (whether or not the
person to whom the refund is to be made) acquired the goods from the supplier;
the amount of a refund
may be reduced by the supplier by an amount calculated in a manner specified
in the notice that is attributable to the use which a person has had of the
goods.
124 . Obligations of a supplier in relation to a
recall notice
(1) This section
applies if a recall notice for consumer goods requires a supplier to take
action of a kind referred to in section 123(1)(c).
(2) If the supplier
undertakes to repair the consumer goods, the supplier must cause the goods to
be repaired so that:
(a) any
defect in the goods identified in the recall notice is remedied; and
(b) if a
safety standard for the goods is in force — the goods comply with that
standard.
(3) If the supplier
undertakes to replace the consumer goods, the supplier must replace the goods
with similar consumer goods which:
(a) if a
defect in, or a dangerous characteristic of, the goods to be replaced was
identified in the recall notice — do not contain that defect or have
that characteristic; and
(b) if a
safety standard for the goods to be replaced is in force — comply with
that standard.
(4) If the supplier
undertakes:
(a) to
repair the consumer goods; or
(b) to
replace the consumer goods;
the cost of the repair
or replacement, including any necessary transportation costs, must be paid by
the supplier.
125 . Notification by persons who supply consumer
goods outside Australia if there is compulsory recall
(1) If consumer goods
of a particular kind are recalled as required by a recall notice, a person who
has supplied or supplies those consumer goods to a person outside Australia
must give the person outside Australia a written notice that complies with
subsection (2).
(2) The notice given
under subsection (1) must:
(a)
state that the consumer goods are subject to recall; and
(b) if
the consumer goods contain a defect or have a dangerous characteristic —
set out the nature of that defect or characteristic; and
(c) if a
reasonably foreseeable use or misuse of the consumer goods is dangerous
— set out the circumstances of that use or misuse; and
(d) if
the consumer goods do not comply with a safety standard for such goods that is
in force — set out the nature of the non-compliance; and
(e) if
an interim ban, or a permanent ban, on the consumer goods is in force —
state that fact.
(3) The notice under
subsection (1) must be given as soon as practicable after the supply of the
consumer goods to the person outside Australia.
(4) A person who is
required to give a notice under subsection (1) must, within 10 days after
giving the notice, give a copy of the notice to the responsible Minister who
issued the recall notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
126 . Interaction of multiple recall notices
If:
(a) a
recall notice (the original recall notice ) for consumer goods of a particular
kind (the recalled goods ) is issued by a responsible Minister other than the
Commonwealth Minister; and
(b)
while the original recall notice is in force, the Commonwealth Minister issues
a recall notice (the Commonwealth recall notice ):
(i)
for the recalled goods; or
(ii)
for consumer goods of a kind that includes the recalled
goods;
the original recall
notice, to the extent that it relates to the recalled goods, ceases to be in
force immediately before the Commonwealth recall notice is issued.
127 . Compliance with recall notices
(1) If:
(a) a
recall notice for consumer goods is in force; and
(b) the
notice requires a person (other than the regulator) to do one or more things;
the person must comply
with the notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) If a recall notice
for consumer goods is in force, a person must not, in trade or commerce:
(a) if
the notice identifies a defect in, or a dangerous characteristic of, the
consumer goods — supply consumer goods of the kind to which the notice
relates which contain that defect or have that characteristic; or
(b) in
any other case — supply consumer goods of the kind to which the notice
relates.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a
person contravenes subsection (1) or (2) in relation to consumer goods; and
(b)
another person suffers loss or damage:
(i)
because of a defect in, or a dangerous characteristic of,
the goods; or
(ii)
because of a reasonably foreseeable use (including a
misuse) of the goods; or
(iii)
because, contrary to the recall notice, the other person
was not provided with particular information in relation to the goods;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of the contravention.
Subdivision B — Voluntary recall of consumer goods
128 . Notification requirements for a voluntary
recall of consumer goods
(1) This section
applies if a person voluntarily takes action to recall consumer goods of a
particular kind (including consumer goods that have become fixtures since
being supplied) because:
(a) the
consumer goods will or may cause injury to any other person; or
(b) a
reasonably foreseeable use (including a misuse) of the consumer goods will or
may cause injury to any other person; or
(c) a
safety standard for the consumer goods is in force and they do not, or it is
likely that they do not, comply with the standard; or
(d) an
interim ban, or a permanent ban, on the consumer goods is in force.
(2) The person must,
within 2 days after taking the action, give the Commonwealth Minister a
written notice that complies with subsection (7).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) The Commonwealth
Minister may publish a copy of the notice on the internet.
(4) A person who has
supplied or supplies consumer goods of that kind to another person outside
Australia must give the other person a written notice that complies with
subsection (7).
(5) The notice under
subsection (4) must be given as soon as practicable after the supply of the
consumer goods to the person outside Australia.
(6) A person who is
required to give a notice under subsection (4) must, within 10 days after
giving the notice, give a copy of the notice to the Commonwealth Minister.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(7) A notice given
under subsection (2) or (4) must:
(a)
state that the consumer goods are subject to recall; and
(b) if
the consumer goods contain a defect or have a dangerous characteristic —
set out the nature of that defect or characteristic; and
(c) if a
reasonably foreseeable use or misuse of the consumer goods is dangerous
— set out the circumstances of that use or misuse; and
(d) if
the consumer goods do not, or it is likely that they do not, comply with a
safety standard for the goods that is in force —set out the nature of
the non-compliance or likely non-compliance; and
(e) if
an interim ban, or a permanent ban, on the consumer goods is in force —
state that fact.
Division 4 — Safety warning notices
129 . Safety warning notices about consumer goods
and product related services
(1) A responsible
Minister may publish on the internet a written notice containing one or both
of the following:
(a) a
statement that consumer goods of a kind specified in the notice are under
investigation to determine whether:
(i)
those goods will or may cause injury to any person; or
(ii)
a reasonably foreseeable use (including a misuse) of
those goods will or may cause injury to any person;
(b) a
warning of possible risks involved in the use of consumer goods of a kind
specified in the notice.
(2) A responsible
Minister may publish on the internet a written notice containing one or both
of the following:
(a) a
statement that product related services of a kind specified in the notice are
under investigation to determine whether:
(i)
consumer goods of a particular kind will or may cause
injury to any person as a result of services of that kind being supplied; or
(ii)
a reasonably foreseeable use (including a misuse) of
consumer goods of a particular kind, to which such services relate, will or
may cause injury to any person as a result of such services being supplied;
(b) a
warning of possible risks involved in the supply of product related services
of a kind specified in the notice.
130 . Announcement of the results of an
investigation etc.
(1) If:
(a) an
investigation of consumer goods, or product related services, specified in a
notice under section 129(1) or (2) has been completed; and
(b) none
of the following have been published or issued in relation to those goods or
services:
(i)
a proposed ban notice under section 132 of the
Competition and Consumer Act ;
(ii)
a proposed recall notice under section 132A of that Act;
(iii)
a notice under section 132J(1) or (2) of that Act;
the responsible
Minister who issued the notice under section 129(1) or (2) must, as soon as
practicable after the completion of the investigation, announce, by written
notice published on the internet, the results of the investigation.
(2) The responsible
Minister may announce in a notice published under subsection (1) of this
section:
(a)
whether any action under this Part is proposed to be taken in relation to the
consumer goods or product related services; and
(b) if
it is proposed to take any such action — what action is proposed to be
taken.
Division 5 — Consumer goods, or product related services, associated
with death or serious injury or illness
131 . Suppliers to report consumer goods
associated with the death or serious injury or illness of any person
(1) If:
(a) a
person (the supplier ), in trade or commerce, supplies consumer goods; and
(b) the
supplier becomes aware of the death or serious injury or illness of any person
and:
(i)
considers that the death or serious injury or illness was
caused, or may have been caused, by the use or foreseeable misuse of the
consumer goods; or
(ii)
becomes aware that a person other than the supplier
considers that the death or serious injury or illness was caused, or may have
been caused, by the use or foreseeable misuse of the consumer goods;
the supplier must,
within 2 days of becoming so aware, give the Commonwealth Minister a written
notice that complies with subsection (5).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1)
does not apply if:
(a) it
is clear that the death or serious injury or illness was not caused by the use
or foreseeable misuse of the consumer goods; or
(b) it
is very unlikely that the death or serious injury or illness was caused by the
use or foreseeable misuse of the consumer goods; or
(c) the
supplier, or another person, is required to notify the death or serious injury
or illness in accordance with a law of the Commonwealth, a State or a
Territory that is a law specified in the regulations; or
(d) the
supplier, or another person, is required to notify the death or serious injury
or illness in accordance with an industry code of practice that:
(i)
applies to the supplier or other person; and
(ii)
is specified in the regulations.
(3) Subsection (1)
applies whether or not the consumer goods were being used before or at the
time the death or serious injury or illness occurred.
(4) Without limiting
subsection (1), the ways in which the supplier may become aware as mentioned
in subsection (1)(b) include receiving the relevant information from any of
the following:
(a) a
consumer;
(b) a
person who re-supplies the consumer goods;
(c) a
repairer or insurer of the goods;
(d) an
industry organisation or consumer organisation.
(5) The notice must:
(a)
identify the consumer goods; and
(b)
include information about the following matters to the extent that it is known
by the supplier at the time the notice is given:
(i)
when, and in what quantities, the consumer goods were
manufactured in Australia, supplied in Australia, imported into Australia or
exported from Australia;
(ii)
the circumstances in which the death or serious injury or
illness occurred;
(iii)
the nature of any serious injury or illness suffered by
any person;
(iv)
any action that the supplier has taken, or is intending
to take, in relation to the consumer goods.
(6) The giving of the
notice under subsection (1) is not to be taken for any purpose to be an
admission by the supplier of any liability in relation to:
(a) the
consumer goods; or
(b) the
death or serious injury or illness of any person.
132 . Suppliers to report product related services
associated with the death or serious injury or illness of any person
(1) If:
(a) a
person (the supplier ), in trade or commerce, supplies product related
services; and
(b) the
supplier becomes aware of the death or serious injury or illness of any person
and:
(i)
considers that the death or serious injury or illness was
caused, or may have been caused, by the use or foreseeable misuse of the
consumer goods to which the services relate; or
(ii)
becomes aware that a person other than the supplier
considers that the death or serious injury or illness was caused, or may have
been caused, by the use or foreseeable misuse of the consumer goods to which
the services relate;
the supplier must,
within 2 days of becoming so aware, give the Commonwealth Minister a written
notice that complies with subsection (5).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) Subsection (1)
does not apply if:
(a) it
is clear that the death or serious injury or illness was not caused by the use
or foreseeable misuse of the consumer goods to which the services relate; or
(b) it
is very unlikely that the death or serious injury or illness was caused by the
use or foreseeable misuse of the consumer goods to which the services relate;
or
(c) the
supplier, or another person, is required to notify the death or serious injury
or illness in accordance with a law of the Commonwealth, a State or a
Territory that is a law specified in the regulations; or
(d) the
supplier, or another person, has notified the death or serious injury or
illness in accordance with an industry code of practice that:
(i)
applies to the supplier or other person; and
(ii)
is specified in the regulations.
(3) Subsection (1)
applies whether or not consumer goods to which the product related services
relate were being used before or at the time the death or serious injury or
illness occurred.
(4) Without limiting
subsection (1), the ways in which the supplier may become aware as mentioned
in subsection (1)(b) include receiving the relevant information from any of
the following:
(a) a
consumer;
(b) a
person who re-supplies the product related services;
(c) an
insurer of the services;
(d) an
industry organisation or consumer organisation.
(5) The notice must:
(a)
identify the product related services and the consumer goods to which the
services relate; and
(b)
include information about the following matters to the extent that it is known
by the supplier at the time the notice is given:
(i)
when the services have been supplied;
(ii)
the circumstances in which the death or serious injury or
illness occurred;
(iii)
the nature of any serious injury or illness suffered by
any person;
(iv)
any action that the supplier has taken, or is intending
to take, in relation to the services.
(6) The giving of the
notice under subsection (1) is not to be taken for any purpose to be an
admission by the supplier of any liability in relation to:
(a) the
product related services; or
(b) the
consumer goods to which the services relate; or
(c) the
death or serious injury or illness of any person.
132A . Confidentiality of notices given under this
Division
(1) A person must not
disclose to any other person a notice given under this Division, or any part
of or information contained in such a notice, unless the person who gave the
notice has consented to the notice, or that part or information, not being
treated as confidential.
(2) This section does
not apply if:
(a) the
disclosure is made by the Commonwealth Minister to:
(i)
another responsible Minister; or
(ii)
the regulator; or
(iii)
an associate regulator; or
(b) the
disclosure is made by the Commonwealth Minister and the Commonwealth Minister
considers that the disclosure is in the public interest; or
(c) the
disclosure is made by a member of the staff of the regulator, or an associate
regulator, in the performance of his or her duties as such a member of staff,
and is made:
(i)
to another member of the staff of the regulator or
associate regulator; or
(ii)
if the person making the disclosure is a member of the
staff of the regulator — to an associate regulator; or
(iii)
if the person making the disclosure is a member of the
staff of an associate regulator—to the regulator or another associate
regulator; or
(d) the
disclosure is required or authorised by or under law; or
(e) the
disclosure is reasonably necessary for the enforcement of the criminal law or
of a law imposing a pecuniary penalty.
(3) This section also
does not apply if the disclosure is made by a member of the staff of the
regulator, or an associate regulator, in the performance of his or her duties
as such a member of staff, and is made because it is reasonably necessary to
protect public safety, to:
(a) any
other agency within the meaning of the Freedom of Information Act 1982 ; or
(b) the
Director of Public Prosecutions; or
(c) a
State/Territory government body (within the meaning of section 155AAA of the
Competition and Consumer Act); or
(d) a
foreign government body (within the meaning of the Competition and Consumer
Act ).
133 . Liability under a contract of insurance
If:
(a) a
contract of insurance between an insurer and a person relates to:
(i)
the recall of consumer goods that are supplied by the
person, or which the person proposes to supply; or
(ii)
the liability of the person with respect to possible
defects in such consumer goods; and
(b) the
person gives information relating to any such consumer goods to:
(i)
a responsible Minister; or
(ii)
the regulator; or
(iii)
a person appointed or engaged under the Public Service
Act 1999 , or under a corresponding law of a State or a Territory; or
(iv)
an officer of an authority of the Commonwealth or of a
State or Territory;
the liability of the
insurer under the contract is not affected only because the person gave the
information.
Part 3-4 — Information standards
134 . Making information standards for goods and
services
(1) The Commonwealth
Minister may, by written notice published on the internet, make an information
standard for one or both of the following:
(a)
goods of a particular kind;
(b)
services of a particular kind.
(2) Without limiting
subsection (1), an information standard for goods or services of a particular
kind may:
(a) make
provision in relation to the content of information about goods or services of
that kind; or
(b)
require the provision of specified information about goods or services of that
kind; or
(c)
provide for the manner or form in which such information is to be provided; or
(d)
provide that such information is not to be provided in a specified manner or
form; or
(e)
provide that information of a specified kind is not to be provided about goods
or services of that kind; or
(f)
assign a meaning to specified information about goods or services.
135 . Declaring information standards for goods
and services
(1) The Commonwealth
Minister may, by written notice published on the internet, declare that the
following is an information standard for goods or services of a kind
specified in the instrument:
(a) a
particular standard, or a particular part of a standard, prepared or approved
by Standards Australia or by an association prescribed by the regulations;
(b) such
a standard, or such a part of a standard, with additions or variations
specified in the notice.
(2) The Commonwealth
Minister must not declare under subsection (1) that a standard, or a part of a
standard, referred to in that subsection is an information standard for:
(a)
goods of a particular kind; or
(b)
services of a particular kind;
if that standard or
part is inconsistent with an information standard for those goods or services
that is in force and was made under section 134(1).
136 . Supplying etc. goods that do not comply with
information standards
(1) A person must not,
in trade or commerce, supply goods of a particular kind if:
(a) an
information standard for goods of that kind is in force; and
(b) the
person has not complied with that standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply goods the supply of which is prohibited
by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) A person must not,
in or for the purposes of trade or commerce, manufacture, possess or have
control of goods the supply of which is prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(4) In a proceeding
under Part 5-2 in relation to a contravention of subsection (3), it is a
defence if the defendant proves that the defendant’s manufacture,
possession or control of the goods was not for the purpose of supplying the
goods.
(5) Subsections (1),
(2) and (3) do not apply to goods that are intended to be used outside
Australia.
(6) Unless the
contrary is established, it is presumed, for the purposes of this section,
that goods are intended to be used outside Australia if either of the
following is applied to the goods:
(a) a
statement that the goods are for export only;
(b) a
statement indicating, by the use of words authorised by the regulations to be
used for the purposes of this subsection, that the goods are intended to be
used outside Australia.
(7) Without limiting
subsection (6), a statement may, for the purposes of that subsection, be
applied to goods by being:
(a)
woven in, impressed on, worked into or annexed or affixed to the goods; or
(b)
applied to a covering, label, reel or thing in or with which the goods are
supplied.
(8) If:
(a) a
person (the supplier ) supplies goods in contravention of subsection (1), (2)
or (3); and
(b)
another person suffers loss or damage because, contrary to the information
standard, he or she was not provided with particular information in relation
to the goods; and
(c) the
other person would not have suffered the loss or damage if the supplier had
complied with the information standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
137 . Supplying etc. services that do not comply
with information standards
(1) A person must not,
in trade or commerce, supply services of a particular kind if:
(a) an
information standard for services of that kind is in force; and
(b) the
person has not complied with that standard.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) A person must not,
in trade or commerce, offer for supply services the supply of which is
prohibited by subsection (1).
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(3) If:
(a) a
person (the supplier ) supplies services in contravention of subsection (1) or
(2); and
(b)
another person suffers loss or damage because, contrary to the information
standard, he or she was not provided with particular information in relation
to the services; and
(c) the
other person would not have suffered the loss or damage if the supplier had
complied with the information standard;
the other person is
taken, for the purposes of this Schedule, to have suffered the loss or damage
because of that supply.
137A . Safe harbour for complying with information
standards about free range eggs
(1) Neither section 18
nor paragraph 29(1)(a) or 151(1)(a) applies to a person in relation to the
labelling or displaying of eggs as free range eggs if, when doing so, the
person is complying with all requirements:
(a)
specified in an information standard for eggs; and
(b)
relating to the labelling or displaying of free range eggs, including
requirements about:
(i)
the use of the words “free range”; or
(ii)
representing that eggs are free range eggs.
(2) If:
(a)
proceedings are brought against a person in respect of section 18 or paragraph
29(1)(a) or 151(1)(a); and
(b) the
person seeks to rely on subsection (1) of this section in the proceedings;
the person bears an
evidential burden in relation to the matters set out in that subsection.
(3) An egg is an egg
laid by a female domestic chicken ( Gallus gallus domesticus ).
(4) Free range egg has
the meaning given by the information standard mentioned in paragraph (1)(a).
Part 3-5 — Liability of manufacturers for goods with safety defects
Division 1 — Actions against manufacturers for goods with safety defects
138 . Liability for loss or damage suffered by an
injured individual
(1) A manufacturer of
goods is liable to compensate an individual if:
(a) the
manufacturer supplies the goods in trade or commerce; and
(b) the
goods have a safety defect; and
(c) the
individual suffers injuries because of the safety defect.
(2) The individual may
recover, by action against the manufacturer, the amount of the loss or damage
suffered by the individual.
(3) If the individual
dies because of the injuries, a law of a State or a Territory about liability
in respect of the death of individuals applies as if:
(a) the
action were an action under the law of the State or Territory for damages in
respect of the injuries; and
(b) the
safety defect were the manufacturer’s wrongful act, neglect or default.
139 . Liability for loss or damage suffered by a
person other than an injured individual
(1) A manufacturer of
goods is liable to compensate a person if:
(a) the
manufacturer supplies the goods in trade or commerce; and
(b) the
goods have a safety defect; and
(c) an
individual (other than the person) suffers injuries because of the safety
defect; and
(d) the
person suffers loss or damage because of:
(i)
the injuries; or
(ii)
if the individual dies because of the injuries —
the individual’s death; and
(e) the
loss or damage does not come about because of a business or professional
relationship between the person and the individual.
