2010 Trade Practices Act

8/9/2019 2010 Trade Practices Act

1/401

2008-2009-2010

The Parliament of theCommonwealth of Australia

HOUSE OF REPRESENTATIVES

As passed by both Houses

Trade Practices Amendment (Australian

Consumer Law) Bill (No. 2) 2010

No. , 2010

A Bill for an Act to amend the Trade Practices Act

1974and theAustralian Securities and Investments

Commission Act 2001, and for other purposes


2/401


3/401

i Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. , 2010

Contents1 Short title .................................. ..................................... .................... 1

2 Commencement .................................... ...................................... ....... 1

3 Schedule(s) ............................... .................................... ..................... 3

Schedule 1The Australian Consumer Law 4

Trade Practices Act 1974 4

Schedule 2Application of the Australian Consumer Law 263


Schedule 3Amendment of the Corporations legislation 338

Australian Securities and Investments Commission Act 2001 338

Corporations Act 2001 350

Schedule 4Enforcement of industry codes 352


Schedule 5Other amendments of the Trade Practices Act

1974 359

Schedule 6Amendment of other Acts to change references to

the Trade Practices Act 1974 375

Part 1Bulk amendments 375

Administrative Decisions (Judicial Review) Act 1977 375

Agricultural and Veterinary Chemicals Code Act 1994 375

Airports Act 1996 375

Air Services Act 1995 376

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 376

Australian Communications and Media Authority Act 2005 377

Australian Energy Market Act 2004 377

Australian Maritime Safety Authority Act 1990 377

Australian Postal Corporation Act 1989 377

Banking Act 1959 378

Broadcasting Services Act 1992 378

Crimes Act 1914 379

Customs Act 1901 379


4/401

Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. , 2010 ii

Do Not Call Register Act 2006 379

Environment Protection and Biodiversity Conservation Act 1999 379

Evidence and Procedure (New Zealand) Act 1994 379

Federal Court of Australia Act 1976 379

Financial Sector (Business Transfer and Group Restructure) Act 1999 380

Health Insurance Commission (Reform and Separation of Functions)

Act 1997 380

Insurance Act 1973 380

Jurisdiction of Courts (Cross-vesting) Act 1987 380

Life Insurance Act 1995 381

Liquid Fuel Emergency Act 1984 381

Medibank Private Sale Act 2006 381

Northern Territory National Emergency Response Act 2007 381

Occupational Health and Safety Act 1991 381

Occupational Health and Safety (Maritime Industry) Act 1993 381

Offshore Petroleum and Greenhouse Gas Storage Act 2006 382

Patents Act 1990 382

Payment Systems (Regulation) Act 1998 382

Private Health Insurance Act 2007 382

Proceeds of Crime Act 2002 382

Protection of the Sea (Powers of Intervention) Act 1981 382

Radiocommunications Act 1992 382

Social Security (Administration) Act 1999 383

Spam Act 2003 383

Sydney Airport Demand Management Act 1997 383

Telecommunications Act 1997 384

Telecommunications (Consumer Protection and Service Standards)

Act 1999 386

Telecommunications (Interception and Access) Act 1979 386

Trade Marks Act 1995 386

Trans-Tasman Proceedings Act 2010 386

Water Act 2007 386

Wheat Export Marketing Act 2008 386


5/401

iii Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. ,

2010

Part 2Other amendments 387

Administrative Decisions (Judicial Review) Act 1977 387

Agricultural and Veterinary Chemicals Act 1994 387

Agricultural and Veterinary Chemicals (Administration) Act 1992 387

Agricultural and Veterinary Chemicals Code Act 1994 387

Airports Act 1996 387

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 388

Banking Act 1959 388

Carriage of Goods by Sea Act 1991 388

Federal Court of Australia Act 1976 389

Food Standards Australia New Zealand Act 1991 389

Insurance Act 1973 390

Jurisdiction of Courts (Cross-vesting) Act 1987 390

Motor Vehicle Standards Act 1989 390

National Transmission Network Sale Act 1998 391

Olympic Insignia Protection Act 1987 391

Radiocommunications Act 1992 393

Wheat Export Marketing Act 2008 393

Schedule 7Transitional matters 394


6/401


7/401

Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. , 2010 1

A Bill for an Act to amend the Trade Practices Act1

1974and theAustralian Securities and Investments2

Commission Act 2001, and for other purposes3

The Parliament of Australia enacts:4

1 Short title5

This Act may be cited as the Trade Practices Amendment6(Australian Consumer Law) Act (No. 2) 2010.7

2 Commencement8

(1) Each provision of this Act specified in column 1 of the table9commences, or is taken to have commenced, in accordance with10

column 2 of the table. Any other statement in column 2 has effect11 according to its terms.12

13


8/401

2 Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. ,

2010

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

1. Sections 1 to 3and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1 to

5

The later of:

(a) the start of 1 January 2011; and

(b) immediately after the commencement ofSchedule 1 to the Trade Practices

Amendment (Australian Consumer Law)

Act (No. 1) 2010.

However, the provision(s) do not commenceat all if the event mentioned in paragraph (b)

does not occur.

3. Schedule 6,

items 1 to 46

At the same time as the provision(s) covered

by table item 2.

4. Schedule 6,

item 47

The later of:

(a) the same time as the provision(s) coveredby table item 2; and

(b) immediately after the commencement ofSchedule 1 to theBroadcasting

Legislation Amendment (Digital

Television) Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

5. Schedule 6,

items 48 to 141

At the same time as the provision(s) covered

by table item 2.

6. Schedule 6,

item 142

The later of:

(a) the same time as the provision(s) coveredby table item 2; and

(b) immediately after the commencement ofsection 3 of the Trans-TasmanProceedings Act 2010.

However, the provision(s) do not commenceat all if the event mentioned in paragraph (b)

does not occur.


9/401

Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 No. , 2010

3

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

7. Schedule 6,items 143 to 191

At the same time as the provision(s) coveredby table item 2.

8. Schedule 7 At the same time as the provision(s) covered

by table item 2.

Note: This table relates only to the provisions of this Act as originally1passed by both Houses of the Parliament and assented to. It will not be2expanded to deal with provisions inserted in this Act after assent.3

(2) Column 3 of the table contains additional information that is not4part of this Act. Information in this column may be added to or5edited in any published version of this Act.6

3 Schedule(s)7

Each Act that is specified in a Schedule to this Act is amended or8repealed as set out in the applicable items in the Schedule9concerned, and any other item in a Schedule to this Act has effect10according to its terms.11

12


10/401

Schedule 1 The Australian Consumer Law


2010

Schedule 1The Australian Consumer Law12

Trade Practices Act 19743

1 Schedule 24

Repeal the Schedule, substitute:5

Schedule 2The Australian Consumer Law6Note: See Part XI.7

89

Chapter 1Introduction101 Application of this Schedule

11

2 Definitions12

3 Meaning of consumer13

4 Misleading representations with respect to future matters14

5 When donations are treated as supplies or acquisitions15

6 Related bodies corporate16

7 Meaning of manufacturer17

8 Goods affixed to land or premises18

9 Meaning of safety defect in relation to goods19

10 Asserting a right to payment20

11 References to acquisition, supply and re-supply21

12 Application of Schedule in relation to leases and licences of land22and buildings23

13 Loss or damage to include injury24

14 Meaning of continuing credit contract25

15 Contraventions of this Schedule26

16 Severability27

17 References to provisions in this Schedule28

Chapter 2General protections29

Part 2-1Misleading or deceptive conduct30

18 Misleading or deceptive conduct31

19 Application of this Part to information providers32

Part 2-2Unconscionable conduct3320 Unconscionable conduct within the meaning of the unwritten law34

