Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010
Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................3
Schedule 1—The Australian Consumer Law 4 Trade Practices Act 1974 4
Schedule 3—Amendment of the Corporations legislation 337 Australian Securities and Investments Commission Act 2001 337 Corporations Act 2001 349
Schedule 5—Other amendments of the Trade Practices Act 1974 358 Schedule 6—Amendment of other Acts to change references to the Trade Practices Act 1974 374 Part 1—Bulk amendments 374 Administrative Decisions (Judicial Review) Act 1977 374 Agricultural and Veterinary Chemicals Code Act 1994 374 Airports Act 1996 374 Air Services Act 1995 375 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 375 Australian Communications and Media Authority Act 2005 376 Australian Energy Market Act 2004 376 Australian Maritime Safety Authority Act 1990 376 Australian Postal Corporation Act 1989 376 Banking Act 1959 377 Broadcasting Services Act 1992 377 Crimes Act 1914 378 Customs Act 1901 378
Do Not Call Register Act 2006 378 Environment Protection and Biodiversity Conservation Act 1999 378 Evidence and Procedure (New Zealand) Act 1994 378 Federal Court of Australia Act 1976 378 Financial Sector (Business Transfer and Group Restructure) Act 1999 379 Health Insurance Commission (Reform and Separation of Functions) Act 1997 379 Insurance Act 1973 379 Jurisdiction of Courts (Cross-vesting) Act 1987 379 Life Insurance Act 1995 380 Liquid Fuel Emergency Act 1984 380 Medibank Private Sale Act 2006 380 Northern Territory National Emergency Response Act 2007 380 Occupational Health and Safety Act 1991 380 Occupational Health and Safety (Maritime Industry) Act 1993 380 Offshore Petroleum and Greenhouse Gas Storage Act 2006 381 Patents Act 1990 381 Payment Systems (Regulation) Act 1998 381 Private Health Insurance Act 2007 381 Proceeds of Crime Act 2002 381 Protection of the Sea (Powers of Intervention) Act 1981 381 Radiocommunications Act 1992 381 Social Security (Administration) Act 1999 382 Spam Act 2003 382 Sydney Airport Demand Management Act 1997 382 Telecommunications Act 1997 383 Telecommunications (Consumer Protection and Service Standards) Act 1999 385 Telecommunications (Interception and Access) Act 1979 385 Trade Marks Act 1995 385 Trans-Tasman Proceedings Act 2010 385 Water Act 2007 385 Wheat Export Marketing Act 2008 385
Part 2—Other amendments 386 Administrative Decisions (Judicial Review) Act 1977 386 Agricultural and Veterinary Chemicals Act 1994 386 Agricultural and Veterinary Chemicals (Administration) Act 1992 386 Agricultural and Veterinary Chemicals Code Act 1994 386 Airports Act 1996 387 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 387 Banking Act 1959 387 Carriage of Goods by Sea Act 1991 388 Federal Court of Australia Act 1976 388 Food Standards Australia New Zealand Act 1991 388 Insurance Act 1973 389 Jurisdiction of Courts (Cross-vesting) Act 1987 389 Motor Vehicle Standards Act 1989 389 National Transmission Network Sale Act 1998 390 Olympic Insignia Protection Act 1987 391 Radiocommunications Act 1992 392 Wheat Export Marketing Act 2008 392 Schedule 7—Transitional matters 393
An Act to amend the Trade Practices Act 1974 and the Australian Securities and Investments Commission Act 2001, and for other purposes
[Assented to 13 July 2010]
This Act may be cited as the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.
(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.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
The later of: 1 January 2011
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.
The later of: 1 January 2011
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.
5. Schedule 6, At the same time as the provision(s) covered 1 January 2011 items 48 to 141 by table item 2.
Commencement information
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
6. Schedule 6, | The later of: | |
item 142 | (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. |
7. Schedule 6, | At the same time as the provision(s) covered | 1 January 2011 |
items 143 to 191 | by table item 2. | |
8. Schedule 7 | At the same time as the provision(s) covered | 1 January 2011 |
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.
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.
Repeal the Schedule, substitute:
Note: See Part XI.
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
18 Misleading or deceptive conduct 19 Application of this Part to information providers
20 Unconscionable conduct within the meaning of the unwritten law 21 Unconscionable conduct
22 Unconscionable conduct in business transactions
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
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
advertisements
44 Participation in pyramid schemes 45 Meaning of pyramid scheme 46 Marketing schemes as pyramid schemes
Division 4—Pricing
47 Multiple pricing 48 Single price to be specified in certain circumstances
Division 5—Other unfair practices
49 Referral selling 50 Harassment and coercion
Part 3-2—Consumer transactions Division 1—Consumer guarantees Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title 52 Guarantee as to undisturbed possession 53 Guarantee as to undisclosed securities etc. 54 Guarantee as to acceptable quality 55 Guarantee as to fitness for any disclosed purpose etc. 56 Guarantee relating to the supply of goods by description 57 Guarantees relating to the supply of goods by sample or
demonstration model 58 Guarantee as to repairs and spare parts 59 Guarantee as to express warranties
60 Guarantee as to due care and skill 61 Guarantees as to fitness for a particular purpose etc. 62 Guarantee as to reasonable time for supply 63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications 66 Display notices 67 Conflict of laws 68 Convention on Contracts for the International Sale of Goods
Division 2—Unsolicited consumer agreements Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement 70 Presumption that agreements are unsolicited consumer agreements 71 Meaning of dealer 72 Meaning of negotiation
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited consumer agreement 74 Disclosing purpose and identity 75 Ceasing to negotiate on request 76 Informing person of termination period etc. 77 Liability of suppliers for contraventions by dealers
Subdivision C—Requirements for unsolicited consumer agreements etc.
78 Requirement to give document to the consumer 79 Requirements for all unsolicited consumer agreements etc. 80 Additional requirements for unsolicited consumer agreements not
negotiated by telephone 81 Requirements for amendments of unsolicited consumer agreements
Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during the termination period 83 Effect of termination 84 Obligations of suppliers on termination 85 Obligations and rights of consumers on termination 86 Prohibition on supplies etc. for 10 business days 87 Repayment of payments received after termination 88 Prohibition on recovering amounts after termination
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements void 90 Waiver of rights 91 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc. 92 Application of this Division to supplies to third parties 93 Effect of contravening this Division 94 Regulations may limit the application of this Division 95 Application of this Division to certain conduct covered by the
Corporations Act
Division 3—Lay-by agreements
96 Lay-by agreements must be in writing etc. 97 Termination of lay-by agreements by consumers 98 Termination of lay-by agreements by suppliers 99 Effect of termination
Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc. 101 Consumer may request an itemised bill 102 Prescribed requirements for warranties against defects 103 Repairers must comply with prescribed requirements
104 Making safety standards for consumer goods and product related services 105 Declaring safety standards for consumer goods and product related services
106 Supplying etc. consumer goods that do not comply with safety standards 107 Supplying etc. product related services that do not comply with safety standards 108 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related services Subdivision A—Interim bans
109 Interim bans on consumer goods or product related services that will or may cause injury to any person etc. 110 Places in which interim bans apply 111 Ban period for interim bans 112 Interaction of multiple interim bans 113 Revocation of interim bans
114 Permanent bans on consumer goods or product related services 115 Places in which permanent bans apply 116 When permanent bans come into force 117 Revocation of permanent bans
Subdivision C—Compliance with interim bans and permanent bans
118 Supplying etc. consumer goods covered by a ban 119 Supplying etc. product related services covered by a ban
Subdivision D—Temporary exemption from mutual recognition principles
120 Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997 121 Temporary exemption under the Mutual Recognition Act 1992
Division 3—Recall of consumer goods Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods 123 Contents of a recall notice 124 Obligations of a supplier in relation to a recall notice 125 Notification by persons who supply consumer goods outside
Australia if there is compulsory recall 126 Interaction of multiple recall notices 127 Compliance with recall notices
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of consumer goods
129 Safety warning notices about consumer goods and product related services 130 Announcement of the results of an investigation etc.