(2) The person may
recover, by action against the manufacturer, the amount of the loss or damage
suffered by the person.
140 . Liability for loss or damage suffered by a
person if other goods are destroyed or damaged
(1) A manufacturer of
goods is liable to compensate a person if:
(a) the
manufacturer supplies the goods in trade or commerce; and
(b) the
goods have a safety defect; and
(c)
other goods of a kind ordinarily acquired for personal, domestic or household
use or consumption are destroyed or damaged because of the safety defect; and
(d) the
person used or consumed, or intended to use or consume, the destroyed or
damaged goods for personal, domestic or household use or consumption; and
(e) the
person suffers loss or damage as a result of the destruction or damage.
(2) The person may
recover, by action against the manufacturer, the amount of the loss or damage
suffered by the person.
141 . Liability for loss or damage suffered by a
person if land, buildings or fixtures are destroyed or damaged
(1) A manufacturer of
goods is liable to compensate a person if:
(a) the
manufacturer supplies the goods in trade or commerce; and
(b) the
goods have a safety defect; and
(c)
land, buildings or fixtures are destroyed or damaged because of the safety
defect; and
(d) the
land, buildings or fixtures are ordinarily acquired for private use; and
(e) the
person used, or intended to use, the land, buildings or fixtures for private
use; and
(f) the
person suffers loss or damage as a result of the destruction or damage.
(2) The person may
recover, by action against the manufacturer, the amount of the loss or damage
suffered by the person.
142 . Defences to defective goods actions
In a defective goods
action, it is a defence if it is established that:
(a) the
safety defect in the goods that is alleged to have caused the loss or damage
did not exist:
(i)
in the case of electricity — at the time at which
the electricity was generated, being a time before it was transmitted or
distributed; or
(ii)
in any other case — at the time when the goods were
supplied by their actual manufacturer; or
(b) the
goods had that safety defect only because there was compliance with a
mandatory standard for them; or
(c) the
state of scientific or technical knowledge at the time when the goods were
supplied by their manufacturer was not such as to enable that safety defect to
be discovered; or
(d) if
the goods that had that safety defect were comprised in other goods —
that safety defect is attributable only to:
(i)
the design of the other goods; or
(ii)
the markings on or accompanying the other goods; or
(iii)
the instructions or warnings given by the manufacturer of
the other goods.
Division 2 — Defective goods actions
143 . Time for commencing defective goods actions
(1) Subject to
subsection (2), a person may commence a defective goods action at any time
within 3 years after the time the person became aware, or ought reasonably to
have become aware, of all of the following:
(a) the
alleged loss or damage;
(b) the
safety defect of the goods;
(c) the
identity of the person who manufactured the goods.
(2) A defective goods
action must be commenced within 10 years of the supply by the manufacturer of
the goods to which the action relates.
144 . Liability joint and several
If 2 or more persons
are liable under Division 1 for the same loss or damage, they are jointly and
severally liable.
A law of a State or a
Territory about the survival of causes of action vested in persons who die
applies to actions under Division 1.
146 . No defective goods action where
workers’ compensation law etc. applies
Division 1 does not
apply to a loss or damage in respect of which an amount has been, or could be,
recovered under a law of the Commonwealth, a State or a Territory that:
(a)
relates to workers’ compensation; or
(b)
gives effect to an international agreement.
147 . Unidentified manufacturer
(1) A person who:
(a)
wishes to institute a defective goods action; but
(b) does
not know who is the manufacturer of the goods to which the action would
relate;
may, by written notice
given to a supplier, or each supplier, of the goods who is known to the
person, request the supplier or suppliers to give the person particulars
identifying the manufacturer of the goods, or the supplier of the goods to the
supplier requested.
(2) If, 30 days after
the person made the request or requests, the person still does not know who is
the manufacturer of the goods, then each supplier:
(a) to
whom the request was made; and
(b) who
did not comply with the request;
is taken, for the
purposes of the defective goods liability action (but not for the purposes of
section 142(c)), to be the manufacturer of the goods.
148 . Commonwealth liability for goods that are
defective only because of compliance with Commonwealth mandatory standard
(1) If a person
(however described) against whom a defective goods action is brought raises
the defence that the goods had the alleged safety defect only because there
was compliance with a Commonwealth mandatory standard for the goods, the
person must, as soon as practicable after raising that defence, give the
Commonwealth:
(a) a
prescribed notice of the action and of that defence; and
(b) a
copy of the person’s defence in the action.
(2) The giving of the
notice and defence makes the Commonwealth a defendant in the action.
(3) If, in the action,
the court finds that the person (the plaintiff ) by whom the action is brought
would, but for the defence referred to in subsection (1), have succeeded
against the person (other than the Commonwealth) against which the action is
brought, then:
(a) the
Commonwealth, and not the person (other than the Commonwealth) against which
the action is brought, is liable to pay the plaintiff for the amount of the
loss or damage caused by the safety defect; and
(b) the
court is to enter judgment against the Commonwealth for that amount; and
(c) the
court may make such orders for costs as the court considers just.
149 . Representative actions by the regulator
(1) The regulator may,
by application, commence a defective goods action on behalf of one or more
persons identified in the application who have suffered the loss or damage in
relation to which the action is commenced.
(2) The regulator may
only make the application if it has obtained the written consent of the
person, or each of the persons, on whose behalf the application is being made.
150 . Application of all or any provisions of this
Part etc. not to be excluded or modified
(1) Any term of a
contract (including a term that is not set out in the contract but is
incorporated in the contract by another term) that purports to exclude,
restrict or modify, or has the effect of excluding, restricting or modifying,
any of the following is void:
(a) the
application of all or any of the provisions of this Part;
(b) the
exercise of a right conferred by any of those provisions;
(c) any
liability under any of those provisions.
(2) A term of a
contract is not taken to exclude, restrict or modify the application of a
provision of this Part unless the term does so expressly or is inconsistent
with that provision.
Part 4-1 — Offences relating to unfair practices
Division 1 — False or misleading representations etc.
151 . False or misleading representations about
goods or services
(1) A person commits
an offence if the person, in trade or commerce, in connection with the supply
or possible supply of goods or services or in connection with the promotion by
any means of the supply or use of goods or services:
(a)
makes a false or misleading representation that goods are of a particular
standard, quality, value, grade, composition, style or model or have had a
particular history or particular previous use; or
(b)
makes a false or misleading representation that services are of a particular
standard, quality, value or grade; or
(c)
makes a false or misleading representation that goods are new; or
(d)
makes a false or misleading representation that a particular person has agreed
to acquire goods or services; or
(e)
makes a false or misleading representation that purports to be a testimonial
by any person relating to goods or services; or
(f)
makes a false or misleading representation concerning:
(i)
a testimonial by any person; or
(ii)
a representation that purports to be such a testimonial;
relating to goods or
services; or
(g)
makes a false or misleading representation that goods or services have
sponsorship, approval, performance characteristics, accessories, uses or
benefits; or
(h)
makes a false or misleading representation that the person making the
representation has a sponsorship, approval or affiliation; or
(i)
makes a false or misleading representation with respect
to the price of goods or services; or
(j)
makes a false or misleading representation concerning the availability of
facilities for the repair of goods or of spare parts for goods; or
(k)
makes a false or misleading representation concerning the place of origin of
goods; or
(l)
makes a false or misleading representation concerning the need for any goods
or services; or
(m)
makes a false or misleading representation concerning the existence, exclusion
or effect of any condition, warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); or
(n)
makes a false or misleading representation concerning a requirement to pay for
a contractual right that:
(i)
is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a guarantee under Division 1
of Part 3-2); and
(ii)
a person has under a law of the Commonwealth, a State or
a Territory (other than an unwritten law).
Note: For rules
relating to representations as to the country of origin of goods, see Part
5-3.
(2) For the purposes
of applying subsection (1) in relation to a proceeding concerning a
representation of a kind referred to in subsection (1)(e) or (f), the
representation is taken to be misleading unless evidence is adduced to the
contrary.
(3) To avoid doubt,
subsection (2) does not:
(a) have
the effect that, merely because such evidence to the contrary is adduced, the
representation is not misleading; or
(b) have
the effect of placing on any person an onus of proving that the representation
is not misleading.
(4) Subsection (1) is
an offence of strict liability.
Penalty
(5) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(6) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
152 . False or misleading representations about
sale etc. of land
(1) A person commits
an offence if the person, in trade or commerce, in connection with the sale or
grant, or the possible sale or grant, of an interest in land or in connection
with the promotion by any means of the sale or grant of an interest in land:
(a)
makes a false or misleading representation that the person making the
representation has a sponsorship, approval or affiliation; or
(b)
makes a false or misleading representation concerning the nature of the
interest in the land; or
(c)
makes a false or misleading representation concerning the price payable for
the land; or
(d)
makes a false or misleading representation concerning the location of the
land; or
(e)
makes a false or misleading representation concerning the characteristics of
the land; or
(f)
makes a false or misleading representation concerning the use to which the
land is capable of being put or may lawfully be put; or
(g)
makes a false or misleading representation concerning the existence or
availability of facilities associated with the land.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(2A) An offence
against subsection (1) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(2B) An offence
against subsection (1) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
Other
(3) This section does
not affect the application of any other provision of this Part in relation to
the supply or acquisition, or the possible supply or acquisition, of interests
in land.
153 . Misleading conduct relating to employment
(1) A person commits
an offence if the person, in relation to employment that is to be, or may be,
offered by the person or by another person, engages in conduct that is liable
to mislead persons seeking the employment as to:
(a) the
availability, nature, terms or conditions of the employment; or
(b) any
other matter relating to the employment.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(3) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(4) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
154 . Offering rebates, gifts, prizes etc.
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, offers any rebate, gift, prize or other free
item; and
(b) the
offer is connected with:
(i)
the supply or possible supply of goods or services; or
(ii)
the promotion by any means of the supply or use of goods
or services; or
(iii)
the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv)
the promotion by any means of the sale or grant of an
interest in land; and
(c) the
offer is made with the intention of not providing the rebate, gift, prize or
other free item, or of not providing it as offered.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers any rebate, gift, prize or other free
item; and
(b) the
offer is connected with:
(i)
the supply or possible supply of goods or services; or
(ii)
the promotion by any means of the supply or use of goods
or services; or
(iii)
the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv)
the promotion by any means of the sale or grant of an
interest in land; and
(c) the
person fails to provide the rebate, gift, prize or other free item, in
accordance with the offer, within the time specified in the offer or (if no
such time is specified) within a reasonable time after making the offer.
(3) Subsection (2)
does not apply if:
(a) the
person’s failure to provide the rebate, gift, prize or other free item
in accordance with the offer was due to the act or omission of another person,
or to some other cause beyond the person’s control; and
(b) the
person took reasonable precautions and exercised due diligence to avoid the
failure.
(4) Subsection (2)
does not apply to an offer that the person makes to another person if:
(a) the
person offers to the other person a different rebate, gift, prize or other
free item as a replacement; and
(b) the
other person agrees to receive the different rebate, gift, prize or other free
item.
(5) Strict liability
applies to subsections (1)(b) and (2)(b).
Penalty
(5A) An offence
against subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5B) An offence
against subsection (1) or (2) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
Other
(6) This section does
not affect the application of any other provision of this Part in relation to
the supply or acquisition, or the possible supply or acquisition, of interests
in land.
155 . Misleading conduct as to the nature etc. of
goods
(1) A person commits
an offence if the person, in trade or commerce, engages in conduct that is
liable to mislead the public as to the nature, the manufacturing process, the
characteristics, the suitability for their purpose or the quantity of any
goods.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(3) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(4) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
156 . Misleading conduct as to the nature etc. of
services
(1) A person commits
an offence if the person, in trade or commerce, engages in conduct that is
liable to mislead the public as to the nature, the characteristics, the
suitability for their purpose or the quantity of any services.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(3) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(4) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, advertises goods or services for supply at a
specified price; and
(b)
there are reasonable grounds for believing that the person will not be able to
offer for supply those goods or services at that price for a period that is,
and in quantities that are, reasonable, having regard to:
(i)
the nature of the market in which the person carries on
business; and
(ii)
the nature of the advertisement.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, advertises goods or services for supply at a
specified price; and
(b) the
person fails to offer such goods or services for supply at that price for a
period that is, and in quantities that are, reasonable having regard to:
(i)
the nature of the market in which the person carries on
business; and
(ii)
the nature of the advertisement.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(3A) An offence
against subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(3B) An offence
against subsection (1) or (2) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
Defence
(4) In a prosecution
of a person (the defendant ) under subsection (2), for failing to offer goods
or services to another person (the customer ), it is a defence if:
(a) the
defendant proves that:
(i)
he or she offered to supply, or to procure a third person
to supply, goods or services of the kind advertised to the customer within a
reasonable time, in a reasonable quantity and at the advertised price; or
(ii)
he or she offered to supply immediately, or to procure a
third person to supply within a reasonable time, equivalent goods or services
to the customer in a reasonable quantity and at the price at which the
first-mentioned goods or services were advertised; and
(b) in
either case, if the offer was accepted by the customer, the defendant proves
that he or she has so supplied, or procured a third person to supply, the
goods or services.
158 . Wrongly accepting payment
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, accepts payment or other consideration for goods
or services; and
(b) at
the time of the acceptance, the person intends not to supply the goods or
services.
(2) Strict liability
applies to subsection (1)(a).
(3) A person commits
an offence if:
(a) the
person, in trade or commerce, accepts payment or other consideration for goods
or services; and
(b) at
the time of the acceptance, the person intends to supply goods or services
materially different from the goods or services in respect of which the
payment or other consideration is accepted.
(4) Strict liability
applies to subsection (3)(a).
(5) A person commits
an offence if:
(a) the
person, in trade or commerce, accepts payment or other consideration for goods
or services; and
(b) at
the time of the acceptance, the person was reckless as to whether he or she
would be able to supply the goods or services:
(i)
within the period specified by or on behalf of the person
at or before the time the payment or other consideration was accepted; or
(ii)
if no period is specified at or before that time —
within a reasonable time.
(6) Strict liability
applies to subsection (5)(a).
(7) A person commits
an offence if:
(a) the
person, in trade or commerce, accepts payment or other consideration for goods
or services; and
(b) the
person fails to supply all the goods or services:
(i)
within the period specified by or on behalf of the person
at or before the time the payment or other consideration was accepted; or
(ii)
if no period is specified at or before that time —
within a reasonable time.
(8) Subsection (7)
does not apply if:
(a) the
person’s failure to supply all the goods or services within the period,
or within a reasonable time, was due to the act or omission of another person,
or to some other cause beyond the person’s control; and
(b) the
person took reasonable precautions and exercised due diligence to avoid the
failure.
(9) Subsection (7)
does not apply if:
(a) the
person offers to supply different goods or services as a replacement to the
person (the customer ) to whom the original supply was to be made; and
(b) the
customer agrees to receive the different goods or services.
(10) Subsection (7) is
an offence of strict liability.
Penalty
(10A) An offence
against subsection (1), (3), (5) or (7) committed by a body corporate is
punishable on conviction by a fine of not more than the greater of the
following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(10B) An offence
against subsection (1), (3), (5) or (7) committed by a person other than a
body corporate is punishable on conviction by a fine of not more than
$500,000.
Other
(11) Subsections (1),
(3), (5) and (7) apply whether or not the payment or other consideration that
the person accepted represents the whole or a part of the payment or other
consideration for the supply of the goods or services.
159 . Misleading representations about certain
business activities
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, makes a representation; and
(b) the
representation is false or misleading in a material particular; and
(c) the
representation concerns the profitability, risk or any other material aspect
of any business activity that the person has represented as one that can be,
or can be to a considerable extent, carried on at or from a person’s
place of residence.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, makes a representation; and
(b) the
representation is false or misleading in a material particular; and
(c) the
representation concerns the profitability, risk or any other material aspect
of any business activity:
(i)
that the person invites (whether by advertisement or
otherwise) other persons to engage or participate in, or to offer or apply to
engage or participate in; and
(ii)
that requires the performance of work by other persons,
or the investment of money by other persons and the performance by them of
work associated with the investment.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
160 . Application of provisions of this Division
to information providers
(1) Sections 151, 152,
155, 156 and 159 do not apply to a publication of matter by an information
provider if:
(a) in
any case — the information provider made the publication in the course
of carrying on a business of providing information; or
(b) if
the information provider is the Australian Broadcasting Corporation, the
Special Broadcasting Service Corporation or the holder of a licence granted
under the Broadcasting Services Act 1992 — the publication was by way of
a radio or television broadcast by the information provider.
(2) Subsection (1)
does not apply to a publication of an advertisement.
(3) Subsection (1)
does not apply to a publication of matter in connection with the supply or
possible supply of, or the promotion by any means of the supply or use of,
goods or services (the publicised goods or services ), if:
(a) the
publicised goods or services were goods or services of a kind supplied by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who supplies goods or services of the same kind
as the publicised goods or services; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
supplies goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1)
does not apply to a publication of matter in connection with the sale or
grant, or possible sale or grant, of, or the promotion by any means of the
sale or grant of, interests in land (the publicised interests in land ), if:
(a) the
publicised interests in land were interests of a kind sold or granted by the
information provider or, if the information provider is a body corporate, by a
body corporate that is related to the information provider; or
(b) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a person who sells or grants interests of the same kind as
the publicised interests in land; or
(c) the
publication was made on behalf of, or pursuant to a contract, arrangement or
understanding with, a body corporate that is related to a body corporate that
sells or grants interests of the same kind as the publicised interests in
land.
Division 2 — Unsolicited supplies
(1) A person commits
an offence if:
(a) the
person sends a credit card or a debit card, or an article that may be used as
a credit card and a debit card, to another person; and
(b)
either:
(i)
the person had issued the card; or
(ii)
the card was sent on behalf of the person who had issued
the card.
(2) Subsection (1)
does not apply if the person sends the card to the other person:
(a)
pursuant to a written request by the person who will be under a liability to
the person who issued the card or article in respect of the use of the card or
article; or
(b) in
renewal or replacement of, or in substitution for:
(i)
a card or article of the same kind previously sent to the
other person pursuant to a written request by the person who was under a
liability, to the person who issued the card previously so sent, in respect of
the use of that card; or
(ii)
a card or article of the same kind previously sent to the
other person and used for a purpose for which it was intended to be used.
(3) A person commits
an offence if the person takes any action that enables another person who has
a credit card to use the card as a debit card.
(4) A person commits
an offence if the person takes any action that enables another person who has
a debit card to use the card as a credit card.
(5) Subsection (3) or
(4) does not apply if the person takes the action in accordance with the other
person’s written request.
(6) Subsections (1),
(3) and (4) are offences of strict liability.
Penalty
(7) An offence against
subsection (1), (3) or (4) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(8) An offence against
subsection (1), (3) or (4) committed by a person other than a body corporate
is punishable on conviction by a fine of not more than $500,000.
162 . Assertion of right to payment for
unsolicited goods or services
(1) A person commits
an offence if the person, in trade or commerce, asserts a right to payment
from another person for unsolicited goods.
(2) A person commits
an offence if the person, in trade or commerce, asserts a right to payment
from another person for unsolicited services.
(3) A person commits
an offence if the person, in trade or commerce, sends to another person an
invoice or other document that:
(a)
states the amount of a payment, or sets out the charge, for unsolicited goods
or unsolicited services; and
(b) does
not contain a warning statement that complies with the requirements set out in
the regulations made for the purposes of section 40(3)(b).
(4) Subsection (1),
(2) or (3) does not apply if the person proves that he or she had reasonable
cause to believe that there was a right to the payment or charge.
(5) Subsections (1),
(2) and (3) are offences of strict liability.
Penalty
(6) An offence against
subsection (1), (2) or (3) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(7) An offence against
subsection (1), (2) or (3) committed by a person other than a body corporate
is punishable on conviction by a fine of not more than $500,000.