21 Unconscionable conduct35

22 Unconscionable conduct in business transactions36


11/401

The Australian Consumer Law Schedule 1


5

Part 2-3Unfair contract terms123 Unfair terms of consumer contracts2

24 Meaning of unfair3

25 Examples of unfair terms4

26 Terms that define main subject matter of consumer contracts etc.5are unaffected6

27 Standard form contracts7

28 Contracts to which this Part does not apply8

Chapter 3Specific protections9

Part 3-1Unfair practices10

Division 1False or misleading representations etc.11

29 False or misleading representations about goods or services12

30 False or misleading representations about sale etc. of land13

31 Misleading conduct relating to employment14

32 Offering rebates, gifts, prizes etc.1533 Misleading conduct as to the nature etc. of goods16

34 Misleading conduct as to the nature etc. of services17

35 Bait advertising18

36 Wrongly accepting payment19

37 Misleading representations about certain business activities20

38 Application of provisions of this Division to information providers21

Division 2Unsolicited supplies22

39 Unsolicited cards etc.23

40 Assertion of right to payment for unsolicited goods or services24

41 Liability etc. of recipient for unsolicited goods25

42 Liability of recipient for unsolicited services26

43 Assertion of right to payment for unauthorised entries or27advertisements28

Division 3Pyramid schemes29

44 Participation in pyramid schemes30

45 Meaning of pyramid scheme31

46 Marketing schemes as pyramid schemes32

Division 4Pricing33

47 Multiple pricing34

48 Single price to be specified in certain circumstances35

Division 5Other unfair practices36

49 Referral selling37

50 Harassment and coercion38


12/401



2010

Part 3-2Consumer transactions1

Division 1Consumer guarantees2

Subdivision AGuarantees relating to the supply of goods3

51 Guarantee as to title452 Guarantee as to undisturbed possession5

53 Guarantee as to undisclosed securities etc.6

54 Guarantee as to acceptable quality7

55 Guarantee as to fitness for any disclosed purpose etc.8

56 Guarantee relating to the supply of goods by description9

57 Guarantees relating to the supply of goods by sample or10demonstration model11

58 Guarantee as to repairs and spare parts12

59 Guarantee as to express warranties13

Subdivision BGuarantees relating to the supply of services14

60 Guarantee as to due care and skill15

61 Guarantees as to fitness for a particular purpose etc.1662 Guarantee as to reasonable time for supply17

63 Services to which this Subdivision does not apply18

Subdivision CGuarantees not to be excluded etc. by contract19

64 Guarantees not to be excluded etc. by contract20

Subdivision DMiscellaneous21

65 Application of this Division to supplies of gas, electricity and22telecommunications23

66 Display notices24

67 Conflict of laws25

68 Convention on Contracts for the International Sale of Goods26

Division 2Unsolicited consumer agreements27

Subdivision AIntroduction28

69 Meaning of unsolicited consumer agreement29

70 Presumption that agreements are unsolicited consumer agreements30

71 Meaning of dealer31

72 Meaning of negotiation32

Subdivision BNegotiating unsolicited consumer agreements33

73 Permitted hours for negotiating an unsolicited consumer34agreement35

74 Disclosing purpose and identity36

75 Ceasing to negotiate on request37

76 Informing person of termination period etc.38

77 Liability of suppliers for contraventions by dealers39

Subdivision CRequirements for unsolicited consumer40

agreements etc.41


13/401



7

78 Requirement to give document to the consumer1

79 Requirements for all unsolicited consumer agreements etc.2

80 Additional requirements for unsolicited consumer agreements not3negotiated by telephone4

81 Requirements for amendments of unsolicited consumer5agreements6

Subdivision DTerminating unsolicited consumer agreements7

82 Terminating an unsolicited consumer agreement during the8termination period9

83 Effect of termination10

84 Obligations of suppliers on termination11

85 Obligations and rights of consumers on termination12

86 Prohibition on supplies etc. for 10 business days13

87 Repayment of payments received after termination14

88 Prohibition on recovering amounts after termination15

Subdivision EMiscellaneous16

89 Certain provisions of unsolicited consumer agreements void1790 Waiver of rights18

91 Application of this Division to persons to whom rights of19consumers and suppliers are assigned etc.20

92 Application of this Division to supplies to third parties21

93 Effect of contravening this Division22

94 Regulations may limit the application of this Division23

95 Application of this Division to certain conduct covered by the24Corporations Act25

Division 3Lay-by agreements26

96 Lay-by agreements must be in writing etc.27

97 Termination of lay-by agreements by consumers28

98 Termination of lay-by agreements by suppliers2999 Effect of termination30

Division 4Miscellaneous31

100 Supplier must provide proof of transaction etc.32

101 Consumer may request an itemised bill33

102 Prescribed requirements for warranties against defects34

103 Repairers must comply with prescribed requirements35

Part 3-3Safety of consumer goods and product related36

services37

Division 1Safety standards38

104 Making safety standards for consumer goods and product related39

services40

105 Declaring safety standards for consumer goods and product41related services42


14/401



2010

106 Supplying etc. consumer goods that do not comply with safety1standards2

107 Supplying etc. product related services that do not comply with3safety standards4

108 Requirement to nominate a safety standard5Division 2Bans on consumer goods and product related6

services7

Subdivision AInterim bans8

109 Interim bans on consumer goods or product related services that9will or may cause injury to any person etc.10

110 Places in which interim bans apply11

111 Ban period for interim bans12

112 Interaction of multiple interim bans13

113 Revocation of interim bans14

Subdivision BPermanent bans15

114 Permanent bans on consumer goods or product related services16

115 Places in which permanent bans apply17

116 When permanent bans come into force18

117 Revocation of permanent bans19

Subdivision CCompliance with interim bans and permanent20

bans21

118 Supplying etc. consumer goods covered by a ban22

119 Supplying etc. product related services covered by a ban23

Subdivision DTemporary exemption from mutual recognition24principles25

120 Temporary exemption under the Trans-Tasman Mutual26Recognition Act 199727

121 Temporary exemption under the Mutual Recognition Act 199228

Division 3Recall of consumer goods29

Subdivision ACompulsory recall of consumer goods30

122 Compulsory recall of consumer goods31

123 Contents of a recall notice32

124 Obligations of a supplier in relation to a recall notice33

125 Notification by persons who supply consumer goods outside34Australia if there is compulsory recall35

126 Interaction of multiple recall notices36

127 Compliance with recall notices37

Subdivision BVoluntary recall of consumer goods38

128 Notification requirements for a voluntary recall of consumer39

goods40


15/401



9

Division 4Safety warning notices1

129 Safety warning notices about consumer goods and product2related services3

130 Announcement of the results of an investigation etc.4

Division 5Consumer goods, or product related services,5

associated with death or serious injury or illness6

131 Suppliers to report consumer goods associated with the death or7serious injury or illness of any person8

132 Suppliers to report product related services associated with the9death or serious injury or illness of any person10


133 Liability under a contract of insurance12

Part 3-4Information standards13134 Making information standards for goods and services14

135 Declaring information standards for goods and services15

136 Supplying etc. goods that do not comply with information16standards17

137 Supplying etc. services that do not comply with information18standards19

Part 3-5Liability of manufacturers for goods with safety20

defects21

Division 1Actions against manufacturers for goods with safety22

defects23

138 Liability for loss or damage suffered by an injured individual24

139 Liability for loss or damage suffered by a person other than an25injured individual26

140 Liability for loss or damage suffered by a person if other goods27are destroyed or damaged28

141 Liability for loss or damage suffered by a person if land,29buildings or fixtures are destroyed or damaged30

142 Defences to defective goods actions31

Division 2Defective goods actions32

143 Time for commencing defective goods actions33

144 Liability joint and several34

145 Survival of actions35

146 No defective goods action where workers compensation law etc.36applies37

147 Unidentified manufacturer38

148 Commonwealth liability for goods that are defective only39

because of compliance with Commonwealth mandatory40standard41

149 Representative actions by the regulator42


16/401



2010


150 Application of all or any provisions of this Part etc. not to be2excluded or modified3

Chapter 4Offences4Part 4-1Offences relating to unfair practices5

Division 1False or misleading representations etc.6

151 False or misleading representations about goods or services7

152 False or misleading representations about sale etc. of land8

153 Misleading conduct relating to employment9

154 Offering rebates, gifts, prizes etc.10

155 Misleading conduct as to the nature etc. of goods11

156 Misleading conduct as to the nature etc. of services12

157 Bait advertising13

158 Wrongly accepting payment14

159 Misleading representations about certain business activities15160 Application of provisions of this Division to information16

