TRADE PRACTICES AMENDMENT (AUSTRALIAN CONSUMER LAW) BILL (NO. 2) 2010

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

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--The Australian Consumer Law

Trade Practices Act 1974

Schedule 2--Application of the Australian Consumer Law

256

Trade Practices Act 1974

256

Schedule 3--Amendment of the Corporations legislation

330

Australian Securities and Investments Commission Act 2001

330

Corporations Act 2001

342

Schedule 4--Enforcement of industry codes

344

Trade Practices Act 1974

344

Schedule 5--Other amendments of the Trade Practices Act

1974

351

Schedule 6--Amendment of other Acts to change references to

the Trade Practices Act 1974

367

Part 1--Bulk amendments

367

Administrative Decisions (Judicial Review) Act 1977

367

Agricultural and Veterinary Chemicals Code Act 1994

367

Airports Act 1996

367

Air Services Act 1995

368

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

368

Australian Communications and Media Authority Act 2005

369

Australian Energy Market Act 2004

369

Australian Maritime Safety Authority Act 1990

369

Australian Postal Corporation Act 1989

369

Banking Act 1959

370

Broadcasting Services Act 1992

370

Crimes Act 1914

371

Customs Act 1901

371

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

Do Not Call Register Act 2006

371

Environment Protection and Biodiversity Conservation Act 1999

371

Evidence and Procedure (New Zealand) Act 1994

371

Federal Court of Australia Act 1976

371

Financial Sector (Business Transfer and Group Restructure) Act 1999

372

Health Insurance Commission (Reform and Separation of Functions)

Act 1997

372

Insurance Act 1973

372

Jurisdiction of Courts (Cross-vesting) Act 1987

372

Life Insurance Act 1995

373

Liquid Fuel Emergency Act 1984

373

Medibank Private Sale Act 2006

373

Northern Territory National Emergency Response Act 2007

373

Occupational Health and Safety Act 1991

373

Occupational Health and Safety (Maritime Industry) Act 1993

373

Offshore Petroleum and Greenhouse Gas Storage Act 2006

374

Patents Act 1990

374

Payment Systems (Regulation) Act 1998

374

Private Health Insurance Act 2007

374

Proceeds of Crime Act 2002

374

Protection of the Sea (Powers of Intervention) Act 1981

374

Radiocommunications Act 1992

374

Social Security (Administration) Act 1999

375

Spam Act 2003

375

Sydney Airport Demand Management Act 1997

375

Telecommunications Act 1997

376

Telecommunications (Consumer Protection and Service Standards)

Act 1999

378

Telecommunications (Interception and Access) Act 1979

378

Trade Marks Act 1995

378

Trans-Tasman Proceedings Act 2010

378

Water Act 2007

378

Wheat Export Marketing Act 2008

378

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

2010

Part 2--Other amendments

379

Administrative Decisions (Judicial Review) Act 1977

379

Agricultural and Veterinary Chemicals Act 1994

379

Agricultural and Veterinary Chemicals (Administration) Act 1992

379

Agricultural and Veterinary Chemicals Code Act 1994

379

Airports Act 1996

379

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

380

Banking Act 1959

380

Carriage of Goods by Sea Act 1991

380

Federal Court of Australia Act 1976

381

Food Standards Australia New Zealand Act 1991

381

Insurance Act 1973

382

Jurisdiction of Courts (Cross-vesting) Act 1987

382

Motor Vehicle Standards Act 1989

382

National Transmission Network Sale Act 1998

383

Olympic Insignia Protection Act 1987

383

Radiocommunications Act 1992

385

Wheat Export Marketing Act 2008

385

Schedule 7--Transitional matters

386

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

A Bill for an Act to amend the Trade Practices Act

1974 and the Australian Securities and Investments

Commission Act 2001, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Trade Practices Amendment

(Australian Consumer Law) Act (No. 2) 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1 to

The later of:

(a) the start of 1 January 2011; and

(b) immediately after the commencement of

Schedule 1 to the Trade Practices

Amendment (Australian Consumer Law)

Act (No. 1) 2010.