Division 5—Consumer goods, or product related services, associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with the death or serious injury or illness of any person 132 Suppliers to report product related services associated with the death or serious injury or illness of any person
Division 6—Miscellaneous
133 Liability under a contract of insurance
134 Making information standards for goods and services 135 Declaring information standards for goods and services 136 Supplying etc. goods that do not comply with information
standards 137 Supplying etc. services that do not comply with information standards
Part 3-5—Liability of manufacturers for goods with safety defects Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual 139 Liability for loss or damage suffered by a person other than an injured individual 140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged 141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged 142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions 144 Liability joint and several 145 Survival of actions 146 No defective goods action where workers’ compensation law etc.
applies 147 Unidentified manufacturer 148 Commonwealth liability for goods that are defective only
because of compliance with Commonwealth mandatory standard 149 Representative actions by the regulator
150 Application of all or any provisions of this Part etc. not to be excluded or modified
151 False or misleading representations about goods or services 152 False or misleading representations about sale etc. of land 153 Misleading conduct relating to employment 154 Offering rebates, gifts, prizes etc. 155 Misleading conduct as to the nature etc. of goods 156 Misleading conduct as to the nature etc. of services 157 Bait advertising 158 Wrongly accepting payment 159 Misleading representations about certain business activities 160 Application of provisions of this Division to information
providers
Division 2—Unsolicited supplies
161 Unsolicited cards etc. 162 Assertion of right to payment for unsolicited goods or services 163 Assertion of right to payment for unauthorised entries or
advertisements
164 Participation in pyramid schemes
Division 4—Pricing
165 Multiple pricing 166 Single price to be specified in certain circumstances
Division 5—Other unfair practices
167 Referral selling 168 Harassment and coercion
169 Display notices
Division 2—Unsolicited consumer agreements Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited consumer agreement 171 Disclosing purpose and identity 172 Ceasing to negotiate on request
173 Informing person of termination period etc.
Subdivision B—Requirements for unsolicited consumer agreements etc.
174 Requirement to give document to the consumer 175 Requirements for all unsolicited consumer agreements etc. 176 Additional requirements for unsolicited consumer agreements not
negotiated by telephone 177 Requirements for amendments of unsolicited consumer agreements
178 Obligations of suppliers on termination 179 Prohibition on supplies for 10 business days 180 Repayment of payments received after termination 181 Prohibition on recovering amounts after termination
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements void 183 Waiver of rights 184 Application of this Division to persons to whom rights of
consumers and suppliers are assigned etc. 185 Application of this Division to supplies to third parties 186 Regulations may limit the application of this Division 187 Application of this Division to certain conduct covered by the
Corporations Act
Division 3—Lay-by agreements
188 Lay-by agreements must be in writing etc. 189 Termination charges 190 Termination of lay-by agreements by suppliers 191 Refund of amounts
Division 4—Miscellaneous
192 Prescribed requirements for warranties against defects 193 Repairers must comply with prescribed requirements
194 Supplying etc. consumer goods that do not comply with safety standards 195 Supplying etc. product related services that do not comply with safety standards 196 Requirement to nominate a safety standard
197 Supplying etc. consumer goods covered by a ban 198 Supplying etc. product related services covered by a ban
Division 3—Recall of consumer goods
199 Compliance with recall orders 200 Notification by persons who supply consumer goods outside Australia if there is compulsory recall 201 Notification requirements for a voluntary recall of consumer goods
Division 4—Consumer goods, or product related services, associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person
203 Supplying etc. goods that do not comply with information standards 204 Supplying etc. services that do not comply with information standards
205 Compliance with substantiation notices 206 False or misleading information etc.
207 Reasonable mistake of fact 208 Act or default of another person etc. 209 Publication of advertisements in the ordinary course of business 210 Supplying goods acquired for the purpose of re-supply 211 Supplying services acquired for the purpose of re-supply
212 Prosecutions to be commenced within 3 years 213 Preference must be given to compensation for victims 214 Penalties for contraventions of the same nature etc. 215 Penalties for previous contraventions of the same nature etc. 216 Granting of injunctions etc. 217 Criminal proceedings not to be brought for contraventions of
Chapter 2 or 3
218 Regulator may accept undertakings
Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc. 220 Extending periods for complying with substantiation notices 221 Compliance with substantiation notices 222 False or misleading information etc.
Division 3—Public warning notices
223 Regulator may issue a public warning notice
224 Pecuniary penalties 225 Pecuniary penalties and offences 226 Defence 227 Preference must be given to compensation for victims 228 Civil action for recovery of pecuniary penalties 229 Indemnification of officers 230 Certain indemnities not authorised and certain documents void 231 Application of section 229 to a person other than a body
corporate
Division 2—Injunctions
232 Injunctions 233 Consent injunctions 234 Interim injunctions 235 Variation and discharge of injunctions
Division 3—Damages
236 Actions for damages
Division 4—Compensation orders etc. for injured persons and orders for non-party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured person or the regulator 238 Compensation orders etc. arising out of other proceedings
239 Orders to redress etc. loss or damage suffered by non-party consumers
240 Determining whether to make a redress order etc. for non-party consumers 241 When a non-party consumer is bound by a redress order etc.
Subdivision C—Miscellaneous
242 Applications for orders 243 Kinds of orders that may be made 244 Power of a court to make orders 245 Interaction with other provisions
Division 5—Other remedies
246 Non-punitive orders 247 Adverse publicity orders 248 Order disqualifying a person from managing corporations 249 Privilege against exposure to penalty or forfeiture—
disqualification from managing corporations 250 Declarations relating to consumer contracts
Division 6—Defences
251 Publication of advertisement in the ordinary course of business 252 Supplying consumer goods for the purpose of re-supply 253 Supplying product related services for the purpose of re-supply
254 Overview 255 Country of origin representations do not contravene certain
provisions 256 Cost of producing or manufacturing goods 257 Rules for determining the percentage of costs of production or
manufacture attributable to a country 258 Proceedings relating to false, misleading or deceptive conduct or representations
259 Action against suppliers of goods 260 When a failure to comply with a guarantee is a major failure 261 How suppliers may remedy a failure to comply with a guarantee 262 When consumers are not entitled to reject goods 263 Consequences of rejecting goods 264 Replaced goods 265 Termination of contracts for the supply of services that are
connected with rejected goods 266 Rights of gift recipients
267 Action against suppliers of services 268 When a failure to comply with a guarantee is a major failure 269 Termination of contracts for the supply of services 270 Termination of contracts for the supply of goods that are
connected with terminated services
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against manufacturers of goods
273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers 275 Limitation of liability etc. 276 This Part not to be excluded etc. by contract 277 Representative actions by the regulator
Part 5-5—Liability of suppliers and credit providers Division 1—Linked credit contracts 278 Liability of suppliers and linked credit providers relating to linked credit contracts 279 Action by consumer to recover amount of loss or damage 280 Cases where a linked credit provider is not liable 281 Amount of liability of linked credit providers 282 Counter-claims and offsets 283 Enforcement of judgments etc. 284 Award of interest to consumers 285 Liability of suppliers to linked credit providers, and of linked credit providers to suppliers 286 Joint liability proceedings and recovery under section 135 of the National Credit Code
Division 2—Non-linked credit contracts
287 Liability of suppliers and credit providers relating to non-linked credit contracts
This Schedule applies to the extent provided by:
(1) In this Schedule:
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. acceptable quality: see sections 54(2) to (7). ACN has the meaning given by section 9 of the Corporations Act
2001. acquire includes:
adverse publicity order: see section 247(2). affected person, in relation to goods, means:
agreement document: see section 78(2). applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in section 140 of the Competition and Consumer Act.
article includes a token, card or document. ASIC means the Australian Securities and Investments Commission.
authority, in relation to a State or a Territory (including an external Territory), means:
banker has the same meaning as in section 4(1) of the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for profit.
business day, in relation to an unsolicited consumer agreement, means a day that is not:
business or professional relationship includes a relationship between employer and employee, or a similar relationship.
call on, in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.