providers17

Division 2Unsolicited supplies18

161 Unsolicited cards etc.19

162 Assertion of right to payment for unsolicited goods or services20

163 Assertion of right to payment for unauthorised entries or21advertisements22

Division 3Pyramid schemes23

164 Participation in pyramid schemes24

Division 4Pricing25

165 Multiple pricing26

166 Single price to be specified in certain circumstances27

Division 5Other unfair practices28

167 Referral selling29

168 Harassment and coercion30

Part 4-2Offences relating to consumer transactions31

Division 1Consumer guarantees32

169 Display notices33

Division 2Unsolicited consumer agreements34

Subdivision ANegotiating unsolicited consumer agreements35

170 Permitted hours for negotiating an unsolicited consumer36

agreement37171 Disclosing purpose and identity38

172 Ceasing to negotiate on request39


17/401


18/401



2010

Division 2Bans on consumer goods and product related1

services2

197 Supplying etc. consumer goods covered by a ban3

198 Supplying etc. product related services covered by a ban4

Division 3Recall of consumer goods5

199 Compliance with recall orders6

200 Notification by persons who supply consumer goods outside7Australia if there is compulsory recall8

201 Notification requirements for a voluntary recall of consumer9goods10

Division 4Consumer goods, or product related services,11

associated with death or serious injury or illness12

202 Suppliers to report consumer goods etc. associated with the death13or serious injury or illness of any person14

Part 4-4Offences relating to information standards15

203 Supplying etc. goods that do not comply with information16standards17

204 Supplying etc. services that do not comply with information18standards19

Part 4-5Offences relating to substantiation notices20205 Compliance with substantiation notices21

206 False or misleading information etc.22

Part 4-6Defences23207 Reasonable mistake of fact24

208 Act or default of another person etc.25

209 Publication of advertisements in the ordinary course of business26

210 Supplying goods acquired for the purpose of re-supply27211 Supplying services acquired for the purpose of re-supply28

Part 4-7Miscellaneous29212 Prosecutions to be commenced within 3 years30

213 Preference must be given to compensation for victims31

214 Penalties for contraventions of the same nature etc.32

215 Penalties for previous contraventions of the same nature etc.33

216 Granting of injunctions etc.34

217 Criminal proceedings not to be brought for contraventions of35Chapter 2 or 336


19/401



13

Chapter 5Enforcement and remedies1

Part 5-1Enforcement2

Division 1Undertakings3

218 Regulator may accept undertakings4

Division 2Substantiation notices5

219 Regulator may require claims to be substantiated etc.6

220 Extending periods for complying with substantiation notices7

221 Compliance with substantiation notices8

222 False or misleading information etc.9

Division 3Public warning notices10

223 Regulator may issue a public warning notice11

Part 5-2Remedies12

Division 1Pecuniary penalties13

224 Pecuniary penalties14225 Pecuniary penalties and offences15

226 Defence16

227 Preference must be given to compensation for victims17

228 Civil action for recovery of pecuniary penalties18

229 Indemnification of officers19

230 Certain indemnities not authorised and certain documents void20

231 Application of section 229 to a person other than a body21corporate22

Division 2Injunctions23

232 Injunctions24

233 Consent injunctions25

234 Interim injunctions26

235 Variation and discharge of injunctions27

Division 3Damages28

236 Actions for damages29

Division 4Compensation orders etc. for injured persons and30

orders for non-party consumers31

Subdivision ACompensation orders etc. for injured persons32

237 Compensation orders etc. on application by an injured person or33the regulator34

238 Compensation orders etc. arising out of other proceedings35

Subdivision BOrders for non-party consumers36

239 Orders to redress etc. loss or damage suffered by non-party37consumers38


20/401



2010

240 Determining whether to make a redress order etc. for non-party1consumers2

241 When a non-party consumer is bound by a redress order etc.3

Subdivision CMiscellaneous4

242 Applications for orders5243 Kinds of orders that may be made6

244 Power of a court to make orders7

245 Interaction with other provisions8

Division 5Other remedies9

246 Non-punitive orders10

247 Adverse publicity orders11

248 Order disqualifying a person from managing corporations12

249 Privilege against exposure to penalty or forfeiture13disqualification from managing corporations14

250 Declarations relating to consumer contracts15

Division 6Defences16

251 Publication of advertisement in the ordinary course of business17

252 Supplying consumer goods for the purpose of re-supply18

253 Supplying product related services for the purpose of re-supply19

Part 5-3Country of origin representations20254 Overview21

255 Country of origin representations do not contravene certain22provisions23

256 Cost of producing or manufacturing goods24

257 Rules for determining the percentage of costs of production or25manufacture attributable to a country26

258 Proceedings relating to false, misleading or deceptive conduct or27

representations28

Part 5-4Remedies relating to guarantees29

Division 1Action against suppliers30

Subdivision AAction against suppliers of goods31

259 Action against suppliers of goods32

260 When a failure to comply with a guarantee is a major failure33

261 How suppliers may remedy a failure to comply with a guarantee34

262 When consumers are not entitled to reject goods35

263 Consequences of rejecting goods36

264 Replaced goods37

265 Termination of contracts for the supply of services that are38

connected with rejected goods39266 Rights of gift recipients40

Subdivision BAction against suppliers of services41


21/401



15

267 Action against suppliers of services1

268 When a failure to comply with a guarantee is a major failure2

269 Termination of contracts for the supply of services3

270 Termination of contracts for the supply of goods that are4

connected with terminated services5

Division 2Action for damages against manufacturers of goods6

271 Action for damages against manufacturers of goods7

272 Damages that may be recovered by action against manufacturers8of goods9

273 Time limit for actions against manufacturers of goods10


274 Indemnification of suppliers by manufacturers12

275 Limitation of liability etc.13

276 This Part not to be excluded etc. by contract14

277 Representative actions by the regulator15

Part 5-5Liability of suppliers and credit providers16Division 1Linked credit contracts17

278 Liability of suppliers and linked credit providers relating to18linked credit contracts19

279 Action by consumer to recover amount of loss or damage20

280 Cases where a linked credit provider is not liable21

281 Amount of liability of linked credit providers22

282 Counter-claims and offsets23

283 Enforcement of judgments etc.24

284 Award of interest to consumers25

285 Liability of suppliers to linked credit providers, and of linked26credit providers to suppliers27

286 Joint liability proceedings and recovery under section 135 of the28National Credit Code29

Division 2Non-linked credit contracts30

287 Liability of suppliers and credit providers relating to non-linked31credit contracts32

Chapter 1Introduction33

1 Application of this Schedule34

This Schedule applies to the extent provided by:35

(a) Part XI of the Competition and Consumer Act; or36

(b) an application law.37


22/401



2010

2 Definitions1

(1) In this Schedule:2

ABNhas the meaning given by section 41 of theA New Tax3 System (Australian Business Number) Act 1999.4

acceptable quality: see sections 54(2) to (7).5

ACNhas the meaning given by section 9 of the Corporations Act62001.7

acquireincludes:8

(a) in relation to goodsacquire by way of purchase, exchange9or taking on lease, on hire or on hire-purchase; and10

(b) in relation to servicesaccept.11

Note: Section 5 deals with when receipt of a donation is an acquisition.12

adverse publicity order: see section 247(2).13

affected person, in relation to goods, means:14

(a) a consumer who acquires the goods; or15

(b) a person who acquires the goods from the consumer (other16than for the purpose of re-supply); or17

(c) a person who derives title to the goods through or under the18consumer.19

agreement document: see section 78(2).20

applicable industry codehas the meaning given by21section 51ACA(1) of the Competition and Consumer Act.22

application lawhas the same meaning as in section 140 of the23Competition and Consumer Act.24

articleincludes a token, card or document.25

ASICmeans the Australian Securities and Investments26Commission.27

assert a right to payment: see section 10(1).28

associate regulator:29(a) for the purposes of the application of this Schedule as a law30

of the Commonwealthmeans a body that is, for the31


23/401



17

purposes of the application of this Schedule as a law of a1State or a Territory, the regulator within the meaning of the2application law of the State or Territory; or3