However, the provision(s) do not commence

at 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) covered

by table item 2; and

(b) immediately after the commencement of

Schedule 1 to the Broadcasting

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) covered

by table item 2; and

(b) immediately after the commencement of

section 3 of the Trans-Tasman

Proceedings Act 2010.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

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

7. Schedule 6,

items 143 to 191

At the same time as the provision(s) covered

by 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 originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 The Australian Consumer Law

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Schedule 1--The Australian Consumer Law

Trade Practices Act 1974

1 Schedule 2

Repeal the Schedule, substitute:

Schedule 2--The Australian Consumer Law

Note: See

Part

XI.

Chapter 1--Introduction

1 Application of this Schedule

2 Definitions

3 Meaning of consumer

4 Misleading representations with respect to future matters

5 When donations are treated as supplies or acquisitions

6 Related bodies corporate

7 Meaning of manufacturer

8 Goods affixed to land or premises

9 Meaning of safety defect in relation to goods

10 Asserting a right to payment

11 References to acquisition, supply and re-supply

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

and buildings

13 Loss or damage to include injury

14 Meaning of continuing credit contract

15 Contraventions of this Schedule

16 Severability

17 References to provisions in this Schedule

Chapter 2--General protections

Part 2-1--Misleading or deceptive conduct

18 Misleading or deceptive conduct

19 Application of this Part to information providers

Part 2-2--Unconscionable conduct

20 Unconscionable conduct within the meaning of the unwritten law

21 Unconscionable conduct

22 Unconscionable conduct in business transactions

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Part 2-3--Unfair contract terms

23 Unfair terms of consumer contracts

24 Meaning of unfair

25 Examples of unfair terms

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

are unaffected

27 Standard form contracts

28 Contracts to which this Part does not apply

Chapter 3--Specific protections

Part 3-1--Unfair practices

Division 1--False or misleading representations etc.

29 False or misleading representations about goods or services

30 False or misleading representations about sale etc. of land

31 Misleading conduct relating to employment

32 Offering rebates, gifts, prizes etc.

33 Misleading conduct as to the nature etc. of goods

34 Misleading conduct as to the nature etc. of services

35 Bait advertising

36 Wrongly accepting payment

37 Misleading representations about certain business activities

38 Application of provisions of this Division to information providers

Division 2--Unsolicited supplies

39 Unsolicited cards etc.

40 Assertion of right to payment for unsolicited goods or services

41 Liability etc. of recipient for unsolicited goods

42 Liability of recipient for unsolicited services

43 Assertion of right to payment for unauthorised entries or

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

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;

(b) has induced, whether by threats or promises or otherwise, the

contravention; or

concerned in, or party to, the contravention; or

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(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

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.

listed public company has the meaning given by section 995-1(1)

the Income Tax Assessment Act 1997.

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;

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

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(b) by applying an amount in satisfaction or reduction of an

amount owed to the person by the consumer;

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

packed.

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.

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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 consumer 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).

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

(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.

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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

(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).

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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, includes the

following:

(a) attempt to enforce the term;

(b) attempt to exercise a right conferred, or purportedly

conferred, by the term;

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

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

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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;

(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).

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

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.

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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--see

section 24(3).

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

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unfair, in relation to a term of a consumer 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 services supplied to a person 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).

3 Meaning of consumer

(1) A person is taken to have acquired particular goods as a consumer

if, and only if:

(a) the goods were of a kind ordinarily acquired for personal,

domestic or household use or consumption; or

(b) 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 purpose of re-supply; 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;

(ii) in the course of repairing or treating other goods or

fixtures on land.

(3) A person is taken to have acquired particular services as a

consumer if, and only if, the services were of a kind ordinarily

acquired for personal, domestic or household use or consumption.

(4) 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 to be presumed, unless the contrary is established,

The Australian Consumer Law Schedule 1

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

that the person was a consumer in relation to those goods or

services.

(5) 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

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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.

6 Related bodies corporate

(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.

7 Meaning of manufacturer

(1)

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;

name by which the person carries on business or a brand or

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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.

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

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(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

(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

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:

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(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

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

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(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

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

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(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

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

16 Severability

(1) If the making of a contract after the commencement of this section

contravenes this Schedule because the contract includes a

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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.