Commonwealth mandatory standard, in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.
Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means the Competition and Consumer Act 2010.
consumer: see section 3.
consumer contract: see section 23(3).
consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:
in the matter.
covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper. credit card: see section 39(5). credit provider means a person providing, or proposing to provide,
in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services. dealer: see section 71. debit card: see section 39(6).
declared term: see section 239(1)(a)(ii).
defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.
disclosed purpose: see section 55(2).
displayed price: see sections 47(2) to (5).
document includes:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
express warranty, in relation to goods, means an undertaking, assertion or representation:
the goods. financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.
financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001. free item includes a free service. goods includes:
System (Goods and Services Tax) Act 1999.
industry code has the meaning given by section 51ACA of the Competition and Consumer Act. information provider: see sections 19(5) and (6). information standard: see sections 134(1) and 135(1). inner container includes any container into which goods are
packed, other than a shipping or airline container, pallet or other similar article. interest, in relation to land, means:
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:
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:
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:
major failure: see sections 260 and 268.
mandatory standard, in relation to goods, means a standard:
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:
mixed supply: see section 3(11). National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.
negotiated by telephone: see section 78(3). negotiation: see section 72. new participant: see section 45(2). non-linked credit contract: see section 287(5). non-party consumer means:
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).
price, of goods or services, means:
prior negotiations or arrangements, in relation to the acquisition of goods by a consumer, means negotiations or arrangements:
product related service means a service for or relating to:
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.
rejection period: see section 262(2).
related, in relation to a body corporate: see section 6.
related contract or instrument: see section 83(2).
rely on, in relation to a term of a consumer contract, includes the following:
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:
services includes:
substantiation notice compliance period: see section 221(2). supply, when used as a verb, includes:
supplied and supplier have corresponding meanings. Note: Section 5 deals with when a donation is a supply.
supply of limited title: see section 51(2).
telecommunications service: see section 65(2).
termination charge: see section 97(2).
termination period, in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement.
tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.
tied loan contract means a loan contract entered into between a credit provider and a consumer where:
Australia; and includes any business or professional activity (whether or not carried on for profit).
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).
(2) In this Schedule:
Acquiring goods as a consumer
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a consumer if, and only if:
Amounts paid or payable for purchases
the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or
(c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.
Amounts paid or payable for other acquisitions
the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.
Amounts paid or payable for obtaining credit
services is increased because he or she so obtains credit; obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.
Presumption that persons are consumers
(10) If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
Mixed supplies
(11) A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.
Supplies to consumers
(12) In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.
(1) If:
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:
grounds for making the representation, unless evidence is adduced to the contrary.
because the person has reasonable grounds for making the representation.
(1) A manufacturer includes the following:
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:
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
10 Asserting a right to payment
(1) A person is taken to assert a right to payment from another person if the person:
(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:
12 Application of Schedule in relation to leases and licences of land and buildings
In this Schedule:
In this Schedule:
(1) If:
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.
Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:
In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.
Note: For rules relating to representations as to the country of origin of goods, see Part 5-3.
(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.
(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:
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 consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(1) A person must not, in trade or commerce, in connection with:
engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
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
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.
(4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
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.
is wholly or predominantly for personal, domestic or household use or consumption.
but does not include any other consideration that is contingent on the occurrence or non-occurrence of a particular event.
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:
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.
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:
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:
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:
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:
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.
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:
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:
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:
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:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
37 Misleading representations about certain business activities
(1) A person must not, in trade or commerce, make a representation that:
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:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
38 Application of provisions of this Division to information providers
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:
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:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(4) A person must not take any action that enables another person who has a debit card to use the card as a credit card, except in accordance with the other person’s written request.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(5) A credit card is an article that is one or more of the following:
and includes an article that may be used as an article referred to in paragraph (a), (b) or (c).
(6) A debit card is:
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:
requirements set out in the regulations; unless the person has reasonable cause to believe that there is a right to the payment or charge.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(4) In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person had reasonable cause to believe that there was a right to the payment or charge.
41 Liability etc. of recipient for unsolicited goods
accordance with subsection (5)—the period of one month starting on the day after the day on which the notice is given.
(5) A notice under subsection (4)(b):
42 Liability of recipient for unsolicited services
If a person, in trade or commerce, supplies unsolicited services to another person, the other person:
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:
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:
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.
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.
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) To participate in a pyramid scheme is:
45 Meaning of pyramid scheme
46 Marketing schemes as pyramid schemes
Division 4—Pricing
47 Multiple pricing
(1) A person must not, in trade or commerce, supply goods if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A displayed price for goods is a price for the goods, or any representation that may reasonably be inferred to be a representation of a price for the goods:
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 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.
48 Single price to be specified in certain circumstances
(1) A person must not, in trade or commerce, in connection with:
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.
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.
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.
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:
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:
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.
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
(1) If:
there is a guarantee that the consumer has the right to undisturbed possession of the goods.
there is a guarantee that the following persons will not disturb the consumer’s possession of the goods:
(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.
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:
there is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.
(4) This section does not apply if the supply is a supply by way of hire or lease.
54 Guarantee as to acceptable quality
would regard as acceptable having regard to the matters in subsection (3).
the goods are taken to be of acceptable quality.
(5) If:
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.
55 Guarantee as to fitness for any disclosed purpose etc.
(1) If:
disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
56 Guarantee relating to the supply of goods by description
57 Guarantees relating to the supply of goods by sample or demonstration model
58 Guarantee as to repairs and spare parts
(1) If:
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:
59 Guarantee as to express warranties
(1) If:
with any express warranty given or made by the manufacturer in relation to the goods.
(2) If:
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:
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
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.
62 Guarantee as to reasonable time for supply
If:
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:
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
64A Limitation of liability for failures to comply with guarantees
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
66 Display notices
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) Without limiting subsection (1), a determination under that subsection may do all or any of the following:
67 Conflict of laws
If:
the provisions of this Division apply in relation to the supply under the contract despite that term.
68 Convention on Contracts for the International Sale of Goods
The provisions of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, as amended and in force for Australia from time to time, prevail over the provisions of this Division to the extent of any inconsistency.
Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Division 2—Unsolicited consumer agreements
Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement
(1) An agreement is an unsolicited consumer agreement if:
whether or not they are the only negotiations that precede the making of the agreement; and
(1A) The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:
70 Presumption that agreements are unsolicited consumer agreements
71 Meaning of dealer
A dealer is a person who, in trade or commerce:
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
A negotiation, in relation to an agreement or a proposed agreement, includes any discussion or dealing directed towards the making of the agreement or proposed agreement (whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing).
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited consumer agreement
(1) A dealer must not call on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:
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:
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:
Note: A pecuniary penalty may be imposed for a contravention of this section.
75 Ceasing to negotiate on request
(1) A dealer who calls on a person at any premises for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose, must leave the premises immediately on the request of:
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:
76 Informing person of termination period etc.
A dealer must not make an unsolicited consumer agreement with a person unless:
Note: A pecuniary penalty may be imposed for a contravention of this section.
77 Liability of suppliers for contraventions by dealers
If:
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:
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:
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:
(iii) if the person has an email address—the person’s email address.
Note: A pecuniary penalty may be imposed for a contravention of this section.
81 Requirements for amendments of unsolicited consumer agreements
The supplier under an unsolicited consumer agreement must ensure that any amendments to the agreement are signed by both parties to the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this section.
Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during the termination period
(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
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:
(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.
83 Effect of termination
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:
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
the consumer is liable to pay compensation to the supplier for the damage to, or depreciation in the value of, the goods.