(b) for the purposes of the application of this Schedule as a law4of a State or a Territorymeans:5

(i) the Commission; or6

(ii) a body that is, for the purposes of the application of this7Schedule as a law of another State or a Territory, the8regulator within the meaning of the application law of9that other State or Territory.10

authority, in relation to a State or a Territory (including an external11Territory), means:12

(a) a body corporate established for a purpose of the State or the13Territory by or under a law of the State or Territory; or14

(b) an incorporated company in which the State or the Territory,15or a body corporate referred to in paragraph (a), has a16controlling interest.17

authority of the Commonwealthmeans:18

(a) a body corporate established for a purpose of the19Commonwealth by or under a law of the Commonwealth or a20law of a Territory; or21

(b) an incorporated company in which the Commonwealth, or a22body corporate referred to in paragraph (a), has a controlling23interest.24

bankerhas the same meaning as in section 4(1) of the Competition25and Consumer Act.26

ban periodfor an interim ban: see section 111(1).27

businessincludes a business not carried on for profit.28

business day, in relation to an unsolicited consumer agreement,29means a day that is not:30

(a) a Saturday or Sunday; or31

(b) a public holiday in the place where the agreement was made.32

business or professionalrelationshipincludes a relationship33between employer and employee, or a similar relationship.34


24/401



2010

call on, in relation to negotiating an unsolicited consumer1agreement, does not include call by telephone.2

Commissionhas the same meaning as in section 4(1) of the3

Competition and Consumer Act.4

Commonwealth mandatory standard, in relation to goods, means a5mandatory standard in respect of the goods imposed by a law of the6Commonwealth.7

Commonwealth Ministermeans the Minister who administers8Part XI of the Competition and Consumer Act.9

Competition and Consumer Actmeans the Competition and10Consumer Act 2010.11

consumer: see section 3.12

consumer contract: see section 23(3).13

consumer goodsmeans goods that are intended to be used, or are14of a kind likely to be used, for personal, domestic or household use15or consumption, and includes any such goods that have become16fixtures since the time they were supplied if:17

(a) a recall notice for the goods has been issued; or18

(b) a person has voluntarily taken action to recall the goods.19

continuing credit contract: see section 14(1).20

contravening conduct: see section 239(1)(a)(i).21

court, in relation to a matter, means any court having jurisdiction22in the matter.23

coveringincludes a stopper, glass, bottle, vessel, box, capsule,24case, frame or wrapper.25

credit card: see section 39(5).26

credit providermeans a person providing, or proposing to provide,27in the course of a business carried on by the person, credit to28consumers in relation to the acquisition of goods or services.29

dealer: see section 71.30

debit card: see section 39(6).31


25/401



19

declared term: see section 239(1)(a)(ii).1

defective goods actionmeans an action under section 138, 139,2140 or 141, and includes such an action because of section 138(3)3

or 145.4

disclosed purpose: see section 55(2).5

displayed price: see sections 47(2) to (5).6

documentincludes:7

(a) a book, plan, paper, parchment or other material on which8there is writing or printing, or on which there are marks,9symbols or perforations having a meaning for persons10qualified to interpret them; and11

(b) a disc, tape, paper or other device from which sounds or12

messages are capable of being reproduced.13

enforcement proceedingmeans:14

(a) a proceeding for an offence against Chapter 4; or15

(b) a proceeding instituted under Chapter 5 (other than under16sections 237 and 239).17

evidential burden, in relation to a matter, means the burden of18adducing or pointing to evidence that suggests a reasonable19possibility that the matter exists or does not exist.20

express warranty, in relation to goods, means an undertaking,21assertion or representation:22

(a) that relates to:23

(i) the quality, state, condition, performance or24characteristics of the goods; or25

(ii) the provision of services that are or may at any time be26required for the goods; or27

(iii) the supply of parts that are or may at any time be28required for the goods; or29

(iv) the future availability of identical goods, or of goods30constituting or forming part of a set of which the goods,31in relation to which the undertaking, assertion or32representation is given or made, form part; and33


26/401



2010

(b) that is given or made in connection with the supply of the1goods, or in connection with the promotion by any means of2the supply or use of the goods; and3

(c) the natural tendency of which is to induce persons to acquire4the goods.5

financial producthas the meaning given by section 12BAA of the6Australian Securities and Investments Commission Act 2001.7

financial servicehas the meaning given by section 12BAB of the8Australian Securities and Investments Commission Act 2001.9

free itemincludes a free service.10

goodsincludes:11

(a) ships, aircraft and other vehicles; and12

(b) animals, including fish; and13(c) minerals, trees and crops, whether on, under or attached to14

land or not; and15

(d) gas and electricity; and16

(e) computer software; and17

(f) second-hand goods; and18

(g) any component part of, or accessory to, goods.19

grown: see section 255(7).20

GSThas the meaning given by section 195-1 of theA New Tax21System (Goods and Services Tax) Act 1999.22

industry codehas the meaning given by section 51ACA of the23Competition and Consumer Act.24

information provider: see sections 19(5) and (6).25

information standard: see sections 134(1) and 135(1).26

inner containerincludes any container into which goods are27packed, other than a shipping or airline container, pallet or other28similar article.29

interest, in relation to land, means:30

(a) a legal or equitable estate or interest in the land; or31


27/401



21

(b) a right of occupancy of the land, or of a building or part of a1building erected on the land, arising by virtue of the holding2of shares, or by virtue of a contract to purchase shares, in an3incorporated company that owns the land or building; or4

(c) a right, power or privilege over, or in connection with, the5land.6

interim ban: see sections 109(1) and (2).7

involved: a person is involved, in a contravention of a provision of8this Schedule or in conduct that constitutes such a contravention, if9the person:10

(a) has aided, abetted, counselled or procured the contravention;11or12

(b) has induced, whether by threats or promises or otherwise, the13contravention; or14

(c) has been in any way, directly or indirectly, knowingly15concerned in, or party to, the contravention; or16

(d) has conspired with others to effect the contravention.17

joint liability proceedingsmeans proceedings relating to the joint18and several liability under section 278 of a linked credit provider19and a supplier of goods or services.20

labelincludes a band or ticket.21

lay-by agreement: see section 96(3).22

linked credit contract: see section 278(2).23

linked credit provider, in relation to a supplier of goods or24services, means a credit provider:25

(a) with whom the supplier has a contract, arrangement or26understanding relating to:27

(i) the supply to the supplier of goods in which the supplier28deals; or29

(ii) the business carried on by the supplier of supplying30goods or services; or31

(iii) the provision to persons to whom goods or services are32supplied by the supplier of credit in respect of payment33for those goods or services; or34


28/401



2010

(b) to whom the supplier, by arrangement with the credit1provider, regularly refers persons for the purpose of obtaining2credit; or3

(c) whose forms of contract, forms of application or offers for4credit are, by arrangement with the credit provider, made5available to persons by the supplier; or6

(d) with whom the supplier has a contract, arrangement or7understanding under which contracts, applications or offers8for credit from the credit provider may be signed by persons9at premises of the supplier.10

listed public companyhas the meaning given by section 995-1(1)11theIncome Tax Assessment Act 1997.12

loan contractmeans a contract under which a person in the course13of a business carried on by that person provides or agrees to14

provide, whether on one or more occasions, credit to a consumer in15one or more of the following ways:16

(a) by paying an amount to, or in accordance with the17instructions of, the consumer;18

(b) by applying an amount in satisfaction or reduction of an19amount owed to the person by the consumer;20

(c) by varying the terms of a contract under which money owed21to the person by the consumer is payable;22

(d) by deferring an obligation of the consumer to pay an amount23to the person;24