163 . Assertion of right to payment for
unauthorised entries or advertisements
(1) A person commits
an offence if the person asserts a right to payment from another person of a
charge for placing, in a publication, an entry or advertisement relating to:
(a) the
other person; or
(b) the
other person’s profession, business, trade or occupation.
(2) A person commits
an offence if the person sends to another person an invoice or other document
that:
(a)
states the amount of a payment, or sets out the charge, for placing, in a
publication, an entry or advertisement relating to:
(i)
the other person; or
(ii)
the other person’s profession, business, trade or
occupation; and
(b) does
not contain a warning statement that complies with the requirements set out in
the regulations made for the purposes of section 43(2)(b).
(3) Subsections (1)
and (2) do not apply if the person proves that he or she knew, or had
reasonable cause to believe, that the other person authorised the placing of
the entry or advertisement.
(4) Subsections (1)
and (2) do not apply to an entry or advertisement that is placed in a
publication published by a person who is:
(a) the
publisher of a publication that has an audited circulation of 10,000 copies or
more per week, as confirmed by the most recent audit of the publication by a
body specified in the regulations made for the purposes of section 43(3)(a);
or
(b) a
body corporate related to such a publisher; or
(c) the
Commonwealth, a State or a Territory, or an authority of the Commonwealth, a
State or a Territory; or
(d) a
person specified in regulations made for the purposes of section 43(3)(d).
(5) Subsections (1)
and (2) are offences of strict liability.
Penalty
(5A) An offence
against subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5B) An offence
against subsection (1) or (2) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
Other
(6) A person is not
taken for the purposes of this section to have authorised the placing of the
entry or advertisement, unless:
(a) a
document authorising the placing of the entry or advertisement has been signed
by the person or by another person authorised by him or her; and
(b) a
copy of the document has been given to the person before the right to payment
of a charge for the placing of the entry or advertisement is asserted; and
(c) the
document specifies:
(i)
the name and address of the person publishing the entry
or advertisement; and
(ii)
particulars of the entry or advertisement; and
(iii)
the amount of the charge for the placing of the entry or
advertisement, or the basis on which the charge is, or is to be, calculated.
164 . Participation in pyramid schemes
(1) A person commits
an offence if the person participates in a pyramid scheme.
(2) A person commits
an offence if the person induces another person to participate in a pyramid
scheme.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies goods; and
(b) the
goods have more than one displayed price; and
(c) the
supply takes place for a price that is not the lower, or lowest, of the
displayed prices.
Penalty:
(a) if
the person is a body corporate — $5,000; or
(b) if
the person is not a body corporate — $1,000.
(2) Subsection (1) is
an offence of strict liability.
166 . Single price to be specified in certain
circumstances
(1) A person commits
an offence if the person, in trade or commerce, in connection with:
(a) the
supply, or possible supply, to another person of goods or services of a kind
ordinarily acquired for personal, domestic or household use or consumption; or
(b) the
promotion by any means of the supply to another person, or of the use by
another person, of goods or services of a kind ordinarily acquired for
personal, domestic or household use or consumption;
makes a representation
with respect to an amount that, if paid, would constitute a part of the
consideration for the supply of the goods or services.
(2) A person is not
required to include, in the single price for goods, a charge that is payable
in relation to sending the goods from the supplier to the other person.
(3) Subsection (1)
does not apply if the person also:
(a)
specifies, in a prominent way and as a single figure, the single price for the
goods or services; and
(b) if,
in relation to goods:
(i)
the person does not include in the single price a charge
that is payable in relation to sending the goods from the supplier to the
other person; and
(ii)
the person knows, at the time of the representation, the
minimum amount of a charge in relation to sending the goods from the supplier
to the other person that must be paid by the other person;
specifies that minimum
amount.
(4) Subsection (1)
does not apply if the representation is made exclusively to a body corporate.
(5) For the purposes
of subsection (3)(a), the person is taken not to have specified a single price
for the goods or services in a prominent way unless the single price is at
least as prominent as the most prominent of the parts of the consideration for
the supply.
(6) Subsection (5)
does not apply in relation to services to be supplied under a contract if:
(a) the
contract provides for the supply of the services for the term of the contract;
and
(b) the
contract provides for periodic payments for the services to be made during the
term of the contract; and
(c) if
the contract also provides for the supply of goods — the goods are
directly related to the supply of the services.
(7) Subsection (1) is
an offence of strict liability.
Penalty
(8) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(9) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
Division 5 — Other unfair practices
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, induces a consumer to acquire goods or services
by representing that the consumer will, after the contract for the acquisition
of the goods or services is made, receive a rebate, commission or other
benefit in return for:
(i)
giving the person the names of prospective customers; or
(ii)
otherwise assisting the person to supply goods or
services to other consumers; and
(b) the
receipt of the rebate, commission or other benefit is contingent on an event
occurring after that contract is made.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(3) An offence against
subsection (1) committed by a body corporate is punishable on conviction by a
fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(4) An offence against
subsection (1) committed by a person other than a body corporate is punishable
on conviction by a fine of not more than $500,000.
(1) A person commits
an offence if:
(a) the
person uses physical force, or undue harassment or coercion; and
(b) the
physical force, or undue harassment or coercion is used in connection with:
(i)
the supply or possible supply of goods or services; or
(ii)
the payment for goods or services; or
(iii)
the sale or grant, or the possible sale or grant, of an
interest in land; or
(iv)
the payment for an interest in land.
(2) Subsection (1) is
an offence of strict liability.
Penalty
(2A) An offence
against subsection (1) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(2B) An offence
against subsection (1) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
Other
(3) Subsections
(1)(b)(iii) and (iv) do not affect the application of any other provision of
this Part in relation to the supply or acquisition, or the possible supply or
acquisition, of interests in land.
Part 4-2 — Offences relating to consumer transactions
Division 1 — Consumer guarantees
(1) A person commits
an offence if:
(a) the
person makes a supply to a consumer to which:
(i)
guarantees apply under Division 1 of Part 3-2; and
(ii)
a determination under subsection 66(1) applies; and
(b) a
notice that meets the requirements of the determination is not, in accordance
with the determination:
(i)
if the consumer takes delivery of the goods or services
at the supplier’s premises — displayed at those premises; or
(ii)
otherwise — drawn to the consumer’s attention
before the consumer agrees to the supply of the goods.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
Division 2 — Unsolicited consumer agreements
Subdivision A — Negotiating unsolicited consumer agreements
170 . Permitted hours for negotiating an
unsolicited consumer agreement
(1) A dealer commits
an offence if the dealer calls on a person for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related purpose:
(a) at
any time on a Sunday or a public holiday; or
(b)
before 9 am on any other day; or
(c)
after 6 pm on any other day (or after 5 pm if the other day is a Saturday).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1)
does not apply if the dealer calls on, or telephones, the person in accordance
with consent that:
(a) was
given by the person to the dealer or a person acting on the dealer’s
behalf; and
(b) was
not given in the presence of the dealer or a person acting on the
dealer’s behalf.
(3) Subsection (1) is
an offence of strict liability.
171 . Disclosing purpose and identity
(1) A dealer commits
an offence if the dealer:
(a)
calls on a person for the purpose of negotiating an unsolicited consumer
agreement, or for an incidental or related purpose; and
(b) does
not as soon as practicable and in any event before starting to negotiate:
(i)
clearly advise the person that the dealer’s purpose
is to seek the person’s agreement to a supply of the goods or services
concerned; and
(ii)
clearly advise the person that the dealer is obliged to
leave the premises immediately on request; and
(iii)
provide to the person such information relating to the
dealer’s identity as is prescribed by the regulations made for the
purposes of section 74(c).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
172 . Ceasing to negotiate on request
(1) A dealer commits
an offence if the dealer:
(a)
calls on a person at any premises for the purpose of negotiating an
unsolicited consumer agreement, or for an incidental or related purpose; and
(b) does
not leave the premises immediately on the request of:
(i)
the occupier of the premises, or any person acting with
the actual or apparent authority of the occupier; or
(ii)
the person (the prospective consumer ) with whom the
negotiations are being conducted.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) A dealer commits
an offence if:
(a) the
prospective consumer has made the request referred to in subsection (1)(b);
and
(b) the
dealer contacts the prospective consumer for the purpose of negotiating an
unsolicited consumer agreement (or for an incidental or related purpose)
within 30 days after the prospective consumer made the request.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(3) If the dealer is
not, or is not to be, the supplier of the goods or services to which the
negotiations relate, subsection (2) applies to that supplier, and any person
acting on behalf of the supplier, in the same way that it applies to the
dealer.
(4) Subsection (2)
does not apply to the dealer contacting the prospective consumer if:
(a) the
dealer is not, or is not to be, the supplier of the goods or services to which
the negotiations relate; and
(b) the
contact relates to a supply by another supplier.
(5) Subsections (1)
and (2) are offences of strict liability.
173 . Informing person of termination period etc.
(1) A dealer commits
an offence if the dealer makes an unsolicited consumer agreement with a
person, and:
(a)
before the agreement is made, the person is not given information as to the
following:
(i)
the person’s right to terminate the agreement
during the termination period;
(ii)
the way in which the person may exercise that right;
(iii)
such other matters as are prescribed by regulations made
for the purposes of section 76(a)(iii); or
(b) if
the agreement is made in the presence of both the dealer and the person
— the person is not given the information in writing; or
(c) if
the agreement is made by telephone — the person is not:
(i)
given the information by telephone; and
(ii)
subsequently given the information in writing; or
(d) the
form in which, and the way in which, the person is given the information does
not comply with any other requirements prescribed by regulations made for the
purposes of section 76(d).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) If:
(a) a
dealer contravenes subsection (1) in relation to an unsolicited consumer
agreement; and
(b) the
dealer is not, or is not to be, the supplier of the goods or services to which
the agreement relates;
the supplier of the
goods or services is also taken to have contravened subsection (1) in relation
to the agreement.
(3) Subsection (1) is
an offence of strict liability.
Subdivision B — Requirements for unsolicited consumer agreements etc.
174 . Requirement to give document to the consumer
(1) The dealer who
negotiated an unsolicited consumer agreement commits an offence if:
(a) the
agreement was not negotiated by telephone; and
(b) the
dealer does not give a copy of the agreement to the consumer under the
agreement immediately after the consumer signs the agreement.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) The dealer who
negotiated an unsolicited consumer agreement commits an offence if:
(a) the
agreement was negotiated by telephone; and
(b) the
dealer does not, within 5 business days after the agreement was made or such
longer period agreed by the parties, give to the consumer under the agreement:
(i)
personally; or
(ii)
by post; or
(iii)
with the consumer’s consent — by electronic
communication;
an agreement document
evidencing the agreement.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(3) Subsections (1)
and (2) are offences of strict liability.
175 . Requirements for all unsolicited consumer
agreements etc.
(1) The supplier under
an unsolicited consumer agreement commits an offence if the agreement, or (if
the agreement was negotiated by telephone) the agreement document, does not
comply with the following requirements:
(a) it
must set out in full all the terms of the agreement, including:
(i)
the total consideration to be paid or provided by the
consumer under the agreement or, if the total consideration is not
ascertainable at the time the agreement is made, the way in which it is to be
calculated; and
(ii)
any postal or delivery charges to be paid by the
consumer;
(b) its
front page must include a notice that:
(i)
conspicuously and prominently informs the consumer of the
consumer’s right to terminate the agreement; and
(ii)
conspicuously and prominently sets out any other
information prescribed by regulations made for the purposes of
section 79(b)(ii); and
(iii)
complies with any other requirements prescribed by
regulations made for the purposes of section 79(b)(iii);
(c) it
must be accompanied by a notice that:
(i)
may be used by the consumer to terminate the agreement;
and
(ii)
complies with any requirements prescribed by regulations
made for the purposes of section 79(c)(ii);
(d) it
must conspicuously and prominently set out in full:
(i)
the supplier’s name; and
(ii)
if the supplier has an ABN — the supplier’s
ABN; and
(iii)
if the supplier does not have an ABN but has an ACN
— the supplier’s ACN; and
(iv)
the supplier’s business address (not being a post
box) or, if the supplier does not have a business address, the
supplier’s residential address; and
(v)
if the supplier has an email address — the
supplier’s email address; and
(vi)
if the supplier has a fax number — the
supplier’s fax number;
(e) it
must be printed clearly or typewritten (apart from any amendments to the
printed or typewritten form, which may be handwritten);
(f) it
must be transparent.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
176 . Additional requirements for unsolicited
consumer agreements not negotiated by telephone
(1) The supplier under
an unsolicited consumer agreement that was not negotiated by telephone commits
an offence if the agreement does not comply with the following requirements:
(a) the
agreement must be signed by the consumer under the agreement;
(b) if
the agreement is signed by a person on the supplier’s behalf — the
agreement must state that the person is acting on the supplier’s behalf,
and must set out in full:
(i)
the person’s name; and
(ii)
the person’s business address (not being a post
box) or, if the person does not have a business address, the person’s
residential address; and
(iii)
if the person has an email address — the
person’s email address.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
(3) This section does
not limit the operation of section 175.
177 . Requirements for amendments of unsolicited
consumer agreements
(1) The supplier under
an unsolicited consumer agreement commits an offence if any amendments to the
agreement are not signed by both parties to the agreement.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
Subdivision C — Terminating unsolicited consumer agreements
178 . Obligations of suppliers on termination
(1) The supplier under
an unsolicited consumer agreement commits an offence if:
(a) the
agreement is terminated in accordance with section 82; and
(b) the
supplier does not, immediately upon being notified of the termination, return
or refund to the consumer under the agreement any consideration (or the value
of any consideration) that the consumer gave under the agreement or a related
contract or instrument.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
179 . Prohibition on supplies etc.
(1) The supplier under
an unsolicited consumer agreement commits an offence if:
(a) the
supplier:
(i)
supplies to the consumer under the agreement the goods or
services to be supplied under the agreement; or
(ii)
accepts any payment, or any other consideration, in
connection with those goods or services; or
(iii)
requires any payment, or any other consideration, in
connection with those goods or services; and
(b) the
supply, acceptance or requirement occurs during:
(i)
if the agreement was not negotiated by telephone —
the period starting on the day on which the agreement was made and ending at
the end of the tenth business day after the day on which the agreement was
made; or
(ii)
if the agreement was negotiated by telephone — the
period starting on the day on which the agreement was made and ending at the
end of the tenth business day after the day on which the consumer was given
the agreement document relating to the agreement.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Strict liability
applies to subsection (1)(a).
180 . Repayment of payments received after
termination
(1) The supplier under
an unsolicited consumer agreement commits an offence if:
(a) the
agreement is terminated in accordance with section 82; and
(b) the
supplier does not immediately refund to the consumer under the agreement any
payment:
(i)
that the consumer, or a person acting on the
consumer’s behalf, makes to the supplier after the termination; and
(ii)
that purports to be made under the agreement or a related
contract or instrument.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
181 . Prohibition on recovering amounts after
termination
(1) A person commits
an offence if:
(a) an
unsolicited consumer agreement is terminated in accordance with section 82;
and
(b) the
person:
(i)
brings, or asserts an intention to bring, legal
proceedings against the consumer; or
(ii)
takes, or asserts an intention to take, any other action
against the consumer;
in relation to an
amount alleged to be payable, under the agreement or a related contract or
instrument, by the consumer under the agreement.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) A person commits
an offence if:
(a) an
unsolicited consumer agreement is terminated in accordance with section 82;
and
(b) for
the purpose of recovering an amount alleged to be payable, under the agreement
or a related contract or instrument, by the consumer under the agreement, the
person:
(i)
places the consumer’s name, or causes the
consumer’s name to be placed, on a list of defaulters or debtors; or
(ii)
asserts an intention to place the consumer’s name,
or to cause the consumer’s name to be placed, on such a list.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(3) Subsection (1) is
an offence of strict liability.
(4) Strict liability
applies to subsection (2)(a).
182 . Certain provisions of unsolicited consumer
agreements void
(1) The supplier under
an unsolicited consumer agreement commits an offence if the agreement
includes, or purports to include, a provision (however described) that is, or
would be, void because of section 89(1).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) The supplier under
an unsolicited consumer agreement commits an offence if the supplier attempts
to enforce or rely on a provision (however described) that is void because of
section 89(1).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(3) Subsections (1)
and (2) are offences of strict liability.
(1) The supplier under
an unsolicited consumer agreement commits an offence if the supplier induces
the consumer to waive any right conferred by Division 2 of Part 3-2.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
184 . Application of this Division to persons to
whom rights of consumers and suppliers are assigned etc.
(1) This Division
applies in relation to a person to whom the rights of a consumer (the original
consumer) under a contract for the supply of goods or services are assigned or
transferred, or pass by operation of law, (whether from the original consumer
or from another person) as if the person were the original consumer.
(2) This Division
applies in relation to a person to whom the rights of a supplier (the original
supplier ) under a contract for the supply of goods or services are assigned
or transferred, or pass by operation of law, (whether from the original
supplier or from another person) as if the person were the original supplier.
185 . Application of this Division to supplies to
third parties
This Division applies
in relation to a contract for the supply of goods or services to a consumer
(the original consumer ) on the order of another person as if the other person
were also the consumer.
186 . Regulations may limit the application of
this Division
This Division (other
than section 170) does not apply, or provisions of this Division (other than
section 170) that are specified in regulations made for the purposes of
section 94 do not apply, to or in relation to:
(a)
circumstances of a kind specified in those regulations; or
(b)
agreements of a kind specified in those regulations; or
(c) the
conduct of businesses of a kind specified in those regulations.
187 . Application of this Division to certain
conduct covered by the Corporations Act
This Division does not
apply in relation to conduct to which section 736, 992A or 992AA of the
Corporations Act 2001 applies.
Note: Section 736 of
the Corporations Act 2001 prohibits hawking of securities. Section 992A of
that Act prohibits hawking of certain financial products. Section 992AA of
that Act prohibits hawking of interests in managed investment schemes (which
for the purposes of that Act include interests in notified foreign passport
funds).
Division 3 — Lay-by agreements
188 . Lay-by agreements must be in writing etc.
(1) A supplier of
goods who is a party to a lay-by agreement commits an offence if:
(a) the
agreement is not in writing; or
(b) a
copy of the agreement is not given to the consumer to whom the goods are, or
are to be, supplied.
Penalty:
(a) if
the person is a body corporate — $30,000; or
(b) if
the person is not a body corporate — $6,000.
(2) Subsection (1) is
an offence of strict liability.
(1) A supplier of
goods who is a party to a lay-by agreement commits an offence if the agreement
requires the consumer to pay a termination charge.
Penalty:
(a) if
the person is a body corporate — $30,000; or
(b) if
the person is not a body corporate — $6,000.
(2) Subsection (1)
does not apply if the termination charge is payable only if:
(a) the
agreement is terminated by the consumer; and
(b) the
supplier has not breached the agreement.
(3) A supplier of
goods who is a party to a lay-by agreement commits an offence if:
(a) the
agreement provides that a termination charge is payable; and
(b) the
amount of the charge is more than the supplier’s reasonable costs in
relation to the agreement.
Penalty:
(a) if
the person is a body corporate — $30,000; or
(b) if
the person is not a body corporate — $6,000.
(4) Subsections (1)
and (3) are offences of strict liability.
190 . Termination of lay-by agreements by
suppliers
(1) A supplier of
goods who is a party to a lay-by agreement commits an offence if the supplier
terminates the agreement.
Penalty:
(a) if
the person is a body corporate — $30,000; or
(b) if
the person is not a body corporate — $6,000.
(2) Subsection (1)
does not apply if:
(a) the
consumer who is a party to the agreement breached a term of the agreement; or
(b) the
supplier is no longer engaged in trade or commerce; or
(c) the
goods to which the agreement relates are no longer available.
(3) Subsection (1) is
an offence of strict liability.
(1) A supplier of
goods who is a party to a lay-by agreement commits an offence if:
(a) the
agreement is terminated by a party to the agreement; and
(b) the
supplier fails to refund to the consumer all the amounts paid by the consumer
under the agreement (other than any termination charge that is payable under
the agreement).
Penalty:
(a) if
the person is a body corporate — $30,000; or
(b) if
the person is not a body corporate — $6,000.