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:
connection with those goods or services; during the period of 10 business days starting:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) If the supplier supplies goods to the consumer in contravention of this section, the consumer has the same rights in relation to the goods as if the goods were unsolicited goods.
Note: Section 41 deals with unsolicited goods.
(3) If the supplier supplies services to the consumer in contravention of this section, the consumer has the same rights in relation to the services as if the services were unsolicited services.
Note: Section 42 deals with unsolicited services.
87 Repayment of payments received after termination
If an unsolicited consumer agreement is terminated in accordance with section 82, the supplier under the agreement must immediately refund to the consumer under the agreement any payment:
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:
the consumer; in relation to an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(1A) Subsection (1) does not apply to:
against the consumer; to enforce a liability under section 85(3), or a liability of a kind referred to in section 85(6).
(2) If an unsolicited consumer agreement is terminated in accordance with section 82, a person must not, for the purpose of recovering an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement:
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.
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements void
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
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
91 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.
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
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:
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.
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:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
97 Termination of lay-by agreements by consumers
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:
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.
Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc.
(1) If:
$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:
less than $75; the consumer may request a proof of transaction from the supplier as soon as practicable after the goods or services are so supplied.
(3) If a request is made under subsection (2), the supplier must give the proof of transaction within 7 days after the request is made.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(4) A proof of transaction for a supply of goods or services to a consumer is a document that:
Note: The following are examples of a proof of 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
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
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) A warranty against defects is a representation communicated to a consumer in connection with the supply of goods or services, at or about the time of supply, to the effect that a person will (unconditionally or on specified conditions):
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
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Division 1—Safety standards
104 Making safety standards for consumer goods and product related services
105 Declaring safety standards for consumer goods and product related services
those goods or services that is in force and that was made under section 104(1).
106 Supplying etc. consumer goods that do not comply with safety standards
(1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
if the goods had complied with the safety standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
107 Supplying etc. product related services that do not comply with safety standards
(1) A person must not, in trade or commerce, supply product related services of particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) If:
if the services had complied with the safety standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
108 Requirement to nominate a safety standard
If:
the supplier must, within the period specified in the request, give to the regulator a written notice specifying which of those sets of requirements the supplier intends to comply with as the supplier’s method of complying with the standard.
Division 2—Bans on consumer goods and product related services
Subdivision A—Interim bans
109 Interim bans on consumer goods or product related services that will or may cause injury to any person etc.
and that ban is still in force.
110 Places in which interim bans apply
111 Ban period for interim bans
Minister; the responsible Minister may, in writing, request the Commonwealth Minister to extend the extended ban period for the ban.
the Commonwealth Minister is taken to have decided to extend the extended ban period for the ban by a further period of 30 days.
(6) If:
Minister; the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.
112 Interaction of multiple interim bans
(1) If:
goods; the original ban, to the extent that it is a ban on the banned goods, ceases to be in force immediately before the Commonwealth ban comes into force.
(2) If:
banned services; the original ban, to the extent that it is a ban on the banned services, ceases to be in force immediately before the Commonwealth ban comes into force.
113 Revocation of interim bans
If a responsible Minister imposes an interim ban:
Subdivision B—Permanent bans
114 Permanent bans on consumer goods or product related services
115 Places in which permanent bans apply
A permanent ban applies in all States and Territories.
116 When permanent bans come into force
A permanent ban comes into force on the day specified by the Commonwealth Minister in the instrument imposing the ban.
117 Revocation of permanent bans
If the Commonwealth Minister imposes a permanent ban:
Subdivision C—Compliance with interim bans and permanent bans
118 Supplying etc. consumer goods covered by a ban
(1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
misuse) of the goods; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
119 Supplying etc. product related services covered by a ban
(1) A person must not, in trade or commerce, supply product related services of a particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) If:
the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
Subdivision D—Temporary exemption from mutual recognition principles
120 Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997
(1) If:
force; the goods are taken, for the purposes of section 46 of the Trans-Tasman Mutual Recognition Act 1997, to be goods of a kind that are declared, in the manner provided by section 46(2) of that Act, to be exempt from the operation of that Act.
(2) This section does not affect the application of section 46(4) of that Act in relation to such an exemption.
121 Temporary exemption under the Mutual Recognition Act 1992
(1) If:
Minister; the goods are taken, for the purposes of section 15 of the Mutual Recognition Act 1992, to be goods of a kind that are declared, in the manner provided by section 15(1) of that Act, to be goods to which that section applies.
(2) This section does not affect the application of section 15(3) of that Act in relation to such an exemption.
Division 3—Recall of consumer goods
Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods
123 Contents of a recall notice
the amount of a refund may be reduced by the supplier by an amount calculated in a manner specified in the notice that is attributable to the use which a person has had of the goods.
124 Obligations of a supplier in relation to a recall notice
the cost of the repair or replacement, including any necessary transportation costs, must be paid by the supplier.
125 Notification by persons who supply consumer goods outside Australia if there is compulsory recall
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
126 Interaction of multiple recall notices
If:
goods; the original recall notice, to the extent that it relates to the recalled goods, ceases to be in force immediately before the Commonwealth recall notice is issued.
127 Compliance with recall notices
(1) If:
one or more things; the person must comply with the notice.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) If a recall notice for consumer goods is in force, a person must not, in trade or commerce:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) If:
(iii) because, contrary to the recall notice, the other person was not provided with particular information in relation to the goods;
the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of the contravention.
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of consumer goods
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(7) A notice given under subsection (2) or (4) must:
Division 4—Safety warning notices
129 Safety warning notices about consumer goods and product related services
130 Announcement of the results of an investigation etc.
(1) If:
(iii) a notice under section 132J(1) or (2) of that Act; the responsible Minister who issued the notice under section 129(1) or (2) must, as soon as practicable after the
completion of the investigation, announce, by written notice published on the internet, the results of the investigation.
(2) The responsible Minister may announce in a notice published under subsection (1) of this section:
Division 5—Consumer goods, or product related services, associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with the death or serious injury or illness of any person
(1) If:
the supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
132 Suppliers to report product related services associated with the death or serious injury or illness of any person
(1) If:
the supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
132A Confidentiality of notices given under this Division
Division 6—Miscellaneous
133 Liability under a contract of insurance
If:
(iii) a person appointed or engaged under the Public Service Act 1999, or under a corresponding law of a State or a Territory; or
(iv) an officer of an authority of the Commonwealth or of a
State or Territory; the liability of the insurer under the contract is not affected only because the person gave the information.
134 Making information standards for goods and services
135 Declaring information standards for goods and services
for those goods or services that is in force and was made under section 134(1).
136 Supplying etc. goods that do not comply with information standards
(1) A person must not, in trade or commerce, supply goods of a particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of goods the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
if the supplier had complied with the information standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
137 Supplying etc. services that do not comply with information standards
(1) A person must not, in trade or commerce, supply services of a particular kind if:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) A person must not, in trade or commerce, offer for supply services the supply of which is prohibited by subsection (1).
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(3) If:
if the supplier had complied with the information standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
139 Liability for loss or damage suffered by a person other than an injured individual
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
In a defective goods action, it is a defence if it is established that:
(iii) the instructions or warnings given by the manufacturer of the other goods.
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
If 2 or more persons are liable under Division 1 for the same loss or damage, they are jointly and severally liable.
145 Survival of actions
A law of a State or a Territory about the survival of causes of action vested in persons who die applies to actions under Division 1.
146 No defective goods action where workers’ compensation law etc. applies
Division 1 does not apply to a loss or damage in respect of which an amount has been, or could be, recovered under a law of the Commonwealth, a State or a Territory that:
147 Unidentified manufacturer
(1) A person who:
the action would relate; may, by written notice given to a supplier, or each supplier, of the goods who is known to the person, request the supplier or suppliers to give the person particulars identifying the manufacturer of the goods, or the supplier of the goods to the supplier requested.