(e) by taking from the consumer a bill of exchange or other25

negotiable instrument on which the consumer (whether alone26or with another person or other persons) is liable as drawer,27acceptor or endorser.28

major failure: see sections 260 and 268.29

mandatory standard, in relation to goods, means a standard:30

(a) for the goods or anything relating to the goods; and31

(b) that, under a law of the Commonwealth, a State or a32Territory, must be complied with when the goods are33supplied by their manufacturer, being a law creating an34offence or liability if there is such non-compliance;35

but does not include a standard which may be complied with by36meeting a higher standard.37


29/401



23

manufacturer: see section 7.1

markethas the same meaning as in section 4E of the Competition2and Consumer Act.3

materials, in relation to goods, means:4

(a) if the goods are unmanufactured raw productsthose5products; and6

(b) if the goods are manufactured goodsall matter or7substances used or consumed in the manufacture of the goods8(other than matter or substances that are treated as9overheads); and10

(c) in either casethe inner containers in which the goods are11packed.12

mixed supply: see section 3(11).13

National Credit Codehas the meaning given by section 5(1) of the14National Consumer Credit Protection Act 2009.15

negotiated by telephone: see section 78(3).16

negotiation: see section 72.17

new participant: see section 45(2).18

non-linked credit contract: see section 287(5).19

non-party consumer means:20

(a) in relation to conduct referred to in section 239(1)(a)(i)a21 person who is not, or has not been, a party to an enforcement22proceeding in relation to the conduct; and23

(b) in relation to a term of a consumer contract referred to in24section 239(1)(a)(ii)a person who is not, or has not been, a25party to an enforcement proceeding in relation to the term.26

participant, in a pyramid scheme, means a person who participates27in the scheme.28

participate, in a pyramid scheme: see section 44(3).29

participation payment: see section 45(1)(a).30

permanent ban: see sections 114(1) and (2).31


30/401



2010

premisesmeans:1

(a) an area of land or any other place (whether or not it is2enclosed or built on); or3

(b) a building or other structure; or4

(c) a vehicle, vessel or aircraft; or5

(d) a part of any such premises.6

price, of goods or services, means:7

(a) the amount paid or payable (including any charge of any8description) for their acquisition; or9

(b) if such an amount is not specified because the acquisition is10part only of a transaction for which a total amount is paid or11payable:12

(i) the lowest amount (including any charge of any13description) for which the goods or services could14

reasonably have been acquired from the supplier at the15time of the transaction or, if not from the supplier, from16another supplier; or17

(ii) if they could not reasonably have been acquired18separately from another suppliertheir value at the time19of the transaction.20

prior negotiations or arrangements, in relation to the acquisition21of goods by a consumer, means negotiations or arrangements:22

(a) that were conducted or made with the consumer by another23person in the course of a business carried on by the other24person; and25

(b) that induced the consumer to acquire the goods, or otherwise26promoted the acquisition of the goods by the consumer.27

product related servicemeans a service for or relating to:28

(a) the installation of consumer goods of a particular kind; or29

(b) the maintenance, repair or cleaning of consumer goods of a30particular kind; or31

(c) the assembly of consumer goods of a particular kind; or32

(d) the delivery of consumer goods of a particular kind;33

and, without limiting paragraphs (a) to (d), includes any other34service that relates to the supply of consumer goods of that kind.35

proof of transaction: see section 100(4).36


31/401



25

publish, in relation to an advertisement, means include in a1publication intended for sale or public distribution (whether to the2public generally or to a restricted class or number of persons) or for3public display (including in an electronic form).4

pyramid scheme: see section 45(1).5

recall notice: see section 122(1).6

recovery period: see section 41(4).7

recruitment payment: see section 45(1)(b).8

regulationsmeans regulations made under section 139G of the9Competition and Consumer Act.10

regulator:11

(a) for the purposes of the application of this Schedule as a law12of the Commonwealthmeans the Commission; or13

(b) for the purposes of the application of this Schedule as a law14of a State or a Territoryhas the meaning given by the15application law of the State or Territory.16

rejection period: see section 262(2).17

related, in relation to a body corporate: see section 6.18

related contract or instrument: see section 83(2).19

rely on, in relation to a term of a consumer contract, includes the20

following:21

(a) attempt to enforce the term;22

(b) attempt to exercise a right conferred, or purportedly23conferred, by the term;24

(c) assert the existence of a right conferred, or purportedly25conferred, by the term.26

responsible Ministermeans:27

(a) the Commonwealth Minister; or28

(b) the Minister of a State who administers the application law of29the State; or30

(c) the Minister of a Territory who administers the application31law of the Territory.32


32/401



2010

safety defect, in relation to goods: see section 9.1

safety standard: see sections 104(1) and 105(1).2

sale by auction, in relation to the supply of goods by a person,3 means a sale by auction that is conducted by an agent of the person4(whether the agent acts in person or by electronic means).5

sendincludes deliver, andsentandsenderhave corresponding6meanings.7

serious injury or illnessmeans an acute physical injury or illness8that requires medical or surgical treatment by, or under the9supervision of, a medical practitioner or a nurse (whether or not in10a hospital, clinic or similar place), but does not include:11

(a) an ailment, disorder, defect or morbid condition (whether of12sudden onset or gradual development); or13

(b) the recurrence, or aggravation, of such an ailment, disorder,14defect or morbid condition.15

servicesincludes:16

(a) any rights (including rights in relation to, and interests in,17real or personal property), benefits, privileges or facilities18that are, or are to be, provided, granted or conferred in trade19or commerce; and20

(b) without limiting paragraph (a), the rights, benefits, privileges21or facilities that are, or are to be, provided, granted or22conferred under:23

(i) a contract for or in relation to the performance of work24(including work of a professional nature), whether with25or without the supply of goods; or26

(ii) a contract for or in relation to the provision of, or the27use or enjoyment of facilities for, amusement,28entertainment, recreation or instruction; or29

(iii) a contract for or in relation to the conferring of rights,30benefits or privileges for which remuneration is payable31in the form of a royalty, tribute, levy or similar exaction;32or33

(iv) a contract of insurance; or34

(v) a contract between a banker and a customer of the35banker entered into in the course of the carrying on by36the banker of the business of banking; or37


33/401



27

(vi) any contract for or in relation to the lending of money;1

but does not include rights or benefits being the supply of goods or2the performance of work under a contract of service.3

shareincludes stock.4

shiphas the meaning given by section 3(1) of theAdmiralty Act51988.6

single price: see section 48(7).7

substantially transformed, in relation to goods: see section 255(3).8

substantiation noticemeans a notice under section 219.9

substantiation notice compliance period: see section 221(2).10

supply, when used as a verb, includes:11

(a) in relation to goodssupply (including re-supply) by way of12sale, exchange, lease, hire or hire-purchase; and13

(b) in relation to servicesprovide, grant or confer;14

and, when used as a noun, has a corresponding meaning, and15suppliedandsupplierhave corresponding meanings.16

Note: Section 5 deals with when a donation is a supply.17

supply of limited title: see section 51(2).18

telecommunications service: see section 65(2).19

termination charge: see section 97(2).20

termination period, in relation to an unsolicited consumer21agreement, means the period within which the consumer under the22agreement is, under section 82 or under the agreement, entitled to23terminate the agreement.24

tied continuing credit contractmeans a continuing credit contract25under which a credit provider provides credit in respect of the26payment by a consumer for goods or services supplied by a27supplier in relation to whom the credit provider is a linked credit28provider.29

tied loan contractmeans a loan contract entered into between a30credit provider and a consumer where:31


34/401



2010

(a) the credit provider knows, or ought reasonably to know, that1the consumer enters into the loan contract wholly or partly2for the purposes of payment for goods or services supplied by3a supplier; and4

(b) at the time the loan contract is entered into the credit provider5is a linked credit provider of the supplier.6

trade or commercemeans:7

(a) trade or commerce within Australia; or8

(b) trade or commerce between Australia and places outside9Australia;10

and includes any business or professional activity (whether or not11carried on for profit).12

transparent:13

(a) in relation to a documentmeans:14(i) expressed in reasonably plain language; and15