(2) Subsection (1) is
an offence of strict liability.
191A . Gift cards to be redeemable for at least 3
years
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies a gift card to a consumer; and
(b) the
day the gift card ceases to be redeemable is earlier than 3 years after the
day of that supply.
Penalty:
(a) if
the person is a body corporate—$30,000; or
(b) if
the person is not a body corporate—$6,000.
(2) Subsection (1) is
an offence of strict liability.
191B . When gift card ceases to be redeemable to
appear prominently on gift card
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies a gift card to a consumer; and
(b) one
of the following does not appear prominently on the gift card:
(i)
the date the gift card ceases to be redeemable;
(ii)
the month and year the gift card ceases to be redeemable;
(iii)
the date the gift card is supplied and a statement that
identifies the period during which the gift card is redeemable;
(iv)
the month and year the gift card is supplied and a
statement that identifies the period during which the gift card is redeemable;
(v)
the words “no expiry date” or words to that
effect.
Penalty:
(a) if
the person is a body corporate—$30,000; or
(b) if
the person is not a body corporate—$6,000.
(2) Subsection (1) is
an offence of strict liability.
191C . Terms and conditions not to allow
post-supply fees
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies a gift card to a consumer; and
(b) the
terms or conditions (however described) of the gift card allow or require the
payment of a post-supply fee in relation to the gift card.
Penalty:
(a) if
the person is a body corporate—$30,000; or
(b) if
the person is not a body corporate—$6,000.
(2) An offence against
subsection (1) is an offence of strict liability.
191D . Post-supply fees not to be demanded or
received
(1) A person commits
an offence if the person, in trade or commerce, demands or receives payment of
a post-supply fee in relation to a gift card.
Penalty:
(a) if
the person is a body corporate—$30,000; or
(b) if
the person is not a body corporate—$6,000.
(2) An offence against
subsection (1) is an offence of strict liability.
191E . Regulations may limit the application of
this Division
The regulations may
provide that some or all of the provisions of this Division do not apply to or
in relation to:
(a) gift
cards of a kind prescribed by the regulations; or
(b)
persons of a kind prescribed by the regulations; or
(c) gift
cards supplied in circumstances prescribed by the regulations.
192 . Prescribed requirements for warranties
against defects
(1) A person commits
an offence if the person, in connection with the supply, in trade or commerce,
of goods or services to a consumer:
(a)
gives to the consumer a document that evidences a warranty against defects and
that does not comply with the requirements prescribed for the purposes of
section 102(1); or
(b)
represents directly to the consumer that the goods or services are goods or
services to which such a warranty against defects relates.
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
193 . Repairers must comply with prescribed
requirements
(1) A person commits
an offence if:
(a) the
person accepts from another person goods that the other person acquired as a
consumer; and
(b) the
goods are accepted for the purpose of repairing them; and
(c) the
person does not give to the other person a notice that complies with the
requirements prescribed for the purposes of section 103(1).
Penalty:
(a) if
the person is a body corporate — $50,000; or
(b) if
the person is not a body corporate — $10,000.
(2) Subsection (1) is
an offence of strict liability.
Part 4-3 — Offences relating to safety of consumer goods and product
related services
194 . Supplying etc. consumer goods that do not
comply with safety standards
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies consumer goods of a particular kind;
and
(b) a
safety standard for consumer goods of that kind is in force; and
(c)
those goods do not comply with the standard.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply (other than for export)
consumer goods of a particular kind; and
(b) a
safety standard for consumer goods of that kind is in force; and
(c)
those goods do not comply with the standard.
(3) A person commits
an offence if:
(a) the
person, in or for the purposes of trade or commerce, manufactures, possesses
or has control of consumer goods of a particular kind; and
(b) a
safety standard for consumer goods of that kind is in force; and
(c)
those goods do not comply with the standard.
(4) Subsection (3)
does not apply if the person does not manufacture, possess or control the
goods for the purpose of supplying the goods (other than for export).
(5) A person commits
an offence if:
(a) the
person, in trade or commerce, exports consumer goods of a particular kind; and
(b) a
safety standard for consumer goods of that kind is in force; and
(c)
those goods do not comply with the standard.
(6) Subsection (5)
does not apply if the Commonwealth Minister has, by written notice given to
the person, approved the export of the goods under section 106(5).
(7) Subsections (1),
(2), (3) and (5) are offences of strict liability.
Penalty
(8) An offence against
subsection (1), (2), (3) or (5) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(9) An offence against
subsection (1), (2), (3) or (5) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
195 . Supplying etc. product related services that
do not comply with safety standards
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies product related services of a
particular kind; and
(b) a
safety standard for services of that kind is in force; and
(c)
those services do not comply with the standard.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply product related services of a
particular kind; and
(b) a
safety standard for services of that kind is in force; and
(c)
those services do not comply with the standard.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
196 . Requirement to nominate a safety standard
(1) A person commits
an offence if the person refuses or fails to comply with a request given to
the person under section 108.
Penalty:
(a) if
the person is a body corporate — $22,000; or
(b) if
the person is not a body corporate — $4,400.
(2) Subsection (1) is
an offence of strict liability.
Division 2 — Bans on consumer goods and product related services
197 . Supplying etc. consumer goods covered by a
ban
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies consumer goods of a particular kind;
and
(b)
either:
(i)
an interim ban on goods of that kind is in force in the
place where the supply occurs; or
(ii)
a permanent ban on goods of that kind is in force.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply (other than for export)
consumer goods of a particular kind; and
(b) the
supply would be prohibited by subsection (1).
(3) A person commits
an offence if:
(a) the
person, in or for the purposes of trade or commerce, manufactures, possesses
or has control of consumer goods of a particular kind; and
(b)
supply of the goods would be prohibited by subsection (1).
(4) Subsection (3)
does not apply if the person does not manufacture, possess or control the
goods for the purpose of supplying the goods (other than for export).
(5) A person commits
an offence if:
(a) the
person exports consumer goods of a particular kind; and
(b)
supply of the goods would be prohibited by subsection (1).
(6) Subsection (5)
does not apply if the Commonwealth Minister has, by written notice given to
the person, approved the export of the goods under section 118(5).
(7) Subsections (1),
(2), (3) and (5) are offences of strict liability.
Penalty
(8) An offence against
subsection (1), (2), (3) or (5) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(9) An offence against
subsection (1), (2), (3) or (5) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
198 . Supplying etc. product related services
covered by a ban
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies product related services of a
particular kind; and
(b)
either:
(i)
an interim ban on services of that kind is in force in
the place where the supply occurs; or
(ii)
a permanent ban on services of that kind is in force.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply product related services of a
particular kind; and
(b) the
supply would be prohibited by subsection (1).
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
Division 3 — Recall of consumer goods
199 . Compliance with recall orders
(1) A person commits
an offence if:
(a) a
recall notice for consumer goods is in force; and
(b) the
notice requires the person (other than the regulator) to do one or more
things; and
(c) the
person refuses or fails to comply with the notice.
(2) A person commits
an offence if:
(a) a
recall notice for consumer goods is in force; and
(b) the
person, in trade or commerce:
(i)
if the notice identifies a defect in, or a dangerous
characteristic of, the consumer goods — supplies consumer goods of the
kind to which the notice relates which contain that defect or have that
characteristic; or
(ii)
in any other case — supplies consumer goods of the
kind to which the notice relates.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
200 . Notification by persons who supply consumer
goods outside Australia if there is compulsory recall
(1) A person commits
an offence if:
(a) the
person is required by section 125(4) to give a copy of a notice to a
responsible Minister; and
(b) the
person refuses or fails to give the copy as required by that section.
Penalty:
(a) if
the person is a body corporate — $16,650; or
(b) if
the person is not a body corporate — $3,330.
(2) Subsection (1) is
an offence of strict liability.
201 . Notification requirements for a voluntary
recall of consumer goods
(1) A person commits
an offence if:
(a) the
person is required by section 128(2) to give a notice to the Commonwealth
Minister; and
(b) the
person refuses or fails to give the notice as required by that section.
Penalty:
(a) if
the person is a body corporate — $16,650; or
(b) if
the person is not a body corporate — $3,330.
(2) A person commits
an offence if:
(a) the
person is required by section 128(6) to give a copy of a notice to the
Commonwealth Minister; and
(b) the
person refuses or fails to give the copy as required by that section.
Penalty:
(a) if
the person is a body corporate — $16,650; or
(b) if
the person is not a body corporate — $3,330.
(3) Subsections (1)
and (2) are offences of strict liability.
Division 4 — Consumer goods, or product related services, associated
with death or serious injury or illness
202 . Suppliers to report consumer goods etc.
associated with the death or serious injury or illness of any person
(1) A person commits
an offence if:
(a) the
person is required by section 131 or 132 to give a notice to the Commonwealth
Minister; and
(b) the
person refuses or fails to give the notice as required by that section.
Penalty:
(a) if
the person is a body corporate — $16,650; or
(b) if
the person is not a body corporate — $3,330.
(2) Subsection (1) is
an offence of strict liability.
Part 4-4 — Offences relating to information standards
203 . Supplying etc. goods that do not comply with
information standards
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies goods of a particular kind; and
(b) an
information standard for goods of that kind is in force; and
(c) the
person has not complied with the standard in relation to the goods.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply goods of a particular kind;
and
(b) an
information standard for goods of that kind is in force; and
(c) the
person has not complied with the standard in relation to the goods.
(3) A person commits
an offence if:
(a) the
person, in or for the purposes of trade or commerce, manufactures, possesses
or has control of goods of a particular kind; and
(b) an
information standard for goods of that kind is in force; and
(c) the
person has not complied with the standard in relation to the goods.
(4) Subsection (3)
does not apply if the person does not manufacture, possess or control the
goods for the purpose of supplying the goods.
(5) Subsection (1),
(2) or (3) does not apply to goods that are intended to be used outside
Australia.
(6) Unless the
contrary is established, it is presumed, for the purposes of this section,
that goods are intended to be used outside Australia if either of the
following is applied to the goods:
(a) a
statement that the goods are for export only;
(b) a
statement indicating, by the use of words authorised by regulations made for
the purposes of section 136(6)(b) to be used for the purposes of section
136(6), that the goods are intended to be used outside Australia.
(7) Without limiting
subsection (6), a statement may, for the purposes of that subsection, be
applied to goods by being:
(a)
woven in, impressed on, worked into or annexed or affixed to the goods; or
(b)
applied to a covering, label, reel or thing in or with which the goods are
supplied.
(8) Subsections (1),
(2) and (3) are offences of strict liability.
Penalty
(9) An offence against
subsection (1), (2) or (3) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(10) An offence
against subsection (1), (2) or (3) committed by a person other than a body
corporate is punishable on conviction by a fine of not more than $500,000.
204 . Supplying etc. services that do not comply
with information standards
(1) A person commits
an offence if:
(a) the
person, in trade or commerce, supplies services of a particular kind; and
(b) an
information standard for services of that kind is in force; and
(c) the
person has not complied with the standard in relation to the services.
(2) A person commits
an offence if:
(a) the
person, in trade or commerce, offers for supply services of a particular kind;
and
(b) an
information standard for services of that kind is in force; and
(c) the
person has not complied with the standard in relation to the services.
(3) Subsections (1)
and (2) are offences of strict liability.
Penalty
(4) An offence against
subsection (1) or (2) committed by a body corporate is punishable on
conviction by a fine of not more than the greater of the following:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the commission of the
offence—3 times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the body corporate committed, or began committing, the
offence.
(5) An offence against
subsection (1) or (2) committed by a person other than a body corporate is
punishable on conviction by a fine of not more than $500,000.
Part 4-5 — Offences relating to substantiation notices
205 . Compliance with substantiation notices
(1) A person commits
an offence if the person:
(a) is
given a substantiation notice; and
(b)
refuses or fails to comply with it within the substantiation notice compliance
period for the notice.
Penalty:
(a) if
the person is a body corporate — $16,500; or
(b) if
the person is not a body corporate — $3,300.
(2) Subsection (1)
does not apply if:
(a) the
person is an individual; and
(b) the
person refuses or fails to give particular information or produce a particular
document in compliance with a substantiation notice; and
(c) the
information, or production of the document, might tend to incriminate the
individual or to expose the individual to a penalty.
(3) Subsection (1) is
an offence of strict liability.
206 . False or misleading information etc.
(1) A person commits
an offence if the person, in compliance or purported compliance with a
substantiation notice given by the regulator:
(a)
gives to the regulator false or misleading information; or
(b)
produces to the regulator documents that contain false or misleading
information.
Penalty:
(a) if
the person is a body corporate — $27,500; or
(b) if
the person is not a body corporate — $5,500.
(2) This section does
not apply to:
(a)
information that the person could not have known was false or misleading; or
(b) the
production to the regulator of a document containing false or misleading
information if the document is accompanied by a statement of the person that
the information is false or misleading.
(3) Subsection (1) is
an offence of strict liability.
207 . Reasonable mistake of fact
(1) In a prosecution
for a contravention of a provision of this Chapter, it is a defence if the
defendant proves that the contravention was caused by a reasonable mistake of
fact, including a mistake of fact caused by reasonable reliance on information
supplied by another person.
(2) However,
subsection (1) does not apply in relation to information relied upon by the
defendant that was supplied to the defendant by another person who was, at the
time when the contravention occurred:
(a) an
employee or agent of the defendant; or
(b) if
the defendant is a body corporate—a director, employee or agent of the
defendant.
(3) If a defence
provided by subsection (1) involves an allegation that a contravention was due
to reliance on information supplied by another person, the defendant is not
entitled to rely on that defence unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice giving such information as the defendant then had that would
identify or assist in identifying the other person.
208 . Act or default of another person etc.
(1) In a prosecution
for a contravention of a provision of this Chapter, it is a defence if the
defendant proves that:
(a) the
contravention was due to the act or default of another person, to an accident
or to some other cause beyond the defendant’s control; and
(b) the
defendant took reasonable precautions and exercised due diligence to avoid the
contravention.
(2) However,
subsection (1) does not apply in relation to the act or default of another
person who was, at the time when the contravention occurred:
(a) an
employee or agent of the defendant; or
(b) if
the defendant is a body corporate—a director, employee or agent of the
defendant.
(3) If a defence
provided by subsection (1) involves an allegation that a contravention was due
to the act or default of another person, the defendant is not entitled to rely
on that defence unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice giving such information as the defendant then had that would
identify or assist in identifying the other person.
209 . Publication of advertisements in the
ordinary course of business
In a prosecution for a
contravention of a provision of this Chapter that was committed by publication
of an advertisement, it is a defence if the defendant proves that:
(a) the
defendant is a person whose business it is to publish or arrange for the
publication of advertisements; and
(b) the
defendant received the advertisement for publication in the ordinary course of
business; and
(c) the
defendant did not know, and had no reason to suspect, that its publication
would amount to a contravention of such a provision.
210 . Supplying goods acquired for the purpose of
re-supply
(1) In a prosecution
for a contravention of a provision of this Chapter that was committed by
supplying goods in contravention of section 194 or 203, it is a defence if the
defendant proves that:
(a) the
goods were acquired by the defendant for the purpose of re-supply; and
(b) the
goods were so acquired from a person who carried on in Australia a business of
supplying such goods otherwise than as the agent of a person outside
Australia; and
(c) in
the case of a contravention of section 194 — the defendant:
(i)
did not know, and could not with reasonable diligence
have ascertained, that the goods did not comply with the safety standard to
which the contravention relates; or
(ii)
relied in good faith on a representation by the person
from whom the defendant acquired the goods that there was no safety standard
for such goods; and
(d) in
the case of a contravention of section 203 — the defendant:
(i)
did not know, and could not with reasonable diligence
have ascertained, that the defendant had not complied with the information
standard to which the contravention relates; or
(ii)
relied in good faith on a representation by the person
from whom the defendant acquired the goods that there was no information
standard for such goods.
Note: Section 194 is
about supply of consumer goods that do not comply with safety standards, and
section 203 is about supply of goods that do not comply with information
standards.
(2) A defendant is not
entitled to rely on the defence provided by subsection (1) unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice identifying the person from whom the defendant acquired the
goods.
211 . Supplying services acquired for the purpose
of re-supply
(1) In a prosecution
for a contravention of a provision of this Chapter that was committed by
supplying services in contravention of section 195 or 204, it is a defence if
the defendant proves that:
(a) the
services were acquired by the defendant for the purpose of re-supply; and
(b) the
services were so acquired from a person who carried on in Australia a business
of supplying such services otherwise than as the agent of a person outside
Australia; and
(c) in
the case of a contravention of section 195 — the defendant:
(i)
did not know, and could not with reasonable diligence
have ascertained, that the services did not comply with the safety standard to
which the contravention relates; or
(ii)
relied in good faith on a representation by the person
from whom the defendant acquired the services that there was no safety
standard for such services; and
(d) in
the case of a contravention of section 204 — the defendant:
(i)
did not know, and could not with reasonable diligence
have ascertained, that the defendant had not complied with the information
standard to which the contravention relates; or
(ii)
relied in good faith on a representation by the person
from whom the defendant acquired the services that there was no information
standard for such services.
Note: Section 195 is
about supply of product related services that do not comply with safety
standards, and section 204 is about supply of services that do not comply with
information standards.
(2) A defendant is not
entitled to rely on the defence provided by subsection (1) unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice identifying the person from whom the defendant acquired the
services.
212 . Prosecutions to be commenced within 3 years
A prosecution for an
offence against a provision of this Chapter may be commenced at any time
within 3 years after the commission of the offence.
213 . Preference must be given to compensation for
victims
If a court considers
that:
(a) it
is appropriate to impose a fine on a person (the defendant ) under this
Chapter in relation to:
(i)
a contravention of a provision of this Schedule; or
(ii)
an attempt to contravene such a provision; or
(iii)
aiding, abetting, counselling or procuring a person to
contravene such a provision; or
(iv)
inducing, or attempting to induce, a person, whether by
threats or promises or otherwise, to contravene such a provision; or
(v)
being in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person of such a provision;
or
(vi)
conspiring with others to contravene such a provision;
and
(b) it
is appropriate to order the defendant to pay compensation to a person who has
suffered loss or damage as result of that contravention or conduct; and
(c) the
defendant does not have sufficient financial resources to pay both the fine
and the compensation;
the court must give
preference to making an order for compensation.
214 . Penalties for contraventions of the same
nature etc.
(1) If:
(a) a
person is convicted of 2 or more offences constituted by, or relating to,
contraventions of the same provision of this Chapter; and
(b) the
contraventions appear to the court:
(i)
to have been of the same nature or a substantially
similar nature; and
(ii)
to have occurred at or about the same time;
the court must not, in
respect of the offences, impose on the person fines that, in the aggregate,
exceed the maximum fine that would be applicable in respect of one offence by
that person against that provision.
(2) This section
applies whether or not the person is also convicted of an offence or offences
constituted by, or relating to, another contravention or other contraventions
of that provision that were of a different nature or occurred at a different
time.
215 . Penalties for previous contraventions of the
same nature etc.
(1) If:
(a) a
person is convicted of an offence constituted by, or relating to, a
contravention of a provision of this Chapter; and
(b) a
fine has, or fines have, previously been imposed on the person by the court
for an offence or offences constituted by, or relating to, another
contravention or other contraventions of the same provision; and
(c) the
contravention, or each of the contraventions, mentioned in paragraph (b)
appear to the court:
(i)
to have been of the same nature as, or a substantially
similar nature to, the contravention mentioned in paragraph (a); and
(ii)
to have occurred at or about the same time as the
contravention mentioned in paragraph (a);
the court must not, in
respect of the offence mentioned in paragraph (a), impose on the person a fine
that exceeds the amount (if any) by which the maximum fine applicable in
respect of that offence is greater than the amount of the fine, or the sum of
the amounts of the fines, referred to in paragraph (b).
(2) This section
applies whether or not a fine has, or fines have, also previously been imposed
on the person for an offence or offences constituted by, or relating to, a
contravention or contraventions of that provision that were of a different
nature or occurred at a different time.
216 . Granting of injunctions etc.