(2) If, 30 days after the person made the request or requests, the person still does not know who is the manufacturer of the goods, then each supplier:
not for the purposes of section 142(c)), to be the manufacturer of the goods.
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
Chapter 4—Offences
Part 4-1—Offences relating to unfair practices
Division 1—False or misleading representations etc.
151 False or misleading representations about goods or services
(1) A person commits an offence if the person, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
Penalty:
Note: For rules relating to representations as to the country of origin of goods, see Part 5-3.
152 False or misleading representations about sale etc. of land
(1) A person commits an offence if the person, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:
Penalty:
153 Misleading conduct relating to employment
(1) A person commits an offence if the person, in relation to employment that is to be, or may be, offered by the person or by another person, engages in conduct that is liable to mislead persons seeking the employment as to:
Penalty:
(2) Subsection (1) is an offence of strict liability.
154 Offering rebates, gifts, prizes etc.
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
155 Misleading conduct as to the nature etc. of goods
(1) A person commits an offence if the person, in trade or commerce, engages in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
Penalty:
(2) Subsection (1) is an offence of strict liability.
156 Misleading conduct as to the nature etc. of services
(1) A person commits an offence if the person, in trade or commerce, engages in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.
Penalty:
(2) Subsection (1) is an offence of strict liability.
157 Bait advertising
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
158 Wrongly accepting payment
(1) A person commits an offence if:
Penalty:
Penalty:
Penalty:
Penalty:
159 Misleading representations about certain business activities
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
160 Application of provisions of this Division to information providers
Division 2—Unsolicited supplies
161 Unsolicited cards etc.
(1) A person commits an offence if:
Penalty:
Penalty:
(4) A person commits an offence if the person takes any action that enables another person who has a debit card to use the card as a credit card.
Penalty:
162 Assertion of right to payment for unsolicited goods or services
(1) A person commits an offence if the person, in trade or commerce, asserts a right to payment from another person for unsolicited goods.
Penalty:
(2) A person commits an offence if the person, in trade or commerce, asserts a right to payment from another person for unsolicited services.
Penalty:
(3) A person commits an offence if the person, in trade or commerce, sends to another person an invoice or other document that:
Penalty:
163 Assertion of right to payment for unauthorised entries or advertisements
(1) A person commits an offence if the person asserts a right to payment from another person of a charge for placing, in a publication, an entry or advertisement relating to:
Penalty:
(2) A person commits an offence if the person sends to another person an invoice or other document that:
Penalty:
(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.
Division 3—Pyramid schemes
164 Participation in pyramid schemes
(1) A person commits an offence if the person participates in a pyramid scheme.
Penalty:
(2) A person commits an offence if the person induces another person to participate in a pyramid scheme.
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
Division 4—Pricing
165 Multiple pricing
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
166 Single price to be specified in certain circumstances
(1) A person commits an offence if the person, in trade or commerce, in connection with:
makes a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services.
Penalty:
specifies that minimum amount.
Division 5—Other unfair practices
167 Referral selling
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
168 Harassment and coercion
(1) A person commits an offence if:
(iii) the sale or grant, or the possible sale or grant, of an interest in land; or
(iv) the payment for an interest in land.
Penalty:
Part 4-2—Offences relating to consumer transactions
Division 1—Consumer guarantees
169 Display notices
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
Division 2—Unsolicited consumer agreements
Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited consumer agreement
(1) A dealer commits an offence if the dealer calls on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:
Penalty:
171 Disclosing purpose and identity
(1) A dealer commits an offence if the dealer:
(iii) provide to the person such information relating to the dealer’s identity as is prescribed by the regulations made for the purposes of section 74(c).
Penalty:
(2) Subsection (1) is an offence of strict liability.
172 Ceasing to negotiate on request
(1) A dealer commits an offence if the dealer:
Penalty:
(2) A dealer commits an offence if:
Penalty:
173 Informing person of termination period etc.
(1) A dealer commits an offence if the dealer makes an unsolicited consumer agreement with a person, and:
Penalty:
(2) If:
services to which the agreement relates; the supplier of the goods or services is also taken to have contravened subsection (1) in relation to the agreement.
(3) Subsection (1) is an offence of strict liability.
Subdivision B—Requirements for unsolicited consumer agreements etc.
174 Requirement to give document to the consumer
(1) The dealer who negotiated an unsolicited consumer agreement commits an offence if:
Penalty:
(2) The dealer who negotiated an unsolicited consumer agreement commits an offence if:
(iii) with the consumer’s consent—by electronic
communication; an agreement document evidencing the agreement.
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
175 Requirements for all unsolicited consumer agreements etc.
(1) The supplier under an unsolicited consumer agreement commits an offence if the agreement, or (if the agreement was negotiated by telephone) the agreement document, does not comply with the following requirements:
Penalty:
(2) Subsection (1) is an offence of strict liability.
176 Additional requirements for unsolicited consumer agreements not negotiated by telephone
(1) The supplier under an unsolicited consumer agreement that was not negotiated by telephone commits an offence if the agreement does not comply with the following requirements:
(iii) if the person has an email address—the person’s email address.
Penalty:
177 Requirements for amendments of unsolicited consumer agreements
(1) The supplier under an unsolicited consumer agreement commits an offence if any amendments to the agreement are not signed by both parties to the agreement.
Penalty:
(2) Subsection (1) is an offence of strict liability.
Subdivision C—Terminating unsolicited consumer agreements
178 Obligations of suppliers on termination
(1) The supplier under an unsolicited consumer agreement commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
179 Prohibition on supplies for 10 business days
(1) The supplier under an unsolicited consumer agreement commits an offence if:
Penalty:
(2) Strict liability applies to subsection (1)(a).
180 Repayment of payments received after termination
(1) The supplier under an unsolicited consumer agreement commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
181 Prohibition on recovering amounts after termination
(1) A person commits an offence if:
against the consumer; in relation to an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement.
Penalty:
(2) A person commits an offence if:
Penalty:
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements void
(1) The supplier under an unsolicited consumer agreement commits an offence if the agreement includes, or purports to include, a provision (however described) that is, or would be, void because of section 89(1).
Penalty:
(2) The supplier under an unsolicited consumer agreement commits an offence if the supplier attempts to enforce or rely on a provision (however described) that is void because of section 89(1).
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
183 Waiver of rights
(1) The supplier under an unsolicited consumer agreement commits an offence if the supplier induces the consumer to waive any right conferred by Division 2 of Part 3-2.
Penalty:
(2) Subsection (1) is an offence of strict liability.
184 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.
185 Application of this Division to supplies to third parties
This Division applies in relation to a contract for the supply of goods or services to a consumer (the original consumer) on the order of another person as if the other person were also the consumer.
186 Regulations may limit the application of this Division
This Division (other than section 170) does not apply, or provisions of this Division (other than section 170) that are specified in regulations made for the purposes of section 94 do not apply, to or in relation to:
187 Application of this Division to certain conduct covered by the Corporations Act
This Division does not apply in relation to conduct to which section 736, 992A or 992AA of the Corporations Act 2001 applies.
Note: Section 736 of the Corporations Act 2001 prohibits hawking of securities. Section 992A of that Act prohibits hawking of certain financial products. Section 992AA of that Act prohibits hawking of managed investment products.
Division 3—Lay-by agreements
188 Lay-by agreements must be in writing etc.
(1) A supplier of consumer goods who is a party to a lay-by agreement commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
189 Termination charges
(1) A supplier of consumer goods who is a party to a lay-by agreement commits an offence if the agreement requires the consumer to pay a termination charge.
Penalty:
Penalty:
(4) Subsections (1) and (3) are offences of strict liability.
190 Termination of lay-by agreements by suppliers
(1) A supplier of consumer goods who is a party to a lay-by agreement commits an offence if the supplier terminates the agreement.