(ii) legible; and16

(iii) presented clearly; and17

(b) in relation to a term of a consumer contractsee18section 24(3).19

unfair, in relation to a term of a consumer contract: see20section 24(1).21

unsolicited consumer agreement: see section 69.22

unsolicited goodsmeans goods sent to a person without any23 request made by the person or on his or her behalf.24

unsolicited servicesmeans services supplied to a person without25any request made by the person or on his or her behalf.26

upfront price: see section 26(2).27

warranty against defects: see section 102(3).28

(2) In this Schedule:29

(a) a reference to engaging in conduct is a reference to doing or30refusing to do any act, including:31

(i) the making of, or the giving effect to a provision of, a32contract or arrangement; or33


35/401



29

(ii) the arriving at, or the giving effect to a provision of, an1understanding; or2

(iii) the requiring of the giving of, or the giving of, a3covenant; and4

(b) a reference to conduct, when that expression is used as a5noun otherwise than as mentioned in paragraph (a), is a6reference to the doing of or the refusing to do any act,7including:8

(i) the making of, or the giving effect to a provision of, a9contract or arrangement; or10

(ii) the arriving at, or the giving effect to a provision of, an11understanding; or12

(iii) the requiring of the giving of, or the giving of, a13covenant; and14

(c) a reference to refusing to do an act includes a reference to:15

(i) refraining (otherwise than inadvertently) from doing16that act; or17

(ii) making it known that that act will not be done; and18

(d) a reference to a person offering to do an act, or to do an act19on a particular condition, includes a reference to the person20making it known that the person will accept applications,21offers or proposals for the person to do that act or to do that22act on that condition, as the case may be.23

3 Meaning ofconsumer24

Acquiring goods as a consumer25

(1) A person is taken to have acquired particular goods as aconsumer26if, and only if:27

(a) the amount paid or payable for the goods, as worked out28under subsections (4) to (9), did not exceed:29

(i) $40,000; or30

(ii) if a greater amount is prescribed for the purposes of this31paragraphthat greater amount; or32

(b) the goods were of a kind ordinarily acquired for personal,33domestic or household use or consumption; or34

(c) the goods consisted of a vehicle or trailer acquired for use35principally in the transport of goods on public roads.36


36/401



2010

(2) However, subsection (1) does not apply if the person acquired the1goods, or held himself or herself out as acquiring the goods:2

(a) for the purpose of re-supply; or3

(b) for the purpose of using them up or transforming them, in4trade or commerce:5

(i) in the course of a process of production or manufacture;6or7

(ii) in the course of repairing or treating other goods or8fixtures on land.9

Acquiring services as a consumer10

(3) A person is taken to have acquired particular services as a11consumerif, and only if:12

(a) the amount paid or payable for the services, as worked out13

under subsections (4) to (9), did not exceed:14(i) $40,000; or15

(ii) if a greater amount is prescribed for the purposes of16subsection (1)(a)that greater amount; or17

(b) the services were of a kind ordinarily acquired for personal,18domestic or household use or consumption.19

Amounts paid or payable for purchases20

(4) For the purposes of subsection (1) or (3), the amount paid or21payable for goods or services purchased by a person is taken to be22the price paid or payable by the person for the goods or services,23

unless subsection (5) applies.24

(5) For the purposes of subsection (1) or (3), if a person purchased25goods or services by a mixed supply and a specified price was not26allocated to the goods or services in the contract under which they27were purchased, the amount paid or payable for goods or services28is taken to be:29

(a) if, at the time of the acquisition, the person could have30purchased from the supplier the goods or services other than31by a mixed supplythe price at which they could have been32purchased from the supplier; or33

(b) if:34

(i) paragraph (a) does not apply; but35


37/401



31

(ii) at the time of the acquisition, goods or services of the1kind acquired could have been purchased from another2supplier other than by a mixed supply;3

the lowest price at which the person could, at that time,4reasonably have purchased goods or services of that kind5from another supplier; or6

(c) if, at the time of the acquisition, goods or services of the kind7acquired could not have been purchased from any supplier8except by a mixed supplythe value of the goods or services9at that time.10

Amounts paid or payable for other acquisitions11

(6) For the purposes of subsection (1) or (3), the amount paid or12payable for goods or services acquired by a person other than by13way of purchase is taken to be the price at which, at the time of the14acquisition, the person could have purchased the goods or services15from the supplier, unless subsection (7) or (8) applies.16

(7) For the purposes of subsection (1) or (3), if:17

(a) goods or services acquired by a person other than by way of18purchase could not, at the time of the acquisition, have been19purchased from the supplier, or could have been purchased20only by a mixed supply; but21

(b) at that time, goods or services of the kind acquired could22have been purchased from another supplier other than by a23mixed supply;24

the amount paid or payable for the goods or services is taken to be25the lowest price at which the person could, at that time, reasonably26have purchased goods or services of that kind from another27supplier.28

(8) For the purposes of subsection (1) or (3), if goods or services29acquired by a person other than by way of purchase could not, at30the time of the acquisition, have been purchased from any supplier31other than by a mixed supply, the amount paid or payable for the32goods or services is taken to be the value of the goods or services33at that time.34

Amounts paid or payable for obtaining credit35

(9) If:36


38/401



2010

(a) a person obtains credit in connection with the acquisition of1goods or services by him or her; and2

(b) the amount paid or payable by him or her for the goods or3services is increased because he or she so obtains credit;4

obtaining the credit is taken for the purposes of subsection (3) to be5the acquisition of a service, and the amount paid or payable by him6or her for the service of being provided with the credit is taken to7include the amount of the increase.8

Presumption that persons are consumers9

(10) If it is alleged in any proceeding under this Schedule, or in any10other proceeding in respect of a matter arising under this Schedule,11that a person was a consumer in relation to particular goods or12services, it is presumed, unless the contrary is established, that the13person was a consumer in relation to those goods or services.14

Mixed supplies15

(11) A purchase or other acquisition of goods or services is made by a16mixed supplyif the goods or services are purchased or acquired17together with other property or services, or together with both other18property and other services.19

Supplies to consumers20

(12) In this Schedule, a reference to a supply of goods or services to a21consumer is a reference to a supply of goods or services to a person22

who is taken to have acquired them as a consumer.23

4 Misleading representations with respect to future matters24

(1) If:25

(a) a person makes a representation with respect to any future26matter (including the doing of, or the refusing to do, any act);27and28

(b) the person does not have reasonable grounds for making the29representation;30

the representation is taken, for the purposes of this Schedule, to be31

misleading.32


39/401



33

(2) For the purposes of applying subsection (1) in relation to a1proceeding concerning a representation made with respect to a2future matter by:3

(a) a party to the proceeding; or4

(b) any other person;5

the party or other person is taken not to have had reasonable6grounds for making the representation, unless evidence is adduced7to the contrary.8

(3) To avoid doubt, subsection (2) does not:9

(a) have the effect that, merely because such evidence to the10contrary is adduced, the person who made the representation11is taken to have had reasonable grounds for making the12representation; or13

(b) have the effect of placing on any person an onus of proving14

that the person who made the representation had reasonable15grounds for making the representation.16

(4) Subsection (1) does not limit by implication the meaning of a17reference in this Schedule to:18

(a) a misleading representation; or19

(b) a representation that is misleading in a material particular; or20

(c) conduct that is misleading or is likely or liable to mislead;21

and, in particular, does not imply that a representation that a person22makes with respect to any future matter is not misleading merely23because the person has reasonable grounds for making the24representation.25

5 When donations are treated as supplies or acquisitions26

(1) For the purposes of this Schedule, other than Parts 3-3, 3-4, 4-327and 4-4:28

(a) a donation of goods or services is not treated as a supply of29the goods or services unless the donation is for promotional30purposes; and31

(b) receipt of a donation of goods or services is not treated as an32acquisition of the goods or services unless the donation is for33promotional purposes.34

(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:35


40/401



2010

(a) any donation of goods or services is treated as a supply of the1goods or services; and2