In proceedings against
a person for a contravention of a provision of this Chapter, the court may:
(a)
grant an injunction under Division 2 of Part 5-2 against the person in
relation to:
(i)
the conduct that constitutes, or is alleged to
constitute, the contravention; or
(ii)
other conduct of that kind; or
(b) make
an order under section 246, 247 or 248 in relation to the contravention.
217 . Criminal proceedings not to be brought for
contraventions of Chapter 2 or 3
Criminal proceedings
do not lie against a person only because the person:
(a) has
contravened a provision of Chapter 2 or 3; or
(b) has
attempted to contravene such a provision; or
(c) has
aided, abetted, counselled or procured a person to contravene such a
provision; or
(d) has
induced, or attempted to induce, a person, whether by threats or promises or
otherwise, to contravene such a provision; or
(e) has
been in any way, directly or indirectly, knowingly concerned in, or party to,
the contravention by a person of such a provision; or
(f) has
conspired with others to contravene such a provision.
Chapter 5 — Enforcement and remedies
218 . Regulator may accept undertakings
(1) The regulator may
accept a written undertaking given by a person for the purposes of this
section in connection with a matter in relation to which the regulator has a
power or function under this Schedule.
(2) The person may,
with the consent of the regulator, withdraw or vary the undertaking at any
time.
(3) If the regulator
considers that the person who gave the undertaking has breached any of its
terms, the regulator may apply to a court for an order under subsection (4).
(4) If the court is
satisfied that the person has breached a term of the undertaking, the court
may make all or any of the following orders:
(a) an
order directing the person to comply with that term of the undertaking;
(b) an
order directing the person to pay to the Commonwealth, or to a State or
Territory, an amount up to the amount of any financial benefit that the person
has obtained directly or indirectly and that is reasonably attributable to the
breach;
(c) any
order that the court considers appropriate directing the person to compensate
any other person who has suffered loss or damage as a result of the breach;
(d) any
other order that the court considers appropriate.
Division 2 — Substantiation notices
219 . Regulator may require claims to be
substantiated etc.
(1) This section
applies if a person has, in trade or commerce, made a claim or representation
promoting, or apparently intended to promote:
(a) a
supply, or possible supply, of goods or services by the person or another
person; or
(b) a
sale or grant, or possible sale or grant, of an interest in land by the person
or another person; or
(c)
employment that is to be, or may be, offered by the person or another person.
(2) The regulator may
give the person who made the claim or representation a written notice that
requires the person to do one or more of the following:
(a) give
information and/or produce documents to the regulator that could be capable of
substantiating or supporting the claim or representation;
(b) if
the claim or representation relates to a supply, or possible supply, of goods
or services by the person or another person — give information and/or
produce documents to the regulator that could be capable of substantiating:
(i)
the quantities in which; and
(ii)
the period for which;
the person or other
person is or will be able to make such a supply (whether or not the claim or
representation relates to those quantities or that period);
(c) give
information and/or produce documents to the regulator that are of a kind
specified in the notice;
within 21 days after
the notice is given to the person who made the claim or representation.
(3) Any kind of
information or documents that the regulator specifies under subsection (2)(c)
must be a kind that the regulator is satisfied is relevant to:
(a)
substantiating or supporting the claim or representation; or
(b) if
the claim or representation relates to a supply, or possible supply, of goods
or services by the person or another person — substantiating the
quantities in which, or the period for which, the person or other person is or
will be able to make such a supply.
(4) The notice must:
(a) name
the person to whom it is given; and
(b)
specify the claim or representation to which it relates; and
(c)
explain the effect of sections 220, 221 and 222.
(5) The notice may
relate to more than one claim or representation that the person has made.
(6) This section does
not apply to a person who made the claim or representation if the person:
(a) is
an information provider; and
(b) made
the claim or representation by publishing it on behalf of another person in
the course of carrying on a business of providing information; and
(c) does
not have a commercial relationship with the other person other than for the
purpose of:
(i)
publishing claims or representations promoting, or
apparently intended to promote, the other person’s business or other
activities; or
(ii)
the other person supplying goods or services, or selling
or granting interests in land to the person.
220 . Extending periods for complying with
substantiation notices
(1) A person who has
been given a substantiation notice may, at any time within 21 days after the
notice was given to the person by the regulator, apply in writing to the
regulator for an extension of the period for complying with the notice.
(2) The regulator may,
by written notice given to the person, extend the period within which the
person must comply with the notice.
221 . Compliance with substantiation notices
(1) A person who is
given a substantiation notice must comply with it within the substantiation
notice compliance period for the notice.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) The substantiation
notice compliance period for a substantiation notice is:
(a) the
period of 21 days specified in the notice; or
(b) if
the period for complying with the notice has been extended under section 220
— the period as so extended;
and includes (if an
application has been made under section 220(1) for an extension of the period
for complying with the notice) the period up until the time when the applicant
is given notice of the regulator’s decision on the application.
(3) Despite subsection
(1), an individual may refuse or fail to give particular information or
produce a particular document in compliance with a substantiation notice on
the ground that the information or production of the document might tend to
incriminate the individual or to expose the individual to a penalty.
222 . False or misleading information etc.
(1) A person must not,
in compliance or purported compliance with a substantiation notice given by
the regulator:
(a) give
to the regulator false or misleading information; or
(b)
produce to the regulator documents that contain false or misleading
information.
Note: A pecuniary
penalty may be imposed for a contravention of this subsection.
(2) This section does
not apply to:
(a)
information that the person could not have known was false or misleading; or
(b) the
production to the regulator of a document containing false or misleading
information if the document is accompanied by a statement of the person that
the information is false or misleading.
Division 3 — Public warning notices
223 . Regulator may issue a public warning notice
(1) The regulator may
issue to the public a written notice containing a warning about the conduct of
a person if:
(a) the
regulator has reasonable grounds to suspect that the conduct may constitute a
contravention of a provision of Chapter 2, 3 or 4; and
(b) the
regulator is satisfied that one or more other persons has suffered, or is
likely to suffer, detriment as a result of the conduct; and
(c) the
regulator is satisfied that it is in the public interest to issue the notice.
(2) Without limiting
subsection (1), if:
(a) a
person refuses to respond to a substantiation notice given by the regulator to
the person, or fails to respond to the notice before the end of the
substantiation notice compliance period for the notice; and
(b) the
regulator is satisfied that it is in the public interest to issue a notice
under this subsection;
the regulator may
issue to the public a written notice containing a warning that the person has
refused or failed to respond to the substantiation notice within that period,
and specifying the matter to which the substantiation notice related.
Division 1 — Pecuniary penalties
(1) If a court is
satisfied that a person:
(a) has
contravened any of the following provisions:
(i)
a provision of Part 2-2 (which is about unconscionable
conduct);
(ii)
a provision of Part 3-1 (which is about unfair
practices);
(iii)
section 66(2) (which is about display notices);
(iv)
a provision (other than section 85) of Division 2 of Part
3-2 (which is about unsolicited consumer agreements);
(v)
a provision (other than section 96(2)) of Division 3 of
Part 3-2 (which is about lay-by agreements);
(va)
section 99B(1), 99C, 99D(1), 99E or 99F(2) (which are about gift cards);
(vi)
section 100(1) or (3) or 101(3) or (4) (which are about
proof of transactions and itemised bills);
(vii)
section 102(2) or 103(2) (which are about prescribed
requirements for warranties and repairers);
(viii)
section 106(1), (2), (3) or (5), 107(1) or (2), 118(1),
(2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1)
or 132(1) (which are about safety of consumer goods and product related
services);
(ix)
section 136(1), (2) or (3) or 137(1) or (2) (which are
about information standards);
(x)
section 221(1) or 222(1) (which are about substantiation
notices); or
(b) has
attempted to contravene such a provision; or
(c) has
aided, abetted, counselled or procured a person to contravene such a
provision; or
(d) has
induced, or attempted to induce, a person, whether by threats or promises or
otherwise, to contravene such a provision; or
(e) has
been in any way, directly or indirectly, knowingly concerned in, or party to,
the contravention by a person of such a provision; or
(f) has
conspired with others to contravene such a provision;
the court may order
the person to pay to the Commonwealth, State or Territory, as the case may be,
such pecuniary penalty, in respect of each act or omission by the person to
which this section applies, as the court determines to be appropriate.
(2) In determining the
appropriate pecuniary penalty, the court must have regard to all relevant
matters including:
(a) the
nature and extent of the act or omission and of any loss or damage suffered as
a result of the act or omission; and
(b) the
circumstances in which the act or omission took place; and
(c)
whether the person has previously been found by a court in proceedings under
Chapter 4 or this Part to have engaged in any similar conduct.
(3) The pecuniary
penalty payable under subsection (1) is not to exceed the amount worked out
using the following table:
Amount of pecuniary penalty | ||
---|---|---|
Item |
For each act or omission to which this section applies that relates to... |
the pecuniary penalty is not to exceed... |
1 |
a provision of Part 2-2 |
(a) if the person is a body corporate — the
greater of the amounts mentioned in subsection (3A); or (b) if the person is not a body corporate —
$500,000. |
2 |
a provision of Part 3-1 (other than section 47(1)) |
(a) if the person is a body corporate — the
greater of the amounts mentioned in subsection (3A); or (b) if the person is not a body corporate —
$500,000. |
3 |
(a) if the person is a body corporate —
$5,000; or (b) if the person is not a body corporate —
$1,000. | |
4 |
(a) if the person is a body corporate —
$50,000; or (b) if the person is not a body corporate —
$10,000. | |
5 |
a provision of Division 2 of Part 3-2 (other than section 85) |
(a) if the person is a body corporate —
$50,000; or (b) if the person is not a body corporate —
$10,000. |
6 |
a provision of Division 3 of Part 3-2 (other than section 96(2)) |
(a) if the person is a body corporate —
$30,000; or (b) if the person is not a body corporate —
$6,000. |
6A |
section 99B(1), 99C, 99D(1), 99E or 99F(2) |
(a) if the person is a body corporate—$30,000; or (b) if the person is not a body corporate—$6,000. |
7 |
section 100(1) or (3) or 101(3) or (4) |
(a) if the person is a body corporate —
$15,000; or (b) if the person is not a body corporate —
$3,000. |
8 |
section 102(2) or 103(2) |
(a) if the person is a body corporate —
$50,000; or (b) if the person is not a body corporate —
$10,000. |
9 |
section 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5) or
119(1) or (2) |
(a) if the person is a body corporate — the
greater of the amounts mentioned in subsection (3A); or (b) if the person is not a body corporate —
$500,000. |
10 |
section 125(4) |
(a) if the person is a body corporate —
$16,500; or (b) if the person is not a body corporate —
$3,300. |
11 |
section 127(1) or (2) |
(a) if the person is a body corporate — the
greater of the amounts mentioned in subsection (3A); or (b) if the person is not a body corporate —
$500,000. |
12 |
section 128(2) or (6), 131(1) or 132(1) |
(a) if the person is a body corporate —
$16,500; or (b) if the person is not a body corporate —
$3,300. |
13 |
section 136(1), (2) or (3) or 137(1) or (2) |
(a) if the person is a body corporate — the
greater of the amounts mentioned in subsection (3A); or (b) if the person is not a body corporate —
$500,000. |
14 |
section 221(1) |
(a) if the person is a body corporate —
$16,500; or (b) if the person is not a body corporate —
$3,300. |
15 |
section 222(1) |
(a) if the person is a body corporate —
$27,500; or (b) if the person is not a body corporate —
$5,500. |
(3A) For the purposes
of items 1, 2, 9, 11 and 13 of the table in subsection (3), the amounts are as
follows:
(a)
$10,000,000;
(b) if
the court can determine the value of the benefit that the body corporate, and
any body corporate related to the body corporate, have obtained directly or
indirectly and that is reasonably attributable to the act or omission—3
times the value of that benefit;
(c) if
the court cannot determine the value of that benefit—10% of the annual
turnover of the body corporate during the 12-month period ending at the end of
the month in which the act or omission occurred or started to occur.
(4) If conduct
constitutes a contravention of 2 or more provisions referred to in subsection
(1)(a):
(a) a
proceeding may be instituted under this Schedule against a person in relation
to the contravention of any one or more of the provisions; but
(b) a
person is not liable to more than one pecuniary penalty under this section in
respect of the same conduct.
225 . Pecuniary penalties and offences
(1) A court must not
make an order under section 224 against a person in relation to either of the
following matters (a consumer protection breach ):
(a) a
contravention of a provision referred to in section 224(1)(a);
(b)
conduct referred to in section 224(1)(b), (c), (d), (e) or (f) that relates to
a contravention of such a provision;
if the person has been
convicted of an offence constituted by conduct that is substantially the same
as the conduct constituting the consumer protection breach.
(2) Proceedings for an
order under section 224 against a person in relation to a consumer protection
breach are stayed if:
(a)
criminal proceedings are started or have already been started against the
person for an offence; and
(b) the
offence is constituted by conduct that is substantially the same as the
conduct alleged to constitute the consumer protection breach.
The proceedings for
the order may be resumed if the person is not convicted of the offence.
Otherwise, the proceedings are dismissed.
(3) Criminal
proceedings may be started against a person for conduct that is substantially
the same as conduct constituting a consumer protection breach regardless of
whether an order under section 224 has been made against the person in respect
of the breach.
(4) Evidence of
information given, or evidence of the production of documents, by an
individual is not admissible in criminal proceedings against the individual
if:
(a) the
individual previously gave the evidence or produced the documents in
proceedings for an order under section 224 against the individual in relation
to a consumer protection breach (whether or not the order was made); and
(b) the
conduct alleged to constitute the offence is substantially the same as the
conduct that was claimed to constitute the consumer protection breach.
However, this does not
apply to a criminal proceeding in respect of the falsity of the evidence given
by the individual in the proceedings for the order.
If, in proceedings
under section 224 against a person other than a body corporate, it appears to
a court that the person has, or may have:
(a)
engaged in conduct in contravention of a provision referred to in subsection
(1)(a) of that section; or
(b)
engaged in conduct referred to in subsection (1)(b), (c), (d), (e) or (f) of
that section that relates to a contravention of such a provision;
but that the person
acted honestly and reasonably and, having regard to all the circumstances of
the case, ought fairly to be excused, the court may relieve the person either
wholly or partly from liability to a pecuniary penalty under that section.
227 . Preference must be given to compensation for
victims
If a court considers
that:
(a) it
is appropriate to order a person (the defendant ) to pay a pecuniary penalty
under section 224 in relation to:
(i)
a contravention of a provision referred to in subsection
(1)(a) of that section; or
(ii)
conduct referred to in subsection (1)(b), (c), (d), (e)
or (f) of that section that relates to a contravention such a provision; and
(b) it
is appropriate to order the defendant to pay compensation to a person who has
suffered loss or damage as result of that contravention or conduct; and
(c) the
defendant does not have sufficient financial resources to pay both the
pecuniary penalty and the compensation;
the court must give
preference to making an order for compensation.
228 . Civil action for recovery of pecuniary
penalties
(1) The regulator may
institute a proceeding in a court for the recovery on behalf of the
Commonwealth, a State or a Territory, as the case may be, of a pecuniary
penalty referred to in section 224.
(2) A proceeding under
subsection (1) may be commenced at any time within 6 years after the
contravention or conduct.
229 . Indemnification of officers
(1) A body corporate
(the first body ), or a body corporate related to the first body, commits an
offence if it indemnifies a person (whether by agreement or by making a
payment and whether directly or through an interposed entity) against either
of the following liabilities incurred as an officer (within the meaning of the
Corporations Act 2001 ) of the first body:
(a) a
liability to pay a pecuniary penalty under section 224;
(b)
legal costs incurred in defending or resisting proceedings in which the person
is found to have such a liability.
Penalty: $2,750.
(2) For the purposes
of subsection (1), the outcome of proceedings is the outcome of the
proceedings and any appeal in relation to the proceedings.
230 . Certain indemnities not authorised and
certain documents void
(1) Section 229 does
not authorise anything that would otherwise be unlawful.
(2) Anything that
purports to indemnify a person against a liability is void to the extent that
it contravenes section 229.
(1) A court may grant
an injunction, in such terms as the court considers appropriate, if the court
is satisfied that a person has engaged, or is proposing to engage, in conduct
that constitutes or would constitute:
(a) a
contravention of a provision of Chapter 2, 3 or 4; or
(b)
attempting to contravene such a provision; or
(c)
aiding, abetting, counselling or procuring a person to contravene such a
provision; or
(d)
inducing, or attempting to induce, whether by threats, promises or otherwise,
a person to contravene such a provision; or
(e)
being in any way, directly or indirectly, knowingly concerned in, or party to,
the contravention by a person of such a provision; or
(f)
conspiring with others to contravene such a provision.
(2) The court may
grant the injunction on application by the regulator or any other person.
(3) Subsection (1)
applies in relation to conduct constituted by applying or relying on, or
purporting to apply or rely on, a term of a contract that has been declared
under section 250 to be an unfair term as if the conduct were a contravention
of a provision of Chapter 2.
(4) The power of the
court to grant an injunction under subsection (1) restraining a person from
engaging in conduct may be exercised:
(a)
whether or not it appears to the court that the person intends to engage
again, or to continue to engage, in conduct of a kind referred to in that
subsection; and
(b)
whether or not the person has previously engaged in conduct of that kind; and
(c)
whether or not there is an imminent danger of substantial damage to any other
person if the person engages in conduct of that kind.
(5) Without limiting
subsection (1), the court may grant an injunction under that subsection
restraining a person from carrying on a business or supplying goods or
services (whether or not as part of, or incidental to, the carrying on of
another business):
(a) for
a specified period; or
(b)
except on specified terms and conditions.
(6) Without limiting
subsection (1), the court may grant an injunction under that subsection
requiring a person to do any of the following:
(a)
refund money;
(b)
transfer property;
(c)
honour a promise;
(d)
destroy or dispose of goods.
(7) The power of the
court to grant an injunction under subsection (1) requiring a person to do an
act or thing may be exercised:
(a)
whether or not it appears to the court that the person intends to refuse or
fail again, or to continue to refuse or fail, to do that act or thing; and
(b)
whether or not the person has previously refused or failed to do that act or
thing; and
(c)
whether or not there is an imminent danger of substantial damage to any other
person if the person refuses or fails to do that act or thing.
If an application is
made under section 232, the court may, if it considers that it is appropriate
to do so, grant an injunction under this section by consent of all the parties
to the proceedings, whether or not the court is satisfied as required by
section 232(1).
(1) If an application
is made under section 232, the court may, if it considers it is desirable to
do so, grant an interim injunction under this subsection pending the
determination of the application.
(2) If a responsible
Minister or the regulator made the application under section 232, the court
must not require the applicant or any other person to give any undertakings as
to damages as a condition of granting the interim injunction.
(3) If:
(a) in a
case to which subsection (2) does not apply the court would, but for this
subsection, require a person to give an undertaking as to damages or costs;
and
(b) a
responsible Minister gives the undertaking;
the court must accept
the undertaking by the responsible Minister and must not require a further
undertaking from any other person.
235 . Variation and discharge of injunctions
A court may vary or
discharge an injunction (including an interim injunction) that it has granted
under this Division.
(1) If:
(a) a
person (the claimant ) suffers loss or damage because of the conduct of
another person; and
(b) the
conduct contravened a provision of Chapter 2 or 3;
the claimant may
recover the amount of the loss or damage by action against that other person,
or against any person involved in the contravention.
(2) An action under
subsection (1) may be commenced at any time within 6 years after the day on
which the cause of action that relates to the conduct accrued.
Division 4 — Compensation orders etc. for injured persons and orders for
non-party consumers
Subdivision A — Compensation orders etc. for injured persons
237 . Compensation orders etc. on application by
an injured person or the regulator
(1) A court may:
(a) on
application of a person (the injured person ) who has suffered, or is likely
to suffer, loss or damage because of the conduct of another person that:
(i)
was engaged in a contravention of a provision of Chapter
2, 3 or 4; or
(ii)
constitutes applying or relying on, or purporting to
apply or rely on, a term of a contract that has been declared under section
250 to be an unfair term; or
(b) on
the application of the regulator made on behalf of one or more such injured
persons;
make such order or
orders as the court thinks appropriate against the person who engaged in the
conduct, or a person involved in that conduct.