Penalty:
191 Refund of amounts
(1) A supplier of consumer goods who is a party to a lay-by agreement commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
Division 4—Miscellaneous
192 Prescribed requirements for warranties against defects
(1) A person commits an offence if the person, in connection with the supply, in trade or commerce, of goods or services to a consumer:
Penalty:
(2) Subsection (1) is an offence of strict liability.
193 Repairers must comply with prescribed requirements
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
Part 4-3—Offences relating to safety of consumer goods and product related services
Division 1—Safety standards
194 Supplying etc. consumer goods that do not comply with safety standards
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) A person commits an offence if:
Penalty:
Penalty:
195 Supplying etc. product related services that do not comply with safety standards
(1) A person commits an offence if:
Penalty:
196 Requirement to nominate a safety standard
(1) A person commits an offence if the person refuses or fails to comply with a request given to the person under section 108.
Penalty:
(2) Subsection (1) is an offence of strict liability.
Division 2—Bans on consumer goods and product related services
197 Supplying etc. consumer goods covered by a ban
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) A person commits an offence if:
Penalty:
Penalty:
198 Supplying etc. product related services covered by a ban
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
Division 3—Recall of consumer goods
199 Compliance with recall orders
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
200 Notification by persons who supply consumer goods outside Australia if there is compulsory recall
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
201 Notification requirements for a voluntary recall of consumer goods
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
Division 4—Consumer goods, or product related services, associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
Part 4-4—Offences relating to information standards
203 Supplying etc. goods that do not comply with information standards
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) A person commits an offence if:
Penalty:
204 Supplying etc. services that do not comply with information standards
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsections (1) and (2) are offences of strict liability.
Part 4-5—Offences relating to substantiation notices
205 Compliance with substantiation notices
(1) A person commits an offence if the person:
Penalty:
206 False or misleading information etc.
(1) A person commits an offence if the person, in compliance or purported compliance with a substantiation notice given by the regulator:
Penalty:
Part 4-6—Defences
207 Reasonable mistake of fact
208 Act or default of another person etc.
209 Publication of advertisements in the ordinary course of business
In a prosecution for a contravention of a provision of this Chapter that was committed by publication of an advertisement, it is a defence if the defendant proves that:
210 Supplying goods acquired for the purpose of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter that was committed by supplying goods in contravention of section 194 or 203, it is a defence if the defendant proves that:
Note: Section 194 is about supply of consumer goods that do not comply with safety standards, and section 203 is about supply of goods that do not comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by subsection (1) unless:
211 Supplying services acquired for the purpose of re-supply
(1) In a prosecution for a contravention of a provision of this Chapter that was committed by supplying services in contravention of section 195 or 204, it is a defence if the defendant proves that:
Note: Section 195 is about supply of product related services that do not comply with safety standards, and section 204 is about supply of services that do not comply with information standards.
(2) A defendant is not entitled to rely on the defence provided by subsection (1) unless:
Part 4-7—Miscellaneous
212 Prosecutions to be commenced within 3 years
A prosecution for an offence against a provision of this Chapter may be commenced at any time within 3 years after the commission of the offence.
213 Preference must be given to compensation for victims
If a court considers that:
pay both the fine and the compensation; the court must give preference to making an order for compensation.
214 Penalties for contraventions of the same nature etc.
(1) If:
be applicable in respect of one offence by that person against that provision.
(2) This section applies whether or not the person is also convicted of an offence or offences constituted by, or relating to, another contravention or other contraventions of that provision that were of a different nature or occurred at a different time.
215 Penalties for previous contraventions of the same nature etc.
(1) If:
contravention mentioned in paragraph (a); the court must not, in respect of the offence mentioned in paragraph (a), impose on the person a fine that exceeds the amount (if any) by which the maximum fine applicable in respect of that offence is greater than the amount of the fine, or the sum of the amounts of the fines, referred to in paragraph (b).
(2) This section applies whether or not a fine has, or fines have, also previously been imposed on the person for an offence or offences constituted by, or relating to, a contravention or contraventions of that provision that were of a different nature or occurred at a different time.
216 Granting of injunctions etc.
In proceedings against a person for a contravention of a provision of this Chapter, the court may:
217 Criminal proceedings not to be brought for contraventions of Chapter 2 or 3
Criminal proceedings do not lie against a person only because the person:
Chapter 5—Enforcement and remedies
Part 5-1—Enforcement
Division 1—Undertakings
218 Regulator may accept undertakings
Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc.
supply (whether or not the claim or representation relates to those quantities or that period);
(c) give information and/or produce documents to the regulator
that are of a kind specified in the notice; within 21 days after the notice is given to the person who made the claim or representation.
220 Extending periods for complying with substantiation notices
221 Compliance with substantiation notices
(1) A person who is given a substantiation notice must comply with it within the substantiation notice compliance period for the notice.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) The substantiation notice compliance period for a substantiation notice is:
under section 220—the period as so extended; and includes (if an application has been made under section 220(1) for an extension of the period for complying with the notice) the period up until the time when the applicant is given notice of the regulator’s decision on the application.
(3) Despite subsection (1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.
222 False or misleading information etc.
(1) A person must not, in compliance or purported compliance with a substantiation notice given by the regulator:
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) This section does not apply to:
Division 3—Public warning notices
223 Regulator may issue a public warning notice
issue a notice under this subsection; the regulator may issue to the public a written notice containing a warning that the person has refused or failed to respond to the substantiation notice within that period, and specifying the matter to which the substantiation notice related.
Part 5-2—Remedies
Division 1—Pecuniary penalties
224 Pecuniary penalties
(1) If a court is satisfied that a person:
of each act or omission by the person to which this section applies, as the court determines to be appropriate.
Amount of pecuniary penalty Item For each act or omission to the pecuniary penalty is which this section applies not to exceed ... that relates to ...
1 a provision of Part 2-2 (a) if the person is a body corporate—$1.1 million; or
(b) if the person is not a body corporate— $220,000.
2 a provision of Part 3-1 (other (a) if the person is a body than section 47(1)) corporate—$1.1 million; or
(b) if the person is not a body corporate— $220,000.
3 section 47(1) (a) if the person is a body corporate—$5,000; or
(b) if the person is not a
Amount of pecuniary penalty Item For each act or omission to the pecuniary penalty is which this section applies not to exceed ... that relates to ...
body corporate—$1,000.
section 66(2) (a) if the person is a body corporate—$50,000; or 4
(b) if the person is not a body corporate— $10,000.
5 a provision of Division 2 of (a) if the person is a body Part 3-2 (other than corporate—$50,000; or
section 85) (b) if the person is not a body corporate— $10,000.
6 a provision of Division 3 of (a) if the person is a body Part 3-2 (other than corporate—$30,000; or section 96(2)) (b) if the person is not a body corporate—$6,000.
7 section 100(1) or (3) or 101(3) (a) if the person is a body or (4) corporate—$15,000; or
(b) if the person is not a body corporate—$3,000.
8 section 102(2) or 103(2) (a) if the person is a body corporate—$50,000; or
(b) if the person is not a body corporate— $10,000.
9 section 106(1), (2), (3) or (5), (a) if the person is a body 107(1) or (2), 118(1), (2), (3) corporate—$1.1 million; or (5) or 119(1) or (2) or
(b) if the person is not a body corporate— $220,000.
10 section 125(4) (a) if the person is a body corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
11 section 127(1) or (2) (a) if the person is a body corporate—$1.1 million; or
Amount of pecuniary penalty Item For each act or omission to the pecuniary penalty is which this section applies not to exceed ... that relates to ...
(b) if the person is not a body corporate— $220,000.
12 section 128(2) or (6), 131(1) (a) if the person is a body or 132(1) corporate—$16,500; or
(b) if the person is not a body corporate—$3,300.