(b) receipt of any donation of goods or services is treated as an3acquisition of the goods or services.4

6 Related bodies corporate5

(1) A body corporate is taken to berelatedto another body corporate if6the bodies corporate would, under section 4A(5) of the7Competition and Consumer Act, be deemed to be related to each8other.9

(2) In proceedings under this Schedule, it is presumed, unless the10contrary is established, that bodies corporate are not, or were not at11a particular time, related to each other.12

7 Meaning ofmanufacturer13

(1) Amanufacturerincludes the following:14

(a) a person who grows, extracts, produces, processes or15assembles goods;16

(b) a person who holds himself or herself out to the public as the17manufacturer of goods;18

(c) a person who causes or permits the name of the person, a19name by which the person carries on business or a brand or20mark of the person to be applied to goods supplied by the21person;22

(d) a person (thefirst person) who causes or permits another23person, in connection with:24

(i) the supply or possible supply of goods by that other25person; or26

(ii) the promotion by that other person by any means of the27supply or use of goods;28

to hold out the first person to the public as the manufacturer29of the goods;30

(e) a person who imports goods into Australia if:31

(i) the person is not the manufacturer of the goods; and32

(ii) at the time of the importation, the manufacturer of the33

goods does not have a place of business in Australia.34


41/401



35

(2) For the purposes of subsection (1)(c):1

(a) a name, brand or mark is taken to be applied to goods if:2

(i) it is woven in, impressed on, worked into or annexed or3affixed to the goods; or4

(ii) it is applied to a covering, label, reel or thing in or with5which the goods are supplied; and6

(b) if the name of a person, a name by which a person carries on7business or a brand or mark of a person is applied to goods, it8is presumed, unless the contrary is established, that the9person caused or permitted the name, brand or mark to be10applied to the goods.11

(3) If goods are imported into Australia on behalf of a person, the12person is taken, for the purposes of paragraph (1)(e), to have13imported the goods into Australia.14

8 Goods affixed to land or premises15

For the purposes of this Schedule, goods are taken to be supplied to16a consumer even if they are affixed to land or premises at the time17of the supply.18

9 Meaning ofsafety defectin relation to goods19

(1) For the purposes of this Schedule, goods have asafety defectif20their safety is not such as persons generally are entitled to expect.21

(2) In determining the extent of the safety of goods, regard is to be22

given to all relevant circumstances, including:23

(a) the manner in which, and the purposes for which, they have24been marketed; and25

(b) their packaging; and26

(c) the use of any mark in relation to them; and27

(d) any instructions for, or warnings with respect to, doing, or28refraining from doing, anything with or in relation to them;29and30

(e) what might reasonably be expected to be done with or in31relation to them; and32

(f) the time when they were supplied by their manufacturer.33


42/401



2010

(3) An inference that goods have a safety defect is not to be made only1because of the fact that, after they were supplied by their2manufacturer, safer goods of the same kind were supplied.3

(4) An inference that goods have a safety defect is not to be made only4because:5

(a) there was compliance with a Commonwealth mandatory6standard for them; and7

(b) that standard was not the safest possible standard having8regard to the latest state of scientific or technical knowledge9when they were supplied by their manufacturer.10

10 Asserting a right to payment11

(1) A person is taken toassert a right to paymentfrom another person12if the person:13

(a) makes a demand for the payment or asserts a present or14prospective right to the payment; or15

(b) threatens to bring any legal proceedings with a view to16obtaining the payment; or17

(c) places or causes to be placed the name of the other person on18a list of defaulters or debtors, or threatens to do so, with a19view to obtaining the payment; or20

(d) invokes or causes to be invoked any other collection21procedure, or threatens to do so, with a view to obtaining the22payment; or23

(e) sends any invoice or other document that:24

(i) states the amount of the payment; or25

(ii) sets out the price of unsolicited goods or unsolicited26services; or27

(iii) sets out the charge for placing, in a publication, an entry28or advertisement;29

and does not contain a statement, to the effect that the30document is not an assertion of a right to a payment, that31complies with any requirements prescribed by the32regulations.33

(2) For the purposes of this section, an invoice or other document34

purporting to have been sent by or on behalf of a person is taken to35have been sent by that person unless the contrary is established.36


43/401



37

11 References to acquisition, supply and re-supply1

In this Schedule:2

(a) a reference to the acquisition of goods includes a reference to3

the acquisition of property in, or rights in relation to, goods4pursuant to a supply of the goods; and5

(b) a reference to the supply or acquisition of goods or services6includes a reference to agreeing to supply or acquire goods or7services; and8

(c) a reference to the supply or acquisition of goods includes a9reference to the supply or acquisition of goods together with10other property or services, or both; and11

(d) a reference to the supply or acquisition of services includes a12reference to the supply or acquisition of services together13with property or other services, or both; and14

(e) a reference to the re-supply of goods acquired from a person15includes a reference to:16

(i) a supply of the goods to another person in an altered17form or condition; and18

(ii) a supply to another person of goods in which the19first-mentioned goods have been incorporated; and20

(f) a reference to the re-supply of services (theoriginal services)21acquired from a person (theoriginal supplier) includes a22reference to:23

(i) a supply of the original services to another person in an24altered form or condition; and25

(ii) a supply to another person of other services that are26substantially similar to the original services, and could27not have been supplied if the original services had not28been acquired by the person who acquired them from29the original supplier.30

12 Application of Schedule in relation to leases and licences of land31

and buildings32

In this Schedule:33

(a) a reference to a contract includes a reference to a lease of, or34a licence in respect of, land or a building or part of a building35(despite the express references in this Schedule to such leases36or licences); and37


44/401



2010

(b) a reference to making or entering into a contract, in relation1to such a lease or licence, is a reference to granting or taking2the lease or licence; and3

(c) a reference to a party to a contract, in relation to such a lease4or licence, includes a reference to any person bound by, or5entitled to the benefit of, any provision contained in the lease6or licence.7

13 Loss or damage to include injury8

In this Schedule:9

(a) a reference to loss or damage, other than a reference to the10amount of any loss or damage, includes a reference to injury;11and12

(b) a reference to the amount of any loss or damage includes a13

reference to damages in respect of an injury.14

14 Meaning ofcontinuing credit contract15

(1) If:16

(a) a person (thecreditor), in the course of a business carried on17by the creditor, agrees with a consumer to provide credit to18the consumer in relation to:19

(i) payment for goods or services; or20

(ii) cash supplied by the creditor to the consumer from time21to time; or22

(iii) payment by the creditor to another person in relation to23 goods or services, or cash, supplied by that other person24to the consumer from time to time; and25

(b) the creditor:26

(i) has an agreement, arrangement or understanding (the27credit agreement) with the consumer in relation to the28provision of the credit; or29

(ii) is engaged in a course of dealing (thecredit dealing)30with the consumer in relation to the provision of the31credit; and32

(c) the amounts owing to the creditor from time to time under the33credit agreement or credit dealing are, or are to be, calculated34on the basis that:35

(i) all amounts owing; and36


45/401



39

(ii) all payments made;1

by the consumer under, or in respect of, the credit agreement2or credit dealing are entered in one or more accounts kept for3the purpose of that agreement or dealing;4

the credit agreement or credit dealing is taken, for the purposes of5this Schedule, to be acontinuing credit contract.6

(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the7purposes of this section, to have provided credit to the consumer in8relation to any goods or services, or cash, supplied by another9person to the consumer to the extent of any payments made, or to10be made, by the creditor to that other person.11

15 Contraventions of this Schedule12

Conduct is not taken, for the purposes of this Schedule, to13contravene a provision of this Schedule merely because of the14application of:15

(a) section 23(1); or16

(b) a provision of Division 1 of Part 3-2 (other than17section 66(2)); or18

(c) a provision of Part 3-5.19

16 Severability20

(1) If the making of a contract after the commencement of this section21contravenes this Schedule because the contract includes a22

particular provision, nothing in this Schedule affects the validity or23enforceability of the contract otherwise than in relation to that24provision, so far as that provision is severable.25