Note 1: For
applications for an order or orders under this subsection, see section 242.
Note 2: The orders
that the court may make include all or any of the orders set out in section
243.
(2) The order must be
an order that the court considers will:
(a)
compensate the injured person, or any such injured persons, in whole or in
part for the loss or damage; or
(b)
prevent or reduce the loss or damage suffered, or likely to be suffered, by
the injured person or any such injured persons.
(3) An application
under subsection (1) may be made at any time within 6 years after the day on
which:
(a) if
subsection (1)(a)(i) applies — the cause of action that relates to the
conduct referred to in that subsection accrued; or
(b) if
subsection (1)(a)(ii) applies — the declaration referred to in that
subsection is made.
238 . Compensation orders etc. arising out of
other proceedings
(1) If a court finds,
in a proceeding instituted under a provision of Chapter 4 or this Chapter
(other than this section), that a person (the injured person ) who is a party
to the proceeding has suffered, or is likely to suffer, loss or damage because
of the conduct of another person that:
(a) was
engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(b)
constitutes applying or relying on, or purporting to apply or rely on, a term
of a contract that has been declared under section 250 to be an unfair term;
the court may make
such order or orders as it thinks appropriate against the person who engaged
in the conduct, or a person involved in that conduct.
Note: The orders that
the court may make include all or any of the orders set out in section 243.
(2) The order must be
an order that the court considers will:
(a)
compensate the injured person in whole or in part for the loss or damage; or
(b)
prevent or reduce the loss or damage.
Subdivision B — Orders for non-party consumers
239 . Orders to redress etc. loss or damage
suffered by non-party consumers
(1) If:
(a) a
person:
(i)
engaged in conduct (the contravening conduct ) in
contravention of a provision of Chapter 2, Part 3-1, Division 2, 3 or 4 of
Part 3-2 or Chapter 4; or
(ii)
is a party to a contract who is advantaged by a term (the
declared term ) of the contract in relation to which a court has made a
declaration under section 250; and
(b) the
contravening conduct or declared term caused, or is likely to cause, a class
of persons to suffer loss or damage; and
(c) the
class includes persons who are non-party consumers in relation to the
contravening conduct or declared term;
a court may, on the
application of the regulator, make such order or orders (other than an award
of damages) as the court thinks appropriate against a person referred to in
subsection (2) of this section.
Note 1: For
applications for an order or orders under this subsection, see section 242.
Note 2: The orders
that the court may make include all or any of the orders set out in section
243.
(2) An order under
subsection (1) may be made against:
(a) if
subsection (1)(a)(i) applies — the person who engaged in the
contravening conduct, or a person involved in that conduct; or
(b) if
subsection (1)(a)(ii) applies — a party to the contract who is
advantaged by the declared term.
(3) The order must be
an order that the court considers will:
(a)
redress, in whole or in part, the loss or damage suffered by the non-party
consumers in relation to the contravening conduct or declared term; or
(b)
prevent or reduce the loss or damage suffered, or likely to be suffered, by
the non-party consumers in relation to the contravening conduct or declared
term.
(4) An application
under subsection (1) may be made at any time within 6 years after the day on
which:
(a) if
subsection (1)(a)(i) applies — the cause of action that relates to the
contravening conduct accrued; or
(b) if
subsection (1)(a)(ii) applies — the declaration is made.
240 . Determining whether to make a redress order
etc. for non-party consumers
(1) In determining
whether to make an order under section 239(1) against a person referred to in
section 239(2)(a), the court may have regard to the conduct of the person, and
of the non-party consumers in relation to the contravening conduct, since the
contravention occurred.
(2) In determining
whether to make an order under section 239(1) against a person referred to in
section 239(2)(b), the court may have regard to the conduct of the person, and
of the non-party consumers in relation to the declared term, since the
declaration was made.
(3) In determining
whether to make an order under section 239(1), the court need not make a
finding about either of the following matters:
(a)
which persons are non-party consumers in relation to the contravening conduct
or declared term;
(b) the
nature of the loss or damage suffered, or likely to be suffered, by such
persons.
241 . When a non-party consumer is bound by a
redress order etc.
(1) A non-party
consumer is bound by an order made under section 239(1) against a person if:
(a) the
loss or damage suffered, or likely to be suffered, by the non-party consumer
in relation to the contravening conduct, or the declared term, to which the
order relates has been redressed, prevented or reduced in accordance with the
order; and
(b) the
non-party consumer has accepted the redress, prevention or reduction.
(2) Any other order
made under section 239(1) that relates to that loss or damage has no effect in
relation to the non-party consumer.
(3) Despite any other
provision of:
(a) this
Schedule; or
(b) any
other law of the Commonwealth, or a State or a Territory;
no claim, action or
demand may be made or taken against the person by the non-party consumer in
relation to that loss or damage.
(1) An application may
be made under section 237(1) or 239(1) even if an enforcement proceeding in
relation to the conduct, or the term of a contract, referred to in that
subsection has not been instituted.
(2) The regulator must
not make an application under section 237(1)(b) on behalf of one or more
persons unless those persons have consented in writing to the making of the
application.
243 . Kinds of orders that may be made
Without limiting
section 237(1), 238(1) or 239(1), the orders that a court may make under any
of those sections against a person (the respondent ) include all or any of the
following:
(a) an
order declaring the whole or any part of a contract made between the
respondent and a person (the injured person ) who suffered, or is likely to
suffer, the loss or damage referred to in that section, or of a collateral
arrangement relating to such a contract:
(i)
to be void; and
(ii)
if the court thinks fit — to have been void ab
initio or void at all times on and after such date as is specified in the
order (which may be a date that is before the date on which the order is
made);
(b) an
order:
(i)
varying such a contract or arrangement in such manner as
is specified in the order; and
(ii)
if the court thinks fit — declaring the contract or
arrangement to have had effect as so varied on and after such date as is
specified in the order (which may be a date that is before the date on which
the order is made);
(c) an
order refusing to enforce any or all of the provisions of such a contract or
arrangement;
(d) an
order directing the respondent to refund money or return property to the
injured person;
(e)
except if the order is to be made under section 239(1) — an order
directing the respondent to pay the injured person the amount of the loss or
damage;
(f) an
order directing the respondent, at his or her own expense, to repair, or
provide parts for, goods that had been supplied by the respondent to the
injured person;
(g) an
order directing the respondent, at his or her own expense, to supply specified
services to the injured person;
(h) an
order, in relation to an instrument creating or transferring an interest in
land, directing the respondent to execute an instrument that:
(i)
varies, or has the effect of varying, the first mentioned
instrument; or
(ii)
terminates or otherwise affects, or has the effect of
terminating or otherwise affecting, the operation or effect of the first
mentioned instrument.
244 . Power of a court to make orders
A court may make an
order under Subdivision A or B of this Division whether or not the court:
(a)
grants an injunction under Division 2 of this Part; or
(b)
makes an order under section 236, 246, 247 or 248.
245 . Interaction with other provisions
Subdivisions A and B
of this Division do not limit the generality of Division 2 of this Part.
(1) A court may, on
application of the regulator, make one or more of the orders mentioned in
subsection (2) in relation to a person who has engaged in conduct that:
(a)
contravenes a provision of Chapter 2, 3 or 4; or
(b)
constitutes an involvement in a contravention of such a provision.
(2) The court may make
the following orders in relation to the person who has engaged in the conduct:
(a) an
order directing the person to perform a service that is specified in the
order, and that relates to the conduct, for the benefit of the community or a
section of the community;
(aa) an
order requiring the person, at the person’s expense, to engage:
(i)
another person specified in the order; or
(ii)
another person in a class of persons specified in the
order;
to perform a service
that is specified in the order and that relates to the conduct, for the
benefit of the community or a section of the community;
(b) an
order for the purpose of ensuring that the person does not engage in the
conduct, similar conduct, or related conduct, during the period of the order
(which must not be longer than 3 years) including:
(i)
an order directing the person to establish a compliance
program for employees or other persons involved in the person’s
business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to such conduct; and
(ii)
an order directing the person to establish an education
and training program for employees or other persons involved in the
person’s business, being a program designed to ensure their awareness of
the responsibilities and obligations in relation to such conduct; and
(iii)
an order directing the person to revise the internal
operations of the person’s business which led to the person engaging in
such conduct;
(c) an
order requiring the person to disclose, in the way and to the persons
specified in the order, such information as is so specified, being information
that the person has possession of or access to;
(d) an
order requiring the person to publish, at the person’s expense and in
the way specified in the order, an advertisement in the terms specified in, or
determined in accordance with, the order.
Note: The following
are examples of orders that the court may make under subsection (2)(a):
(a) an
order requiring a person who has made false representations to make available
a training video which explains advertising obligations under this Schedule;
(b) an
order requiring a person who has engaged in misleading or deceptive conduct in
relation to a product to carry out a community awareness program to address
the needs of consumers when purchasing the product.
(2A) An order under
subsection (2)(aa) is not enforceable against a person mentioned in
subsections (2)(aa)(i) and (ii).
(3) This section does
not limit a court’s powers under any other provision of this Schedule.
247 . Adverse publicity orders
(1) A court may, on
application of the regulator, make an adverse publicity order in relation to a
person who:
(a) has
contravened a provision of Part 2-2 or Chapter 3; or
(b) has
committed an offence against Chapter 4.
(2) An adverse
publicity order in relation to a person is an order that requires the person:
(a) to
disclose, in the way and to the persons specified in the order, such
information as is so specified, being information that the person has
possession of or access to; and
(b) to
publish, at the person’s expense and in the way specified in the order,
an advertisement in the terms specified in, or determined in accordance with,
the order.
(3) This section does
not limit a court’s powers under any other provision of this Schedule.
248 . Order disqualifying a person from managing
corporations
(1) A court may, on
application of the regulator, make an order disqualifying a person from
managing corporations for a period that the court considers appropriate if:
(a) the
court is satisfied that the person has contravened, has attempted to
contravene or has been involved in a contravention of any of the following
provisions:
(i)
a provision of Part 2-2 (which is about unconscionable
conduct);
(ii)
a provision of Part 3-1 (which is about unfair
practices);
(iii)
a provision (other than section 85) of Division 2 of Part
3-2 (which is about unsolicited consumer agreements);
(iv)
section 106(1), (2), (3) or (5), 107(1) or (2), 118(1),
(2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1)
or 132(1) (which are about safety of consumer goods and product related
services);
(v)
section 136(1), (2) or (3) or 137(1) or (2) (which are
about information standards);
(vi)
a provision of Chapter 4 (which is about offences); and
(b) the
court is satisfied that the disqualification is justified.
Note: Section 206EA of
the Corporations Act 2001 provides that a person is disqualified from
managing corporations if a court order is in force under this section. That
Act contains various consequences for persons so disqualified.
(2) In determining
under subsection (1) whether the disqualification is justified, the court may
have regard to:
(a) the
person’s conduct in relation to the management, business or property of
any corporation; and
(b) any
other matters that the court considers appropriate.
(3) If the court makes
an order under subsection (1), the regulator must:
(a)
notify ASIC; and
(b) give
ASIC a copy of any such order.
Note: ASIC must keep a
register of persons who have been disqualified from managing corporations: see
section 1274AA of the Corporations Act 2001 .
(4) For the purposes
of this Schedule (other than this section or section 249), an order under this
section is not a penalty.
249 . Privilege against exposure to penalty or
forfeiture — disqualification from managing corporations
(1) In a civil or
criminal proceeding under, or arising out of, this Schedule, a person is not
entitled to refuse or fail to comply with a requirement:
(a) to
answer a question or give information; or
(b) to
produce a document or any other thing; or
(c) to
do any other act;
on the ground that the
answer or information, production of the document or other thing, or doing
that other act, as the case may be, might tend to expose the person to a
penalty (including forfeiture) by way of an order under section 248.
(2) Subsection (1)
applies whether or not the person is a defendant in the proceeding or in any
other proceeding.
(3) A person is not
entitled to refuse or fail to comply with a requirement under this Schedule:
(a) to
answer a question or give information; or
(b) to
produce a document or any other thing; or
(c) to
do any other act;
on the ground that the
answer or information, production of the document or other thing, or doing
that other act, as the case may be, might tend to expose the person to a
penalty (including forfeiture) by way of an order under section 248.
250 . Declarations relating to consumer contracts
and small business contracts
(1) The Court may
declare that a term of a consumer contract is an unfair term, on application
by:
(a) a
party to the contract; or
(b) the
regulator.
(2) The Court may
declare that a term of a small business contract is an unfair term, on
application by:
(a) a
party to the contract, if the party was a business of the kind referred to in
paragraph 23(4)(b) at the time the contract was entered into; or
(b) the
regulator.
(3) Subsections (1)
and (2) do not apply unless the contract is a standard form contract.
(4) Subsections (1)
and (2) do not apply if Part 2-3 does not apply to the contract.
(5) Subsections (1)
and (2) do not limit any other power of the court to make declarations.
251 . Publication of advertisement in the ordinary
course of business
(1) This section
applies to a proceeding under this Part in relation to a contravention of a
provision of Part 2-1 or 2-2 or Chapter 3 if the contravention was committed
by the publication of an advertisement.
(2) In the proceeding,
it is a defence if the defendant proves that:
(a) the
defendant is a person whose business it is to publish or arrange for the
publication of advertisements; and
(b) the
defendant received the advertisement for publication in the ordinary course of
business; and
(c) the
defendant did not know, and had no reason to suspect, that its publication
would amount to a contravention of such a provision.
252 . Supplying consumer goods for the purpose of
re-supply
(1) This section
applies to a proceeding under this Part in relation to a contravention of a
provision of Part 2-1 or 2-2 or Chapter 3 committed by:
(a) the
supplying of consumer goods that did not comply with a safety standard for
such goods; or
(b) the
supplying of consumer goods by a supplier who did not comply with an
information standard for such goods.
(2) In the proceeding,
it is a defence if the defendant proves that:
(a) the
consumer goods were acquired by the defendant for the purpose of re-supply;
and
(b) the
consumer goods were so acquired from a person who carried on in Australia a
business of supplying such goods otherwise than as the agent of a person
outside Australia; and
(c)
either:
(i)
the defendant did not know, and could not with reasonable
diligence have ascertained, that the consumer goods did not comply with that
safety standard, or that the defendant had not complied with that information
standard, as the case may be; or
(ii)
the defendant relied in good faith on a representation by
the person from whom the defendant acquired the goods that there was no safety
standard or information standard, as the case may be, for such consumer goods.
(3) A defendant is not
entitled to rely on the defence provided by subsection (2) unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice identifying the person from whom the defendant acquired the
consumer goods.
253 . Supplying product related services for the
purpose of re-supply
(1) This section
applies to a proceeding under this Part in relation to a contravention of a
provision of Part 2-1 or 2-2 or Chapter 3 committed by:
(a) the
supplying of product related services that did not comply with a safety
standard for such services; or
(b) the
supplying of product related services by a supplier who did not comply with an
information standard for such services.
(2) In the proceeding,
it is a defence if the defendant proves that:
(a) the
product related services were acquired by the defendant for the purpose of
re-supply; and
(b) the
product related services were so acquired from a person who carried on in
Australia a business of supplying such services otherwise than as the agent of
a person outside Australia; and
(c)
either:
(i)
the defendant did not know, and could not with reasonable
diligence have ascertained, that the product related services did not comply
with that safety standard, or that the defendant had not complied with that
information standard, as the case may be; or
(ii)
the defendant relied in good faith on a representation by
the person from whom the defendant acquired the goods that there was no safety
standard or information standard, as the case may be, for such product related
services.
(3) A defendant is not
entitled to rely on the defence provided by subsection (2) unless:
(a) the
court gives leave; or
(b) the
defendant has, not later than 7 days before the day on which the hearing of
the proceeding commences, served on the person who instituted the proceeding a
written notice identifying the person from whom the defendant acquired the
product related services.
Part 5-3 — Country of origin representations
This Part provides
that certain country of origin representations made about goods do not
contravene:
(a)
section 18 (which deals with misleading or deceptive conduct); or
(b)
section 29(1)(a) or (k) or 151(1)(a) or (k) (which deal with false or
misleading representations).
255 . Country of origin representations do not
contravene certain provisions
(1) A person does not
contravene section 18, 29(1)(a) or (k) or 151(1)(a) or (k) only by making a
representation of a kind referred to in an item in the first column of this
table, if the requirements of the corresponding item in the second column are
met.
Country of origin representations | ||
---|---|---|
Item |
Representation |
Requirements to be met |
1 |
A representation that goods were grown in a particular country |
(a) each significant ingredient or significant
component of the goods was grown in that country; and (b) all, or virtually all, processes involved in
the production or manufacture of the goods happened in that country. |
2 |
A representation that goods are the produce of a particular country |
(a) the country was the country of origin of each
significant ingredient or significant component of the goods; and (b) all, or virtually all, processes involved in
the production or manufacture of the goods happened in that country. |
3 |
A representation that goods were made or manufactured in, or otherwise
originate in, a particular country |
(a) the goods were last substantially transformed
in that country; and (b) the representation is not a representation to
which item 1 or 2 of this table applies. |
4 |
A representation in the form of a mark specified in an information standard
relating to country of origin labelling of goods |
the requirements under the information standard relating to the use of that
mark. |
(2) Goods were
substantially transformed in a country if:
(a) the
goods met, in relation to that country, the requirements of item 1 or 2 in the
second column of the table in subsection (1); or
(b) as a
result of one or more processes undertaken in that country, the goods are
fundamentally different in identity, nature or essential character from all of
their ingredients or components that were imported into that country; or
(c) the
goods underwent in that country one or more processes prescribed by the
regulations.
(3) Without limiting
subsection (2), the regulations:
(a) may
prescribe (in relation to particular classes of goods or otherwise) processes
or combinations of processes that, for the purposes of that subsection, do not
have the result described in subsection (2)(b); and
(b) may
include examples (in relation to particular classes of goods or otherwise) of
processes or combinations of processes that, for the purposes of that
subsection, have the result described in subsection (2)(b).
(5) Item 2 of the
table in subsection (1) applies to a representation that goods are the produce
of a particular country whether the representation uses the words
“product of”, “produce of” or any other grammatical
variation of the word “produce”.
(7) Goods, or
ingredients or components of goods, are grown in a country if they:
(a) are
materially increased in size or materially altered in substance in that
country by natural development; or
(b)
germinated or otherwise arose in, or issued in, that country; or
(c) are
harvested, extracted or otherwise derived from an organism that has been
materially increased in size, or materially altered in substance, in that
country by natural development.
(8) For the purposes
of item 1 of the table in subsection (1) in relation to particular goods,
packaging materials are not treated as ingredients or components of the goods.
(9) For the purposes
of item 1 of the table in subsection (1) in relation to an ingredient or
component, water added to the ingredient or component is treated as having the
same origin as the ingredient or component, regardless of its actual origin
if:
(a) the
ingredient or component has been dried or concentrated by the evaporation of
water; and
(b) the
added water returns the water content of the ingredient or component to no
more than its natural level.
258 . Proceedings relating to false, misleading or
deceptive conduct or representations
If:
(a)
proceedings are brought against a person in respect of section 18, 29(1)(a) or
(k) or 151(1)(a) or (k); and
(b) the
person seeks to rely on a provision of this Part, or of a regulation made for
the purposes of a provision of this Part, in the proceedings;
the person bears an
evidential burden in relation to the matters set out in the provision on which
the person seeks to rely.
Part 5-4 — Remedies relating to guarantees
Division 1 — Action against suppliers
Subdivision A — Action against suppliers of goods
259 . Action against suppliers of goods
(1) A consumer may
take action under this section if:
(a) a
person (the supplier ) supplies, in trade or commerce, goods to the consumer;
and
(b) a
guarantee that applies to the supply under Subdivision A of Division 1 of Part
3-2 (other than sections 58 and 59(1)) is not complied with.