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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

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supplies goods or services of the same kind as the publicised

goods or services; or

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

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)

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;

the Broadcasting Services (Transitional Provisions and

Consequential Amendments) Act 1992;

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

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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 or 22.

21 Unconscionable conduct

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

supply or possible supply of goods or services to another person,

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

Note:

A pecuniary penalty may be imposed for a contravention of this

subsection.

(2) Without in any way limiting the matters to which the court may

have regard for the purpose of determining whether a person (the

supplier) has contravened subsection (1) in connection with the

supply or possible supply of goods or services to another person

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

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

supplier and the consumer; and

(b) whether, as a result of conduct engaged in by the person, the

consumer was required to comply with conditions that were

not reasonably necessary for the protection of the legitimate

interests of the supplier; and

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 consumer or a

person acting on behalf of the consumer by the supplier or a

person acting on behalf of the supplier in relation to the

supply or possible supply of the goods or services; and

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(e) the amount for which, and the circumstances under which,

the consumer could have acquired identical or equivalent

goods or services from a person other than the supplier.

(3) A person is not to be taken for the purposes of this section to

engage in unconscionable conduct in connection with the supply or

possible supply of goods or services to a person by reason only that

the person institutes legal proceedings in relation to that supply or

possible supply or refers a dispute or claim in relation to that

supply or possible supply to arbitration.

(4) For the purpose of determining whether a person has contravened

subsection (1) in connection with the supply or possible supply of

goods or services to another person:

(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.

(5) A reference in this section to goods or services is a reference to

goods or services of a kind ordinarily acquired for personal,

domestic or household use or consumption.

(6) A reference in this section to the supply or possible supply of

goods does not include a reference to the supply or possible supply

of goods for the purpose of re-supply or for the purpose of using

them up or transforming them in trade or commerce.

(7) Section 4 applies for the purposes of this section in the same way

as it applies for the purposes of Division 1 of Part 3-1.

22 Unconscionable conduct in business transactions

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

(a) the supply or possible supply of goods or services to another

person (other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services

from another person (other than a listed public company);

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

Note:

A pecuniary penalty may be imposed for a contravention of this

subsection.

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(2) Without in any way limiting the matters to which the court may

have regard for the purpose of determining whether a person (the

supplier) has contravened subsection (1) in connection with the

supply or possible supply of goods or services to another person

(the business consumer), the court may have regard to:

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

supplier and the business consumer; and

(b) whether, as a result of conduct engaged in by the supplier, the

business consumer was required to comply with conditions

that were not reasonably necessary for the protection of the

legitimate interests of the supplier; and

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 business consumer

or a person acting on behalf of the business consumer by the

supplier or a person acting on behalf of the supplier in

relation to the supply or possible supply of the goods or

services; and

(e) the amount for which, and the circumstances under which,

the business consumer could have acquired identical or

equivalent goods or services from a person other than the

supplier; and

(f) the extent to which the supplier's conduct towards the

business consumer was consistent with the supplier's conduct

in similar transactions between the supplier and other like

business consumers; and

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

(h) the requirements of any other industry code, if the business

consumer 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 business consumer:

(i) any intended conduct of the supplier that might affect

the interests of the business consumer; and

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

supplier's intended conduct (being risks that the

supplier should have foreseen would not be apparent to

the business consumer); and

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(j) if there is a contract between the supplier and the business

consumer 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

business consumer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the business consumer in

complying with the terms and conditions of the contract;

and

(iv) any conduct that the supplier or the business consumer

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 business consumer for

the supply of the goods or services; and

(l) the extent to which the supplier and the business consumer

acted in good faith.

(3) Without in any way limiting the matters to which the court may

have regard for the purpose of determining whether a person (the

acquirer) has contravened subsection (1) in connection with the

acquisition or possible acquisition of goods or services from

another person (the small business supplier), the court may have

regard to:

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

acquirer and the small business supplier; and

(b) whether, as a result of conduct engaged in by the acquirer,

the small business supplier was required to comply with

conditions that were not reasonably necessary for the

protection of the legitimate interests of the acquirer; and

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 small business

supplier or a person acting on behalf of the small business

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

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(e) the amount for which, and the circumstances in which, the

small business 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 small

business supplier was consistent with the acquirer's conduct

in similar transactions between the acquirer and other like

small business suppliers; and

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

(h) the requirements of any other industry code, if the small

business 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 small business supplier:

(i) any intended conduct of the acquirer that might affect

the interests of the small business supplier; and

(ii) any risks to the small business supplier arising from the

acquirer's intended conduct (being risks that the

acquirer should have foreseen would not be apparent to

the small business supplier); and

(j) if there is a contract between the acquirer and the small

business 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 small

business supplier; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the acquirer and the small business

supplier in complying with the terms and conditions of

the contract; and

(iv) any conduct that the acquirer or the small business

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 small business supplier

for the acquisition of the goods or services; and

(l) the extent to which the acquirer and the small business

supplier acted in good faith.

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(4) A person is not to be taken for the purposes of this section to

engage in unconscionable conduct in connection with:

(a) the supply or possible supply of goods or services to another

person; or

(b) the acquisition or possible acquisition of goods or services

from another person;

by reason only that the first-mentioned person institutes legal

proceedings in relation to that supply, possible supply, acquisition

or possible acquisition or refers to arbitration a dispute or claim in

relation to that supply, possible supply, acquisition or possible

acquisition.

(5) 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 circumstances existing before

the commencement of this section but not to conduct engaged

in before that commencement.

(6) A reference in this section to the supply or possible supply of

goods or services is a reference to the supply or possible supply of

goods or services to a person whose acquisition or possible

acquisition of the goods or services is or would be for the purpose

of trade or commerce.

(7) A reference in this section to the acquisition or possible acquisition

of goods or services is a reference to the acquisition or possible

acquisition of goods or services by a person whose acquisition or

possible acquisition of the goods or services is or would be for the

purpose of trade or commerce.

(8) Section 4 applies for the purposes of this section in the same way

as it applies for the purposes of Division 1 of Part 3-1.

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Part 2-3--Unfair contract terms

23 Unfair terms of consumer contracts

(1) A term of a consumer 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)

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.

24 Meaning of unfair

(1) A term of a consumer 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

party if it were to be applied or relied on.

(2) In determining whether a term of a consumer 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

(d) readily available to any party affected by the term.

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(4) For the purposes of subsection (1)(b), a term of a consumer

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.

25 Examples of unfair terms

Without limiting section 24, the following are examples of the

kinds of terms of a consumer 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;

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;

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(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 etc.

are unaffected

(1) Section 23 does not apply to a term of a consumer 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

Commonwealth, a State or a Territory.

(2)

The

upfront price payable under a consumer 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.

27 Standard form contracts

(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;

or reject the terms of the contract (other than the terms

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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

(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.

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Chapter 3--Specific protections

Part 3-1--Unfair practices

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

(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

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(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:

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(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

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

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(b) the promotion by any means of the supply or use of goods or

services; or

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

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.

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(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:

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(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

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(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:

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(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

contract, arrangement or understanding with, a body

corporate that is related to a body corporate that supplies

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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

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.

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Division 2--Unsolicited supplies

39 Unsolicited cards etc.

(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)

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;

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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)

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

supplying 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

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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

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.

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(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

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 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 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

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(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

the Commonwealth, a State or a Territory; or

(d) a person specified in the regulations.

(4)

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

(i) the name and address of the person publishing the entry

or advertisement; and

(ii) particulars of the entry or advertisement; and

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(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.

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Division 3--Pyramid schemes

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)

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)

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;

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(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)

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

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;

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

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(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.

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Division 4--Pricing

47 Multiple pricing

(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)

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

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

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(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

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

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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.

(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

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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 (other than a charge that is

payable at the option of the other person);

(b) the amount which reflects any tax, duty, fee, levy or charge

imposed on the person making the representation in relation

to the supply;

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: A person advertises lounge suites for sale. Persons have the option of

paying for fabric protection. The fabric protection charge does not

form part of the single price because of the exception in paragraph (a).

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.

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Division 5--Other unfair practices

49 Referral selling

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.

50 Harassment and coercion

(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

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.

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Part 3-2--Consumer transactions

Division 1--Consumer guarantees

Subdivision A--Guarantees relating to the supply of goods

51 Guarantee as to title

(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:

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(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:

(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

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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

(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

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

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(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)

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:

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(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:

model in quality, state or condition; and

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(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.