(2) This section has effect subject to any order made under Division 426of Part 5-2.27

17 References to provisions in this Schedule28

In this Schedule, a reference to a provision is a reference to a29provision of this Schedule, unless the contrary intention appears.30

31


46/401



2010

Chapter 2General protections1

Part 2-1Misleading or deceptive conduct23

18 Misleading or deceptive conduct4

(1) A person must not, in trade or commerce, engage in conduct that is5misleading or deceptive or is likely to mislead or deceive.6

(2) Nothing in Part 3-1 (which is about unfair practices) limits by7implication subsection (1).8

Note: For rules relating to representations as to the country of origin of9goods, see Part 5-3.10

19 Application of this Part to information providers11

(1) This Part does not apply to a publication of matter by an12information provider if:13

(a) in any casethe information provider made the publication14in the course of carrying on a business of providing15information; or16

(b) if the information provider is the Australian Broadcasting17Corporation, the Special Broadcasting Service Corporation or18the holder of a licence granted under theBroadcasting19Services Act 1992the publication was by way of a radio or20television broadcast by the information provider.21

(2) Subsection (1) does not apply to a publication of an advertisement.22

(3) Subsection (1) does not apply to a publication of matter in23connection with the supply or possible supply of, or the promotion24by any means of the supply or use of, goods or services (the25

publicised goods or services), if:26

(a) the publicised goods or services were goods or services of a27kind supplied by the information provider or, if the28information provider is a body corporate, by a body corporate29that is related to the information provider; or30

(b) the publication was made on behalf of, or pursuant to a31contract, arrangement or understanding with, a person who32


47/401



41

supplies goods or services of the same kind as the publicised1goods or services; or2

(c) the publication was made on behalf of, or pursuant to a3contract, arrangement or understanding with, a body4corporate that is related to a body corporate that supplies5goods or services of the same kind as the publicised goods or6services.7

(4) Subsection (1) does not apply to a publication of matter in8connection with the sale or grant, or possible sale or grant, of, or9the promotion by any means of the sale or grant of, interests in land10(thepublicised interests in land), if:11

(a) the publicised interests in land were interests of a kind sold or12granted by the information provider or, if the information13provider is a body corporate, by a body corporate that is14related to the information provider; or15

(b) the publication was made on behalf of, or pursuant to a16contract, arrangement or understanding with, a person who17sells or grants interests of the same kind as the publicised18interests in land; or19

(c) the publication was made on behalf of, or pursuant to a20contract, arrangement or understanding with, a body21corporate that is related to a body corporate that sells or22grants interests of the same kind as the publicised interests in23land.24

(5) An information provideris a person who carries on a business of25

providing information.26

(6) Without limiting subsection (5), each of the following is an27information provider:28

(a) the holder of a licence granted under theBroadcasting29Services Act 1992;30

(b) a person who is the provider of a broadcasting service under31a class licence under that Act;32

(c) the holder of a licence continued in force by section 5(1) of33theBroadcasting Services (Transitional Provisions and34Consequential Amendments) Act 1992;35

(d) the Australian Broadcasting Corporation;36

(e) the Special Broadcasting Service Corporation.3738


48/401



2010

Part 2-2Unconscionable conduct12

20 Unconscionable conduct within the meaning of the unwritten law3

(1) A person must not, in trade or commerce, engage in conduct that is4unconscionable, within the meaning of the unwritten law from time5to time.6

Note: A pecuniary penalty may be imposed for a contravention of this7subsection.8

(2) This section does not apply to conduct that is prohibited by9section 21 or 22.10

21 Unconscionable conduct11

(1) A person must not, in trade or commerce, in connection with the12supply or possible supply of goods or services to another person,13engage in conduct that is, in all the circumstances, unconscionable.14


(2) Without in any way limiting the matters to which the court may17have regard for the purpose of determining whether a person (the18

supplier) has contravened subsection (1) in connection with the19supply or possible supply of goods or services to another person20(theconsumer), the court may have regard to:21

(a) the relative strengths of the bargaining positions of the22

supplier and the consumer; and23

(b) whether, as a result of conduct engaged in by the person, the24consumer was required to comply with conditions that were25not reasonably necessary for the protection of the legitimate26interests of the supplier; and27

(c) whether the consumer was able to understand any documents28relating to the supply or possible supply of the goods or29services; and30

(d) whether any undue influence or pressure was exerted on, or31any unfair tactics were used against, the consumer or a32person acting on behalf of the consumer by the supplier or a33

person acting on behalf of the supplier in relation to the34supply or possible supply of the goods or services; and35


49/401



43

(e) the amount for which, and the circumstances under which,1the consumer could have acquired identical or equivalent2goods or services from a person other than the supplier.3

(3) A person is not to be taken for the purposes of this section to4engage in unconscionable conduct in connection with the supply or5possible supply of goods or services to a person by reason only that6the person institutes legal proceedings in relation to that supply or7possible supply or refers a dispute or claim in relation to that8supply or possible supply to arbitration.9

(4) For the purpose of determining whether a person has contravened10subsection (1) in connection with the supply or possible supply of11goods or services to another person:12

(a) the court must not have regard to any circumstances that13were not reasonably foreseeable at the time of the alleged14

contravention; and15(b) the court may have regard to conduct engaged in, or16

circumstances existing, before the commencement of this17section.18

(5) A reference in this section to goods or services is a reference to19goods or services of a kind ordinarily acquired for personal,20domestic or household use or consumption.21

(6) A reference in this section to the supply or possible supply of22goods does not include a reference to the supply or possible supply23of goods for the purpose of re-supply or for the purpose of using24

them up or transforming them in trade or commerce.25

(7) Section 4 applies for the purposes of this section in the same way26as it applies for the purposes of Division 1 of Part 3-1.27

22 Unconscionable conduct in business transactions28

(1) A person must not, in trade or commerce, in connection with:29

(a) the supply or possible supply of goods or services to another30person (other than a listed public company); or31

(b) the acquisition or possible acquisition of goods or services32from another person (other than a listed public company);33

engage in conduct that is, in all the circumstances, unconscionable.34



50/401



2010

(2) Without in any way limiting the matters to which the court may1have regard for the purpose of determining whether a person (the2

supplier) has contravened subsection (1) in connection with the3supply or possible supply of goods or services to another person4

(thebusiness consumer), the court may have regard to:5

(a) the relative strengths of the bargaining positions of the6supplier and the business consumer; and7

(b) whether, as a result of conduct engaged in by the supplier, the8business consumer was required to comply with conditions9that were not reasonably necessary for the protection of the10legitimate interests of the supplier; and11

(c) whether the business consumer was able to understand any12documents relating to the supply or possible supply of the13goods or services; and14

(d) whether any undue influence or pressure was exerted on, or15

any unfair tactics were used against, the business consumer16or a person acting on behalf of the business consumer by the17supplier or a person acting on behalf of the supplier in18relation to the supply or possible supply of the goods or19services; and20

(e) the amount for which, and the circumstances under which,21the business consumer could have acquired identical or22equivalent goods or services from a person other than the23supplier; and24

(f) the extent to which the suppliers conduct towards the25business consumer was consistent with the suppliers conduct26

in similar transactions between the supplier and other like27 business consumers; and28

(g) the requirements of any applicable industry code; and29

(h) the requirements of any other industry code, if the business30consumer acted on the reasonable belief that the supplier31would comply with that code; and32

(i) the extent to which the supplier unreasonably failed to33disclose to the business consumer:34

(i) any intended conduct of the supplier that might affect35the interests of the business consumer; and36

(ii) any risks to the business consumer arising from the37

suppliers intended conduct (being risks that the38 supplier should have foreseen would not be apparent to39the business consumer); and40


51/401



45

(j) if there is a contract between the supplier and the business1consumer for the supply of the goods or services:2

(i) the extent to which the supplier was wil

Date post:	01-Jun-2018
Category:	Documents
Upload:	lance-russo
View:	215 times
Download:	0 times

2010 Trade Practices Act

Documents