(2) If the failure to
comply with the guarantee can be remedied and is not a major failure:
(a) the
consumer may require the supplier to remedy the failure within a reasonable
time; or
(b) if
such a requirement is made of the supplier but the supplier refuses or fails
to comply with the requirement, or fails to comply with the requirement within
a reasonable time—the consumer may:
(i)
otherwise have the failure remedied and, by action
against the supplier, recover all reasonable costs incurred by the consumer in
having the failure so remedied; or
(ii)
subject to section 262, notify the supplier that the
consumer rejects the goods and of the ground or grounds for the rejection.
(3) If the failure to
comply with the guarantee cannot be remedied or is a major failure, the
consumer may:
(a)
subject to section 262, notify the supplier that the consumer rejects the
goods and of the ground or grounds for the rejection; or
(b) by
action against the supplier, recover compensation for any reduction in the
value of the goods below the price paid or payable by the consumer for the
goods.
(4) The consumer may,
by action against the supplier, recover damages for any loss or damage
suffered by the consumer because of the failure to comply with the guarantee
if it was reasonably foreseeable that the consumer would suffer such loss or
damage as a result of such a failure.
(5) Subsection (4)
does not apply if the failure to comply with the guarantee occurred only
because of a cause independent of human control that occurred after the goods
left the control of the supplier.
(6) To avoid doubt,
subsection (4) applies in addition to subsections (2) and (3).
(7) The consumer may
take action under this section whether or not the goods are in their original
packaging.
260 . When a failure to comply with a guarantee is
a major failure
(1) A failure to
comply with a guarantee referred to in section 259(1)(b) that applies to a
supply of goods is a major failure if:
(a) the
goods would not have been acquired by a reasonable consumer fully acquainted
with the nature and extent of the failure; or
(b) the
goods depart in one or more significant respects:
(i)
if they were supplied by description — from that
description; or
(ii)
if they were supplied by reference to a sample or
demonstration model — from that sample or demonstration model; or
(c) the
goods are substantially unfit for a purpose for which goods of the same kind
are commonly supplied and they cannot, easily and within a reasonable time, be
remedied to make them fit for such a purpose; or
(d) the
goods are unfit for a disclosed purpose that was made known to:
(i)
the supplier of the goods; or
(ii)
a person by whom any prior negotiations or arrangements
in relation to the acquisition of the goods were conducted or made;
and they cannot,
easily and within a reasonable time, be remedied to make them fit for such a
purpose; or
(e) the
goods are not of acceptable quality because they are unsafe.
(2) A failure to
comply with a guarantee referred to in section 259(1)(b) that applies to a
supply of goods is also a major failure if:
(a) the
failure is one of 2 or more failures to comply with a guarantee referred to in
section 259(1)(b) that apply to the supply; and
(b) the
goods would not have been acquired by a reasonable consumer fully acquainted
with the nature and extent of those failures, taken as a whole.
Note: The multiple
failures do not need to relate to the same guarantee.
(3) Subsection (2)
applies regardless of whether the consumer has taken action under section 259
in relation to any of the failures.
261 . How suppliers may remedy a failure to comply
with a guarantee
If, under section
259(2)(a), a consumer requires a supplier of goods to remedy a failure to
comply with a guarantee referred to in section 259(1)(b), the supplier may
comply with the requirement:
(a) if
the failure relates to title — by curing any defect in title; or
(b) if
the failure does not relate to title — by repairing the goods; or
(c) by
replacing the goods with goods of an identical type; or
(d) by
refunding:
(i)
any money paid by the consumer for the goods; and
(ii)
an amount that is equal to the value of any other
consideration provided by the consumer for the goods.
262 . When consumers are not entitled to reject
goods
(1) A consumer is not
entitled, under section 259, to notify a supplier of goods that the consumer
rejects the goods if:
(a) the
rejection period for the goods has ended; or
(b) the
goods have been lost, destroyed or disposed of by the consumer; or
(c) the
goods were damaged after being delivered to the consumer for reasons not
related to their state or condition at the time of supply; or
(d) the
goods have been attached to, or incorporated in, any real or personal property
and they cannot be detached or isolated without damaging them.
(2) The rejection
period for goods is the period from the time of the supply of the goods to the
consumer within which it would be reasonable to expect the relevant failure to
comply with a guarantee referred to in section 259(1)(b) to become apparent
having regard to:
(a) the
type of goods; and
(b) the
use to which a consumer is likely to put them; and
(c) the
length of time for which it is reasonable for them to be used; and
(d) the
amount of use to which it is reasonable for them to be put before such a
failure becomes apparent.
263 . Consequences of rejecting goods
(1) This section
applies if, under section 259, a consumer notifies a supplier of goods that
the consumer rejects the goods.
(2) The consumer must
return the goods to the supplier unless:
(a) the
goods have already been returned to, or retrieved by, the supplier; or
(b) the
goods cannot be returned, removed or transported without significant cost to
the consumer because of:
(i)
the nature of the failure to comply with the guarantee to
which the rejection relates; or
(ii)
the size or height, or method of attachment, of the
goods.
(3) If subsection
(2)(b) applies, the supplier must, within a reasonable time, collect the goods
at the supplier’s expense.
(4) The supplier must,
in accordance with an election made by the consumer:
(a)
refund:
(i)
any money paid by the consumer for the goods; and
(ii)
an amount that is equal to the value of any other
consideration provided by the consumer for the goods; or
(b)
replace the rejected goods with goods of the same type, and of similar value,
if such goods are reasonably available to the supplier.
(5) The supplier
cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods
from the supplier.
(6) If the property in
the rejected goods had passed to the consumer before the rejection was
notified, the property in those goods revests in the supplier on the
notification of the rejection.
If the goods are
replaced under section 261(c) or 263(4)(b):
(a) the
replacement goods are taken, for the purposes of Division 1 of Part 3-2 and
this Part, to be supplied by the supplier; and
(b) the
provisions of Division 1 of Part 3-2 and this Part apply in relation to the
replacement goods.
265 . Termination of contracts for the supply of
services that are connected with rejected goods
(1) If:
(a)
under section 259, a consumer notifies a supplier of goods that the consumer
rejects the goods; and
(b) the
supplier is required under section 263(4)(a) to give the consumer a refund;
and
(c) a
person supplies, in trade or commerce, services to the consumer that are
connected with the rejected goods;
the consumer may
terminate the contract for the supply of the services.
(2) The termination
takes effect:
(a) at
the time the termination is made known to the supplier of the services
(whether by words or by conduct indicating the consumer’s intention to
terminate the contract); or
(b) if
it is not reasonably practicable to communicate with the supplier of the
services — at the time the consumer indicates, by means which are
reasonable in the circumstances, his or her intention to terminate the
contract.
(3) The consumer is
entitled to recover, by action against the supplier of the services, a refund
of:
(a) any
money paid by the consumer for the services; and
(b) an
amount that is equal to the value of any other consideration provided by the
consumer for the services;
to the extent that the
consumer has not already consumed the services at the time the termination
takes effect.
266 . Rights of gift recipients
If a consumer acquires
goods from a supplier and gives them to another person as a gift, the other
person may, subject to any defence which would be available to the supplier
against the consumer:
(a)
exercise any rights or remedies under this Subdivision which would be
available to the other person if he or she had acquired the goods from the
supplier; and
(b) any
reference in this Subdivision to a consumer includes a reference to the other
person accordingly.
Subdivision B — Action against suppliers of services
267 . Action against suppliers of services
(1) A consumer may
take action under this section if:
(a) a
person (the supplier ) supplies, in trade or commerce, services to the
consumer; and
(b) a
guarantee that applies to the supply under Subdivision B of Division 1 of Part
3-2 is not complied with; and
(c)
unless the guarantee is the guarantee under section 60 — the failure to
comply with the guarantee did not occur only because of:
(i)
an act, default or omission of, or a representation made
by, any person other than the supplier, or an agent or employee of the
supplier; or
(ii)
a cause independent of human control that occurred after
the services were supplied.
(2) If the failure to
comply with the guarantee can be remedied and is not a major failure:
(a) the
consumer may require the supplier to remedy the failure within a reasonable
time; or
(b) if
such a requirement is made of the supplier but the supplier refuses or fails
to comply with the requirement, or fails to comply with the requirement within
a reasonable time — the consumer may:
(i)
otherwise have the failure remedied and, by action
against the supplier, recover all reasonable costs incurred by the consumer in
having the failure so remedied; or
(ii)
terminate the contract for the supply of the services.
(3) If the failure to
comply with the guarantee cannot be remedied or is a major failure, the
consumer may:
(a)
terminate the contract for the supply of the services; or
(b) by
action against the supplier, recover compensation for any reduction in the
value of the services below the price paid or payable by the consumer for the
services.
(4) The consumer may,
by action against the supplier, recover damages for any loss or damage
suffered by the consumer because of the failure to comply with the guarantee
if it was reasonably foreseeable that the consumer would suffer such loss or
damage as a result of such a failure.
(5) To avoid doubt,
subsection (4) applies in addition to subsections (2) and (3).
268 . When a failure to comply with a guarantee is
a major failure
(1) A failure to
comply with a guarantee referred to in section 267(1)(b) that applies to a
supply of services is a major failure if:
(a) the
services would not have been acquired by a reasonable consumer fully
acquainted with the nature and extent of the failure; or
(b) the
services are substantially unfit for a purpose for which services of the same
kind are commonly supplied and they cannot, easily and within a reasonable
time, be remedied to make them fit for such a purpose; or
(c) both
of the following apply:
(i)
the services, and any product resulting from the
services, are unfit for a particular purpose for which the services were
acquired by the consumer that was made known to the supplier of the services;
(ii)
the services, and any of those products, cannot, easily
and within a reasonable time, be remedied to make them fit for such a purpose;
or
(d) both
of the following apply:
(i)
the services, and any product resulting from the
services, are not of such a nature, or quality, state or condition, that they
might reasonably be expected to achieve a result desired by the consumer that
was made known to the supplier;
(ii)
the services, and any of those products, cannot, easily
and within a reasonable time, be remedied to achieve such a result; or
(e) the
supply of the services creates an unsafe situation.
(2) A failure to
comply with a guarantee referred to in section 267(1)(b) that applies to a
supply of services is also a major failure if:
(a) the
failure is one of 2 or more failures to comply with a guarantee referred to in
section 267(1)(b) that apply to the supply; and
(b) the
services would not have been acquired by a reasonable consumer fully
acquainted with the nature and extent of those failures, taken as a whole.
Note: The multiple
failures do not need to relate to the same guarantee.
(3) Subsection (2)
applies regardless of whether the consumer has taken action under section 267
in relation to any of the failures.
269 . Termination of contracts for the supply of
services
(1) This section
applies if, under section 267, a consumer terminates a contract for the supply
of services.
(2) The termination
takes effect:
(a) at
the time the termination is made known to the supplier of the services
(whether by words or by conduct indicating the consumer’s intention to
terminate the contract); or
(b) if
it is not reasonably practicable to communicate with the supplier of the
services — at the time the consumer indicates, by means which are
reasonable in the circumstances, his or her intention to terminate the
contract.
(3) The consumer is
entitled to recover, by action against the supplier of the services, a refund
of:
(a) any
money paid by the consumer for the services; and
(b) an
amount that is equal to the value of any other consideration provided by the
consumer for the services;
to the extent that the
consumer has not already consumed the services at the time the termination
takes effect.
270 . Termination of contracts for the supply of
goods that are connected with terminated services
(1) If:
(a)
under section 267, a consumer terminates a contract for the supply of
services; and
(b) a
person (the supplier ) has supplied, in trade or commerce, goods to the
consumer that are connected with the services;
then:
(c) the
consumer is taken to have rejected the goods at the time the termination of
the contract takes effect; and
(d) the
consumer must return the goods to the supplier of the goods unless:
(i)
the goods have already been returned to, or retrieved by,
the supplier; or
(ii)
the goods cannot be returned, removed or transported
without significant cost to the consumer because of the nature of the failure
to comply with the guarantee to which the rejection relates, or because of the
size or height, or method of attachment, of the goods; and
(e) the
supplier must refund:
(i)
any money paid by the consumer for the goods; and
(ii)
an amount that is equal to the value of any other
consideration provided by the consumer for the goods.
(2) If subsection
(1)(d)(ii) applies, the supplier must collect the goods at the
supplier’s expense.
Division 2 — Action for damages against manufacturers of goods
271 . Action for damages against manufacturers of
goods
(1) If:
(a) the
guarantee under section 54 applies to a supply of goods to a consumer; and
(b) the
guarantee is not complied with;
an affected person in
relation to the goods may, by action against the manufacturer of the goods,
recover damages from the manufacturer.
(2) Subsection (1)
does not apply if the guarantee under section 54 is not complied with only
because of:
(a) an
act, default or omission of, or any representation made by, any person other
than the manufacturer or an employee or agent of the manufacturer; or
(b) a
cause independent of human control that occurred after the goods left the
control of the manufacturer; or
(c) the
fact that the price charged by the supplier was higher than the
manufacturer’s recommended retail price, or the average retail price,
for the goods.
(3) If:
(a) a
person supplies, in trade or commerce, goods by description to a consumer; and
(b) the
description was applied to the goods by or on behalf of the manufacturer of
the goods, or with express or implied consent of the manufacturer; and
(c) the
guarantee under section 56 applies to the supply and it is not complied with;
an affected person in
relation to the goods may, by action against the manufacturer of the goods,
recover damages from the manufacturer.
(4) Subsection (3)
does not apply if the guarantee under section 56 is not complied with only
because of:
(a) an
act, default or omission of any person other than the manufacturer or an
employee or agent of the manufacturer; or
(b) a
cause independent of human control that occurred after the goods left the
control of the manufacturer.
(5) If:
(a) the
guarantee under section 58 or 59(1) applies to a supply of goods to a
consumer; and
(b) the
guarantee is not complied with;
an affected person in
relation to the goods may, by action against the manufacturer of the goods,
recover damages from the manufacturer.
(6) If an affected
person in relation to goods has, in accordance with an express warranty given
or made by the manufacturer of the goods, required the manufacturer to remedy
a failure to comply with a guarantee referred to in subsection (1), (3) or
(5):
(a) by
repairing the goods; or
(b) by
replacing the goods with goods of an identical type;
then, despite that
subsection, the affected person is not entitled to commence an action under
that subsection to recover damages of a kind referred to in section 272(1)(a)
unless the manufacturer has refused or failed to remedy the failure, or has
failed to remedy the failure within a reasonable time.
(7) The affected
person in relation to the goods may commence an action under this section
whether or not the goods are in their original packaging.
272 . Damages that may be recovered by action
against manufacturers of goods
(1) In an action for
damages under this Division, an affected person in relation to goods is
entitled to recover damages for:
(a) any
reduction in the value of the goods, resulting from the failure to comply with
the guarantee to which the action relates, below whichever of the following
prices is lower:
(i)
the price paid or payable by the consumer for the goods;
(ii)
the average retail price of the goods at the time of
supply; and
(b) any
loss or damage suffered by the affected person because of the failure to
comply with the guarantee to which the action relates if it was reasonably
foreseeable that the affected person would suffer such loss or damage as a
result of such a failure.
(2) Without limiting
subsection (1)(b), the cost of inspecting and returning the goods to the
manufacturer is taken to be a reasonably foreseeable loss suffered by the
affected person as a result of the failure to comply with the guarantee.
(3) Subsection (1)(b)
does not apply to loss or damage suffered through a reduction in the value of
the goods.
273 . Time limit for actions against manufacturers
of goods
An affected person may
commence an action for damages under this Division at any time within 3 years
after the day on which the affected person first became aware, or ought
reasonably to have become aware, that the guarantee to which the action
relates has not been complied with.
274 . Indemnification of suppliers by
manufacturers
(1) A manufacturer of
goods is liable to indemnify a person (the supplier ) who supplies the goods
to a consumer if:
(a) the
supplier is liable to pay damages under section 259(4) to the consumer for
loss or damage suffered by the consumer; and
(b) the
manufacturer is or would be liable under section 271 to pay damages to the
consumer for the same loss or damage.
(2) Without limiting
subsection (1), a manufacturer of goods is liable to indemnify a person (the
supplier ) who supplies the goods to a consumer if:
(a) the
supplier incurs costs because the supplier is liable under this Part for a
failure to comply with a guarantee that applies to the supply under
Subdivision A of Division 1 of Part 3-2; and
(b) the
failure is:
(i)
a failure to comply with the guarantee under section 54;
or
(ii)
a failure to comply with the guarantee under section 55
in relation to a disclosed purpose that the consumer made known to the
manufacturer either directly or through the supplier or the person referred to
in section 55(2)(a)(ii); or
(iii)
a failure to comply with the guarantee under section 56
in relation to a description that was applied to the goods by or on behalf of
the manufacturer of the goods, or with the express or implied consent of the
manufacturer.
(3) The supplier may,
with respect to the manufacturer’s liability to indemnify the supplier,
commence an action against the manufacturer in a court of competent
jurisdiction for such legal or equitable relief as the supplier could have
obtained if that liability had arisen under a contract of indemnity made
between them.
(4) The supplier may
commence the action at any time within 3 years after the earliest of the
following days:
(a) the
day, or the first day, as the case may be, on which the supplier made a
payment with respect to, or otherwise discharged in whole or in part, the
liability of the supplier to the consumer;
(b) the
day on which a proceeding was commenced by the consumer against the supplier
with respect to that liability or, if more than one such proceeding was
commenced, the day on which the first such proceeding was commenced.
275 . Limitation of liability etc.
If:
(a)
there is a failure to comply with a guarantee that applies to a supply of
services under Subdivision B of Division 1 of Part 3-2; and
(b) the
law of a State or a Territory is the proper law of the contract;
that law applies to
limit or preclude liability for the failure, and recovery of that liability
(if any), in the same way as it applies to limit or preclude liability, and
recovery of any liability, for a breach of a term of the contract for the
supply of the services.
276 . This Part not to be excluded etc. by
contract
(1) A term of a
contract (including a term that is not set out in the contract but is
incorporated in the contract by another term of the contract) is void to the
extent that the term purports to exclude, restrict or modify, or has the
effect of excluding, restricting or modifying:
(a) the
application of all or any of the provisions of this Part; or
(b) the
exercise of a right a conferred by such a provision; or
(c) any
liability of a person in relation to a failure to comply with a guarantee that
applies under Division 1 of Part 3-2 to a supply of goods or services.
(2) A term of a
contract is not taken, for the purposes of this section, to exclude, restrict
or modify the application of a provision of this Part unless the term does so
expressly or is inconsistent with the provision.
(3) This section does
not apply to a term of a contract that is a term referred to in section
276A(4).
276A . Limitation in certain circumstances of
liability of manufacturer to seller
(1) Despite section
274, if goods are not of a kind ordinarily acquired for personal, domestic or
household use or consumption, the liability under that section of the
manufacturer of the goods to a person (the supplier ) who supplied the goods
to a consumer is limited to a liability to pay to the supplier an amount equal
to:
(a) the
cost of replacing the goods; or
(b) the
cost of obtaining equivalent goods; or
(c) the
cost of having the goods repaired;
whichever is the
lowest amount.
(2) Subsection (1)
does not apply in relation to particular goods if the supplier establishes
that it is not fair or reasonable for the liability of the manufacturer of the
goods to be limited as mentioned in subsection (1).
(3) In determining for
the purposes of subsection (2) whether or not it is fair or reasonable for the
liability of a manufacturer to a supplier in relation to goods to be limited
as mentioned in subsection (1), a court is to have regard to all the
circumstances of the case, and in particular to the following matters:
(a) the
availability of suitable alternative sources of supply of the goods;
(b) the
availability of equivalent goods;
(c)
whether the goods were manufactured, processed or adapted to the special order
of the supplier.
(4) This section is
subject to any term of a contract between the manufacturer and the supplier
imposing on the manufacturer a greater liability than the liability mentioned
in subsection (1).
277 . Representative actions by the regulator
(1) The regulator may,
by application, commence an action under this Part on behalf of one or more
persons identified in the application who are entitled under this Part to take
the action.
(2) The regulator may
only make the application if it has obtained the written consent of the
person, or each of the persons, on whose behalf the application is being made.