13 section 136(1), (2) or (3) or (a) if the person is a body 137(1) or (2) corporate—$1.1 million; or
(b) if the person is not a body corporate— $220,000.
14 | section 221(1) | (a) if the person is a body corporate—$16,500; or |
(b) if the person is not a | ||
body corporate—$3,300. | ||
15 | section 222(1) | (a) if the person is a body corporate—$27,500; or |
(b) if the person is not a | ||
body corporate—$5,500. |
(4) If conduct constitutes a contravention of 2 or more provisions referred to in subsection (1)(a):
225 Pecuniary penalties and offences
(1) A court must not make an order under section 224 against a person in relation to either of the following matters (a consumer protection breach):
that relates to a contravention of such a provision; if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the consumer protection breach.
(2) Proceedings for an order under section 224 against a person in relation to a consumer protection breach are stayed if:
The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the order.
226 Defence
If, in proceedings under section 224 against a person other than a body corporate, it appears to a court that the person has, or may have:
(e) or (f) of that section that relates to a contravention of such
a provision; but that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the court may relieve the person either wholly or partly from liability to a pecuniary penalty under that section.
227 Preference must be given to compensation for victims
If a court considers that:
pay both the pecuniary penalty and the compensation; the court must give preference to making an order for compensation.
228 Civil action for recovery of pecuniary penalties
229 Indemnification of officers
(1) A body corporate (the first body), or a body corporate related to the first body, commits an offence if it indemnifies a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against either of the following liabilities incurred as an officer (within the meaning of the Corporations Act 2001) of the first body:
Penalty: $2,750.
(2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
230 Certain indemnities not authorised and certain documents void
Division 2—Injunctions
232 Injunctions
233 Consent injunctions
If an application is made under section 232, the court may, if it considers that it is appropriate to do so, grant an injunction under this section by consent of all the parties to the proceedings, whether or not the court is satisfied as required by section 232(1).
234 Interim injunctions
the court must accept the undertaking by the responsible Minister and must not require a further undertaking from any other person.
235 Variation and discharge of injunctions
A court may vary or discharge an injunction (including an interim injunction) that it has granted under this Division.
Division 3—Damages
236 Actions for damages
(1) If:
action against that other person, or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
Division 4—Compensation orders etc. for injured persons and orders for non-party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
more such injured persons; make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
238 Compensation orders etc. arising out of other proceedings
(1) If a court finds, in a proceeding instituted under a provision of Chapter 4 or this Chapter (other than this section), that a person (the injured person) who is a party to the proceeding has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
the court may make such order or orders as it thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
Subdivision B—Orders for non-party consumers
239 Orders to redress etc. loss or damage suffered by non-party consumers
(1) If:
relation to the contravening conduct or declared term; a court may, on the application of the regulator, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
240 Determining whether to make a redress order etc. for non-party consumers
241 When a non-party consumer is bound by a redress order etc.
Territory; no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.
Subdivision C—Miscellaneous
242 Applications for orders
243 Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:
244 Power of a court to make orders
A court may make an order under Subdivision A or B of this Division whether or not the court:
245 Interaction with other provisions
Subdivisions A and B of this Division do not limit the generality of Division 2 of this Part.
Division 5—Other remedies
246 Non-punitive orders
Note: The following are examples of orders that the court may make under subsection (2)(a):
(3) This section does not limit a court’s powers under any other provision of this Schedule.
247 Adverse publicity orders
248 Order disqualifying a person from managing corporations
(1) A court may, on application of the regulator, make an order disqualifying a person from managing corporations for a period that the court considers appropriate if:
Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.
Note: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001.
(4) For the purposes of this Schedule (other than this section or section 249), an order under this section is not a penalty.
249 Privilege against exposure to penalty or forfeiture— disqualification from managing corporations
(1) In a civil or criminal proceeding under, or arising out of, this Schedule, a person is not entitled to refuse or fail to comply with a requirement:
be, might tend to expose the person to a penalty (including forfeiture) by way of an order under section 248.
be, might tend to expose the person to a penalty (including forfeiture) by way of an order under section 248.
250 Declarations relating to consumer contracts
Division 6—Defences
251 Publication of advertisement in the ordinary course of business
252 Supplying consumer goods for the purpose of re-supply
(i) the defendant did not know, and could not with reasonable diligence have ascertained, that the consumer goods did not comply with that safety standard, or that the defendant had not complied with that information standard, as the case may be; or
(ii) the defendant relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no safety standard or information standard, as the case may be, for such consumer goods.
(3) A defendant is not entitled to rely on the defence provided by subsection (2) unless:
253 Supplying product related services for the purpose of re-supply
Part 5-3—Country of origin representations
254 Overview
This Part provides that certain country of origin representations made about goods do not contravene:
255 Country of origin representations do not contravene certain provisions
(1) A person does not contravene section 18, 29(1)(a) or (k) or 151(1)(a) or (k) only by making a representation of a kind referred to in an item in the first column of this table, if the requirements of the corresponding item in the second column are met.
Country of origin representations Country of origin representations
Item | Representation | Requirements to be met |
---|---|---|
1 | A representation as to the country of origin of | (a) the goods have been substantially transformed in that country; and |
goods | (b) 50% or more of the total cost of producing or | |
manufacturing the goods as worked out under | ||
section 256 is attributable to production or | ||
manufacturing processes that occurred in that | ||
country; and | ||
(c) the representation is not a representation to | ||
which item 2 or 3 of this table applies. | ||
2 | A representation that goods are the produce of a particular country | (a) the country was the country of origin of each significant ingredient or significant component of the goods; and |
(b) all, or virtually all, processes involved in the | ||
production or manufacture happened in that | ||
country. | ||
3 | A representation as to the country of origin of | (a) the goods have been substantially transformed in the country represented by the logo as the |
Item | Representation | Requirements to be met |
---|---|---|
goods by means of a | country of origin of the goods; and | |
logo specified in the regulations | (b) the prescribed percentage of the cost of producing or manufacturing the goods as | |
worked out under section 256 is attributable to | ||
production or manufacturing processes that | ||
happened in that country. |
A representation that goods were grown in a particular country
A representation that ingredients or components of goods were grown in a particular country
Note: The regulations may prescribe rules for determining the percentage of the total costs of production or manufacture of goods attributable to production or manufacturing processes that occurred in a particular country, see section 257.
256 Cost of producing or manufacturing goods
(1) The cost of producing or manufacturing goods is worked out, for the purposes of section 255, by adding up the following amounts:
goods; each worked out in accordance with this table:
Cost of producing or manufacturing goods
Item | This amount of | is worked out as follows: |
expenditure: | ||
1 | Expenditure on materials in respect of the goods | The cost of materials used in the production or manufacture of the goods: (a) that is incurred by the manufacturer of the goods; and |
(b) that has not been prescribed by regulations made for the purposes of subsection (2)(a). |
Expenditure on labour in respect of the goods The sum of each labour cost:
Cost of producing or manufacturing goods
Item | This amount of | is worked out as follows: |
expenditure: | ||
(d) that has not been prescribed by regulations | ||
made for the purposes of subsection (2)(b). | ||
3 | Expenditure on | The sum of each overhead cost: |
overheads in respect of the goods | (a) that is incurred by the manufacturer of the goods; and | |
(b) that relates to the production or manufacture | ||
of the goods; and | ||
(c) that can reasonably be allocated to the | ||
production or manufacture of the goods; and | ||
(d) that has not been prescribed by regulations | ||
made for the purposes of subsection (2)(c). |
257 Rules for determining the percentage of costs of production or manufacture attributable to a country
258 Proceedings relating to false, misleading or deceptive conduct or representations
If:
the person bears an evidential burden in relation to the matters set out in the provision on which the person seeks to rely.
Part 5-4—Remedies relating to guarantees
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
and they cannot, easily and within a reasonable time, be
remedied to make them fit for such a purpose; or
(e) the goods are not of acceptable quality because they are unsafe.