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(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.

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(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.

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

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.

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;

(b) the exercise of a right conferred by such a provision; or

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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.

Subdivision D--Miscellaneous

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)

telecommunications service is a service for carrying

communications by means of guided or unguided electromagnetic

energy or both.

66 Display notices

(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.

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(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;

consumers;

(d) specify requirements as to the form of the notice.

67 Conflict of laws

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).

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Division 2--Unsolicited consumer agreements

Subdivision A--Introduction

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)

telephone;

whether or not they are the only negotiations that precede the

making of the agreement; and

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;

(ii) if it is ascertainable at that time--is more than $100 or

such other amount prescribed by the regulations.

(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.

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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.

71 Meaning of dealer

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.

72 Meaning of negotiation

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).

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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

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

identity as is prescribed by the regulations.

Note:

A pecuniary penalty may be imposed for a contravention of this

section.

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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

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(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

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;

(b) by post; or

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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;

(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

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(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.

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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

of 10 business days starting at the start of the first business

day after the day on which the agreement was made;

(b) if the agreement was negotiated by telephone--the period of

10 business days starting at the start of the first business day

after the day on which the consumer was given the agreement

document relating to the agreement;

to the agreement:

(i) section 73 (permitted hours for negotiating an

unsolicited consumer agreement);

(ii) section 74 (disclosing purpose and identity);

(iii) section 75 (ceasing to negotiate on request);

the period of 3 months starting at the start of the first day

after the day on which the agreement was made or, if the

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agreement was negotiated by telephone, the agreement

document was given;

(d) if one or more of the following were contravened in relation

to the agreement:

(i) section 76 (informing consumer of termination period);

(ii) a provision of Subdivision C (requirements for

unsolicited consumer agreements);

(iii) section 86 (prohibition on supplies for 10 business

days);

the period of 6 months starting at the start of the first day

after the day on which the agreement was made or, if the

agreement was negotiated by telephone, the agreement

document was given;

(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

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).

83 Effect of termination

(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)

related contract or instrument, in relation to an unsolicited

consumer agreement, is:

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(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

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

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(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 the period of 10 business days starting:

(i) if the agreement was not negotiated by telephone--at

the start of the first business day after the day on which

the agreement was made; or

(ii) if the agreement was negotiated by telephone--at the

start of the first 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

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 the period of 10

business days starting:

(i) if the agreement was not negotiated by telephone--at

the start of the first business day after the day on which

the agreement was made; or

(ii) if the agreement was negotiated by telephone--at the

start of the first business day after the day on which the

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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. for 10 business days

(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

connection with those goods or services;

during the period of 10 business days starting:

(d) if the agreement was not negotiated by telephone--at the

start of the first business day after the day on which the

agreement was made; or

(e) if the agreement was negotiated by telephone--at the start of

the first 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

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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.

(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.

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Subdivision E--Miscellaneous

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

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.

90 Waiver of rights

(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.

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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

regulations.

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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

managed investment products.

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Division 3--Lay-by agreements

96 Lay-by agreements must be in writing etc.

(1) A supplier of consumer 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 consumer goods who is a party to a lay-by agreement

must ensure that the agreement is transparent.

(3)

lay-by agreement is an agreement between a supplier of

consumer goods and a consumer for the supply, in trade or

commerce, of the consumer 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 consumer 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 consumer goods to which the

agreement relates are delivered to the consumer under the

agreement.

(2) A supplier of consumer 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.

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Note:

A pecuniary penalty may be imposed for a contravention of this

subsection.

(3) A supplier of consumer 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 consumer 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

longer available.

Note:

A pecuniary penalty may be imposed for a contravention of this

section.

99 Effect of termination

(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.

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Division 4--Miscellaneous

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)

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

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;

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101

(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

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.

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(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)

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

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

consumer goods.

(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.

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103

Part 3-3--Safety of consumer goods and product

related services

Division 1--Safety standards

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;

20 <

Commonwealth of Australia Bills

TRADE PRACTICES AMENDMENT (AUSTRALIAN CONSUMER LAW) BILL (NO. 2) 2010