Part 5-5 — Liability of suppliers and credit providers
Division 1 — Linked credit contracts
278 . Liability of suppliers and linked credit
providers relating to linked credit contracts
(1) If a consumer who
is a party to a linked credit contract suffers loss or damage as a result of:
(a) a
misrepresentation relating to the credit provided under that linked credit
contract, or to a supply of goods or services (a related supply ) to which
that contract relates; or
(b) a
breach of the linked credit contract, or of a contract for a related supply;
or
(c) the
failure of consideration in relation to the linked credit contract, or to a
contract for a related supply; or
(d) a
failure to comply with a guarantee that applies, under section 54, 55, 56, 57,
60, 61 or 62, in relation to a related supply; or
(e) a
breach of a warranty that is implied in the linked credit contract by
section 12ED of the Australian Securities and Investments Commission Act 2001
;
the linked credit
provider who is a party to the contract, and the supplier of a related supply,
are jointly and severally liable to the consumer for the amount of the loss or
damage.
(2) A linked credit
contract is a contract that a consumer enters into with a linked credit
provider of a person (the supplier ) for the provision of credit in relation
to:
(a) the
supply by way of sale, lease, hire or hire-purchase of goods to the consumer
by the linked credit provider where the supplier supplies the goods, or causes
the goods to be supplied, to the linked credit provider; or
(b) the
supply by the supplier of goods or services, or goods and services, to the
consumer.
279 . Action by consumer to recover amount of loss
or damage
(1) If a linked credit
provider, and a supplier of the goods or services, are liable under section
278 to a consumer for an amount of loss or damage, the consumer may recover
the amount by action in a court of competent jurisdiction.
(2) The consumer must
bring the action against the linked credit provider and the supplier jointly.
(3) Subsection (2)
does not apply if:
(a) the
supplier has been dissolved or the winding up of the supplier has commenced;
or
(b) both
of the following apply:
(i)
in the opinion of the court in which the action is taken,
it is not reasonably likely that a judgment obtained against the supplier
would be satisfied;
(ii)
that court has, on the application of the consumer,
declared that that subsection does not apply in relation to the proceedings.
280 . Cases where a linked credit provider is not
liable
(1) In joint liability
proceedings, a linked credit provider is not liable to a consumer under
section 278 if the linked credit provider establishes that:
(a) the
credit provided by the credit provider to the consumer was the result of an
approach made to the credit provider by the consumer; and
(b) the
approach was not induced by the supplier of the goods or services to which the
linked credit contract relates.
(2) In joint liability
proceedings, a linked credit provider is not liable to a consumer under
section 278 if the proceedings relate to the supply by way of lease, hire or
hire-purchase of goods to the consumer by the linked credit provider, and the
credit provider establishes that:
(a)
after due inquiry before becoming a linked credit provider of the supplier of
the goods, the credit provider was satisfied that the reputation of the
supplier in respect of the supplier’s financial standing and business
conduct was good; and
(b)
after becoming a linked credit provider of the supplier, the credit provider
had not had cause to suspect that:
(i)
the consumer might be entitled to recover an amount of
loss or damage suffered as a result of a misrepresentation, breach, failure of
consideration, failure to comply with a guarantee, or breach of a warranty,
referred to in section 278(1); and
(ii)
the supplier might be unable to meet the supplier’s
liabilities as and when they fall due.
(3) In joint liability
proceedings, a linked credit provider is not liable to a consumer under
section 278 if the proceedings relate to a contract of sale in relation to
which a tied loan contract applies and the linked credit provider establishes
that:
(a)
after due inquiry before becoming a linked credit provider of the supplier of
goods to which the contract relates, the credit provider was satisfied that
the reputation of the supplier in respect of the supplier’s financial
standing and business conduct was good; and
(b)
after becoming a linked credit provider of the supplier, but before the tied
loan contract was entered into, the linked credit provider had not had cause
to suspect that:
(i)
the consumer might, if the tied loan contract was entered
into, be entitled to recover an amount of loss or damage suffered as a result
of a misrepresentation, breach, failure of consideration, failure to comply
with a guarantee, or breach of a warranty, referred to in section 278(1); and
(ii)
the supplier might be unable to meet the supplier’s
liabilities as and when they fall due.
(4) In joint liability
proceedings, a linked credit provider is not liable to a consumer under
section 278 if:
(a) the
proceedings relate to a contract of sale in relation to which a tied
continuing credit contract entered into by the linked credit provider applies;
and
(b) the
credit provider establishes the matter referred to in subsection (5), having
regard to:
(i)
the nature and volume of business carried on by the
credit provider; and
(ii)
such other matters as appear to be relevant in the
circumstances of the case.
(5) The matter for the
purposes of subsection (4) is that the linked credit provider, before first
becoming aware of:
(a) the
contract of sale referred to in paragraph (a) of that subsection; or
(b)
proposals for the making of such a contract;
had not had cause to
suspect that a person entering into such a contract with the supplier might be
entitled to claim damages against, or recover a sum of money from, the
supplier for a misrepresentation, breach, failure of consideration, failure to
comply with a guarantee, or a breach of a warranty, referred to in section
278(1).
(6) This section has
effect despite section 278(1).
281 . Amount of liability of linked credit
providers
The liability of a
linked credit provider to a consumer under section 278(1) in relation to a
contract referred to in section 278(1) is limited to an amount that does not
exceed the sum of:
(a) the
amount financed under the tied loan contract, tied continuing credit contract,
lease contract, contract of hire or contract of hire-purchase; and
(b) the
amount of interest (if any), or damages in the nature of interest, allowed or
awarded against the credit provider by the court in which the action in
relation to the liability is taken; and
(c) the
amount of costs (if any) awarded by that court against the credit provider or
supplier, or both.
282 . Counter-claims and offsets
(1) If proceedings in
relation to a linked credit contract are brought against a consumer who is
party to the contract by the linked credit provider who is a party to the
contract, the consumer is not entitled to:
(a) make
a counter-claim in relation to the credit provider’s liability under
section 278(1); or
(b)
exercise a right conferred by subsection (3) of this section in relation to
that liability;
unless the consumer
claims in the proceedings against the supplier in respect of the liability, by
third-party proceedings or otherwise.
(2) Subsection (1)
does not apply if:
(a) the
supplier has been dissolved or the winding up of the supplier has commenced;
or
(b) both
of the following apply:
(i)
in the opinion of the court in which the proceedings are
taken, it is not reasonably likely that a judgment obtained against the
supplier would be satisfied;
(ii)
that court has, on the application of the consumer,
declared that that subsection does not apply in relation to the proceedings.
(3) In any proceedings
in relation to a linked credit contract in which the linked credit provider
who is a party to the contract claims damages or an amount of money from a
consumer, the consumer may offset, in whole or in part, the consumer’s
liability against any liability of the credit provider under section 278(1).
283 . Enforcement of judgments etc.
(1) If, in joint
liability proceedings, judgment is given against a supplier and a linked
credit provider, the judgment must not be enforced against the credit provider
unless a written demand made on the supplier for satisfaction of the judgment
has remained unsatisfied for at least 30 days.
(2) If the judgment
can be enforced against the linked credit provider, it may only be enforced to
the extent of the lesser of the following amounts:
(a) the
amount calculated in accordance with section 281;
(b) so
much of the judgment debt as has not been satisfied by the supplier.
(3) If, in joint
liability proceedings, a right conferred by section 282(3) is established by a
consumer against a linked credit provider, the consumer must not receive the
benefit of the right unless:
(a)
judgment has been given against the supplier and credit provider; and
(b) a
written demand has been made on the supplier for satisfaction of the judgment;
and
(c) the
demand has remained unsatisfied for at least 30 days.
(4) If the consumer
can receive the benefit of a right conferred by section 282(3), the consumer
may only receive the benefit to the extent of the lesser of the following
amounts:
(a) the
amount calculated in accordance with section 281;
(b) so
much of the judgment debt as has not been satisfied by the supplier.
(5) Subsections (1)
and (3) do not apply if:
(a) the
supplier has been dissolved or the winding up of the supplier has commenced;
or
(b) both
of the following apply:
(i)
in the opinion of the court in which the proceedings are
taken, it is not reasonably likely that a judgment obtained against the
supplier would be satisfied;
(ii)
that court has, on the application of the consumer,
declared that those subsections do not apply in relation to the proceedings.
(6) If a judgment
given in joint liability proceedings is enforced against a linked credit
provider of a supplier, the credit provider is subrogated to the extent of the
enforced judgment to any rights that the consumer would have had but for the
judgment against the supplier or any other person.
284 . Award of interest to consumers
(1) If, in joint
liability proceedings, judgment is given against the following (the defendant
) for an amount of loss or damage:
(a) a
supplier and a linked credit provider;
(b) a
linked credit provider;
the court must, on the
application of the consumer who suffered the loss or damage, award interest to
the consumer against the defendant upon the whole or a part of the amount,
unless good cause is shown to the contrary.
(2) The interest must
be awarded from the time when the consumer became entitled to recover the
amount until the date on which the judgment is given, at the greater of the
following rates:
(a) if
the amount payable by the consumer to the linked credit provider for obtaining
credit in connection with the goods or services to which the proceedings
relate may be calculated at a percentage rate per annum — that rate or,
if more than one such rate may be calculated, the lower or lowest of those
rates;
(b) 8%,
or such other rate as is prescribed by the regulations.
(3) In determining
whether good cause is shown against the awarding of interest under subsection
(1), the court must take into account any payment made into court by the
supplier or the linked credit provider.
(4) This section
applies despite any other law.
285 . Liability of suppliers to linked credit
providers, and of linked credit providers to suppliers
(1) If a linked credit
provider and supplier are liable, under section 278, to a consumer who is a
party to a linked credit contract:
(a) if
the liability relates to a supply of goods or services to which the linked
credit contract relates — the supplier is liable to the credit provider
for the amount of loss suffered by the credit provider, unless the supplier
and credit provider otherwise agree; or
(b) if
the liability relates to the linked credit contract—the credit provider
is liable to the supplier for the amount of loss suffered by the supplier,
unless the supplier and credit provider otherwise agree.
(2) The amount for
which the supplier is liable under subsection (1)(a) of this section is an
amount not exceeding the sum of the following amounts:
(a) the
maximum amount of the linked credit provider’s liability under section
281;
(b)
unless the court otherwise determines, the amount of costs (if any) reasonably
incurred by the linked credit provider in defending the joint liability
proceedings.
286 . Joint liability proceedings and recovery
under section 135 of the National Credit Code
(1) If:
(a) a
consumer is seeking, in joint liability proceedings, to recover an amount
under section 279 in relation to a contract for the supply of goods or
services; and
(b) the
contract has been rescinded or discharged (whether under this Schedule or any
other law); and
(c) as a
result of the contract being rescinded or discharged, the consumer is entitled
under section 135 of the National Credit Code to terminate a linked credit
contract; and
(d) the
consumer terminates the linked credit contract under that section;
the following amounts
may be recovered in the joint liability proceedings (to the extent that they
have not been recovered under section 135 of the National Credit Code):
(e) any
amount that the consumer is entitled under section 135 of the National Credit
Code to recover from the credit provider under the linked credit contract;
(f) any
amount that the credit provider is entitled under section 135 of the National
Credit Code to recover from:
(i)
the consumer; or
(ii)
if the supplier under the contract for the supply of
goods or services is a party to the joint liability proceedings — the
supplier.
(2) An amount that is
recovered under subsection (1) ceases to be recoverable under section 135 of
the National Credit Code.
Division 2 — Non-linked credit contracts
287 . Liability of suppliers and credit providers
relating to non-linked credit contracts
(1) If a consumer who
is a party to a non-linked credit contract suffers loss or damage as a result
of a failure to comply with a guarantee that applies, under section 54, 55,
56, 57, 60, 61 or 62, in relation to a supply to which the contract relates,
the credit provider who is a party to the contract is not under any liability
to the consumer for the amount of the loss or damage.
(2) Subsection (1)
does not prevent the consumer from recovering that amount by action against
the supplier of the goods or services to which the contract relates.
(3) If a consumer who
is a party to a non-linked credit contract suffers loss or damage as a result
of a breach of a warranty that is implied in the contract by section 12ED of
the Australian Securities and Investments Commission Act 2001 , the supplier
of the goods or services to which the contract relates is not under any
liability to the consumer for the amount of the loss or damage.
(4) Subsection (3)
does not prevent the consumer from recovering that amount by action against
the credit provider who is a party to the contract.
(5) A non-linked
credit contract is a contract that a consumer enters into with a credit
provider for the provision of credit in relation to:
(a) the
supply by way of sale, lease, hire or hire-purchase of goods to the consumer
where:
(i)
a person (the supplier ) supplies the goods, or the
causes the goods to be supplied, to the credit provider; and
(ii)
the credit provider is not a linked credit provider of
the supplier; and
(iii)
prior negotiations or arrangements in relation to the
acquisition of the goods were conducted or made with the consumer by or on
behalf of the supplier; and
(iv)
the credit provider did not take physical possession of
the goods before they were delivered to the consumer; or
(b) the
supply of services to the consumer by a person in relation to whom the credit
provider is not a linked credit provider.
Chapter 6 —Application and transitional provisions
Part 1—Application and transitional provisions relating to the
Consumer Credit Legislation Amendment (Enhancements) Act 2012
288 . Application of amendments relating to lay-by
agreements
The amendments made by
items 1 to 8 and 10 to 15 of Schedule 7 to the Consumer Credit Legislation
Amendment (Enhancements) Act 2012 apply to lay-by agreements entered into on
or after the commencement of those items.
289 . Application of amendment relating to repairs
The amendment made by
item 9 of Schedule 7 to the Consumer Credit Legislation Amendment
(Enhancements) Act 2012 applies to notices to be given in relation to the
repair of goods accepted on or after the commencement of that item.
290 . Saving of regulations relating to repairs
Despite the amendment
made to subsection 103(1) of Schedule 2 to the Competition and Consumer Act
2010 by item 9 of Schedule 7 to the
Consumer Credit Legislation Amendment (Enhancements) Act 2012 , regulations
that:
(a) were
made for the purposes of that subsection; and
(b) were
in force immediately before the commencement of that item;
continue in force (and
may be dealt with) as if they were made for the purposes of that subsection as
amended by that item.
Part 1A—Application provision relating to the Treasury Legislation
Amendment (Small Business and Unfair Contract Terms) Act 2015
(1) The amendments
made by Schedule 1 to the Treasury Legislation Amendment (Small Business and
Unfair Contract Terms) Act 2015 apply in relation to a contract entered into
on or after the commencement of that Schedule.
(2) The amendments do
not apply to a contract entered into before the commencement of that Schedule.
However:
(a) if
the contract is renewed on or after that commencement—the amendments
apply to the contract as renewed, on and from the day (the renewal day ) on
which the renewal takes effect, in relation to conduct that occurs on or after
the renewal day; or
(b) if a
term of the contract is varied on or after that commencement and paragraph (a)
has not already applied in relation to the contract—the amendments apply
to the term as varied, on and from the day (the variation day ) on which the
variation takes effect, in relation to conduct that occurs on and after the
variation day.
(3) If paragraph
(2)(b) of this section applies to a term of a contract, subsection 23(2) and
section 27 apply to the contract.
(4) Despite paragraphs
(2)(a) and (b) and subsection (3) of this section, the amendments do not apply
to a contract, or a term of a contract, to the extent that the operation of
the amendments would result in an acquisition of property (within the meaning
of paragraph 51(xxxi) of the Constitution) from a person otherwise than on
just terms (within the meaning of that paragraph of the Constitution).
Part 2—Application and transitional provisions relating to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017
291 . Application of amendments relating to
confidentiality of notices
The amendment made by
Part 4 of Schedule 14 to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017
applies in relation to disclosures made on or after the commencement of that
Part that relate to notices given on or after the commencement of that Part.
292 . Application of amendments relating to
prohibition on supplies
The amendments made by
Part 6 of Schedule 14 to the
Competition and Consumer Amendment (Competition Policy Review) Act 2017 apply
in relation to unsolicited consumer agreements made on or after the
commencement of that Part.
Part 3—Application provision relating to the Treasury Laws Amendment
(2018 Measures No. 3) Act 2018
295 . Application of amendments
The amendments made by
Schedule 1 to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018 apply
in relation to acts or omissions that occur on or after the commencement of
that Schedule.
Part 4—Application provisions relating to the Treasury Laws Amendment
(Australian Consumer Law Review) Act 2018
296 . Application—listed public companies
The amendments made by
items 4 and 5 of Schedule 2 to the
Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 apply in
relation to acts or omissions on or after the day that Schedule commences.
297 . Application—unsolicited supplies
The amendments made by
Schedule 3 to the Treasury Laws Amendment (Australian Consumer Law Review)
Act 2018 apply in relation to acts or omissions on or after the day that
Schedule commences.
298 . Application—unsolicited consumer
agreements
The amendment made by
Schedule 4 to the Treasury Laws Amendment (Australian Consumer Law Review)
Act 2018 applies in relation to acts or omissions that relate to agreements
entered into on or after the day that Schedule commences.
299 . Application—single price
The amendments made by
Schedule 5 to the Treasury Laws Amendment (Australian Consumer Law Review)
Act 2018 apply in relation to acts or omissions on or after the day that is 12
months after the day that Schedule commences.
300 . Application—non-punitive orders
The amendments made by
Schedule 8 to the Treasury Laws Amendment (Australian Consumer Law Review)
Act 2018 apply in relation to orders relating to acts or omissions on or after
the day that Schedule commences.
301 . Application—guarantees relating to the
supply of services
The amendments made by
Schedule 9 to the Treasury Laws Amendment (Australian Consumer Law Review)
Act 2018 apply in relation to services supplied under a contract entered into
on or after the day that Schedule commences.
Part 5—Application and transitional provisions relating to the
Treasury Laws Amendment (Gift Cards) Act 2018
302 . Application of amendments relating to gift
cards
The amendments made by
Schedule 1 to the Treasury Laws Amendment (Gift Cards) Act 2018 apply to gift
cards supplied on or after 1 November 2019.
Part 6—Application and transitional provisions relating to the Treasury
Laws Amendment (2020 Measures No. 6) Act 2020
303 . Application of amendments relating to
multiple non major consumer guarantee failures
(1) The amendments
made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No.
6) Act 2020 apply in relation to goods supplied under a contract entered into
on or after the day that that Part commences.
(2) The amendments
made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No.
6) Act 2020 apply in relation to a services supplied under a contract entered
into on or after the day that that Part commences.
Defined terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined term Provision(s)
access information
75(1)
acquire 6
amend
17(1)
amending law
17(1)
amending provision 19C(1)
application law
17(1)
applied
regulation 15(2A)
assistant
67(1)
Australian Consumer Law 17(1)
Australian Consumer Law text 17(1)
Australian
Consumer Law (WA) 6, 17(1)
authorisation
88A
authorised person 63
business 6
code of practice
43
commencement day 19D
Commissioner
6
consumer 6, 7(1)
consumer
affairs authority 62(1)
Department
6
disallowance period 19B(1)
disallowance resolution 19B(1)
disposal
6
document 6
executive
officer 55(1)
first person
106(1)
goods 6
instrument
17(1)
interest 6
Intergovernmental
Agreement 17(1)
investigator
63
judicial member 83(5)
jurisdiction
17(1)
law 17(1)
liability 114(1), 115(1)
modifications
17(1)
motor vehicle 63
notice
period 19B(1)
other jurisdiction
27
parliamentary committee 19E(1)
participating jurisdiction 17(1), 27
person A
95(4), 99(2)
personal information
112(1)
person B 95(4)
President
83(5)
principal 111(1)
and (2)
provision 6
publish
62(1)
registration Act 88A
regulated
activity 88A
regulated person
88A, 112(1)
regulator 22
renewal day
38(2)
respondent 106(4)
re-supply 6
services
6, 8(1)
specified 117(5)
specified person
75(1)
State 17(1)
supplier
6
supply 6
Territory
17(1)
this jurisdiction
17(1)
trade or commerce 6
transitional
matter 117(2)
variation day
38(2)