261 How suppliers may remedy a failure to comply with a guarantee
If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
265 Termination of contracts for the supply of services that are connected with rejected goods
(1) If:
consumer that are connected with the rejected goods; the consumer may terminate the contract for the supply of the services.
consideration provided by the consumer for the services; to the extent that the consumer has not already consumed the services at the time the termination takes effect.
266 Rights of gift recipients
If a consumer acquires goods from a supplier and gives them to another person as a gift, the other person may, subject to any defence which would be available to the supplier against the consumer:
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) terminate the contract for the supply of the services.
268 When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:
269 Termination of contracts for the supply of services
consideration provided by the consumer for the services; to the extent that the consumer has not already consumed the services at the time the termination takes effect.
270 Termination of contracts for the supply of goods that are connected with terminated services
(1) If:
goods to the consumer that are connected with the services; then:
(2) If subsection (1)(d)(ii) applies, the supplier must collect the goods at the supplier’s expense.
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
(1) If:
the manufacturer of the goods, recover damages from the manufacturer.
not complied with; an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.
the manufacturer of the goods, recover damages from the manufacturer.
(6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):
refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.
(7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.
272 Damages that may be recovered by action against manufacturers of goods
273 Time limit for actions against manufacturers of goods
An affected person may commence an action for damages under this Division at any time within 3 years after the day on which the affected person first became aware, or ought reasonably to have become aware, that the guarantee to which the action relates has not been complied with.
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
If:
contract; that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.
276 This Part not to be excluded etc. by contract
276A Limitation in certain circumstances of liability of manufacturer to seller
277 Representative actions by the regulator
Part 5-5—Liability of suppliers and credit providers
Division 1—Linked credit contracts
278 Liability of suppliers and linked credit providers relating to linked credit contracts
(1) If a consumer who is a party to a linked credit contract suffers loss or damage as a result of:
the linked credit provider who is a party to the contract, and the supplier of a related supply, are jointly and severally liable to the consumer for the amount of the loss or damage.
(2) A linked credit contract is a contract that a consumer enters into with a linked credit provider of a person (the supplier) for the provision of credit in relation to:
279 Action by consumer to recover amount of loss or damage
280 Cases where a linked credit provider is not liable
comply with a guarantee, or a breach of a warranty, referred to in section 278(1).
(6) This section has effect despite section 278(1).
281 Amount of liability of linked credit providers
The liability of a linked credit provider to a consumer under section 278(1) in relation to a contract referred to in section 278(1) is limited to an amount that does not exceed the sum of:
282 Counter-claims and offsets
(1) If proceedings in relation to a linked credit contract are brought against a consumer who is party to the contract by the linked credit provider who is a party to the contract, the consumer is not entitled to:
relation to that liability; unless the consumer claims in the proceedings against the supplier in respect of the liability, by third-party proceedings or otherwise.
283 Enforcement of judgments etc.
284 Award of interest to consumers
(1) If, in joint liability proceedings, judgment is given against the following (the defendant) for an amount of loss or damage:
defendant upon the whole or a part of the amount, unless good cause is shown to the contrary.
285 Liability of suppliers to linked credit providers, and of linked credit providers to suppliers
286 Joint liability proceedings and recovery under section 135 of the National Credit Code
(1) If:
section; the following amounts may be recovered in the joint liability proceedings (to the extent that they have not been recovered under section 135 of the National Credit Code):
(2) An amount that is recovered under subsection (1) ceases to be recoverable under section 135 of the National Credit Code.
Division 2—Non-linked credit contracts
287 Liability of suppliers and credit providers relating to non-linked credit contracts
Schedule 2—Application of the Australian Consumer Law
Trade Practices Act 1974
1 Part XI
Repeal the Part, substitute:
Part XI—Application of the Australian Consumer Law as a law of the Commonwealth
Division 1—Preliminary
130 Definitions
In this Part:
associate: a person (the first person) is an associate of another person if:
Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part. Chairperson has the same meaning as in subsection 4(1). corporation has the same meaning as in subsection 4(1). disclosure notice: see subsection 133D(3).
embargo notice: see subsection 135S(1). embargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d).
enforcement order: see paragraph 139D(1)(b).
Family Court Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge).
Federal Court means the Federal Court of Australia.
infringement notice means an infringement notice issued under subsection 134A(1). infringement notice compliance period: see subsection 134F(1). infringement notice provision: see subsection 134A(2). inspector means a person who is appointed as an inspector under
subsection 133(1).
listed corporation has the meaning given by section 9 of the Corporations Act 2001. member of the Commission has the same meaning as in subsection
4(1). occupational liability: see subsection 137(5). personal injury includes:
recreational services: see subsection 139A(2). search-related powers: see subsections 135A(1) and (2).
search warrant means a warrant issued or signed under section 135Z or 136.
smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
state of mind, of a person, includes a reference to:
tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992.
130A Expressions defined in Schedule 2
An expression has the same meaning in this Part as in Schedule 2.
Division 2—Application of the Australian Consumer Law as a law of the Commonwealth
Subdivision A—Application of the Australian Consumer Law
131 Application of the Australian Consumer Law in relation to corporations etc.
(1) Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.
Note: Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth).
131A Division does not apply to financial services
131B Division does not apply to interim bans imposed by State or Territory Ministers
Despite section 131, this Division does not apply to an interim ban that is not imposed by the Commonwealth Minister.
131C Saving of other laws and remedies
he or she is not liable to be convicted of the other of those offences.
(4) Except as expressly provided by this Part or the Australian Consumer Law, nothing in this Part or the Australian Consumer Law is taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part and the Australian Consumer Law had not been enacted.
Subdivision B—Effect of other Commonwealth laws on the Australian Consumer Law
131D Effect of Part VIB on Chapter 5 of the Australian Consumer Law
Chapter 5 of the Australian Consumer Law has effect subject to Part VIB.
131E Application of the Legislative Instruments Act 2003
131F Section 4AB of the Crimes Act does not apply
Section 4AB of the Crimes Act 1914 does not apply to any provision of this Part or the Australian Consumer Law.
131G Application of the Criminal Code
Corporate criminal responsibility
(1) Part 2.5 of the Criminal Code does not apply to an offence against this Part or the Australian Consumer Law.
Mistake of fact defence
(2) Section 9.2 of the Criminal Code does not apply to an offence against Chapter 4 of the Australian Consumer Law.
Note: Section 207 of the Australian Consumer Law provides a mistake of fact defence for offences under Chapter 4 of the Australian Consumer Law.
Division 3—Conferences for proposed bans and recall notices
Subdivision A—Conference requirements before a ban or compulsory recall
132 Commonwealth Minister must issue a proposed ban notice
to hold a conference in relation to the proposed imposition of the ban.
132A Commonwealth Minister must issue a proposed recall notice
132B Commonwealth Minister to be notified if no person wishes a conference to be held
132C Notification of conference
132D Recommendation after conclusion of conference
Subdivision B—Conference requirements after an interim ban is imposed
132E Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister
in the notice, if the person wishes the Commission to hold a conference in relation to the interim ban.
132F Notification of conference
132G Recommendation after conclusion of conference
Subdivision C—Conduct of conferences
132H Conduct of conferences
Subdivision D—Miscellaneous
132J Interim ban and recall notice without delay in case of danger to the public
the Commonwealth Minister may impose the interim ban, or issue the recall notice, without regard to that action.
(4) A notice under subsection (1) or (2) is not a legislative instrument.
132K Copy of notices under this Division to be given to suppliers
(1) If the Commonwealth Minister:
supplies the consumer goods, or the product related services, to which the notice relates.
Division 4—Enforcement
Subdivision A—Inspectors
133 Appointment of inspectors
133A Identity cards
(1) The Chairperson must issue an identity card to a person appointed as an inspector.
Form of identity card
(2) The identity card must:
Offence
(3) A person commits an offence if:
Penalty: 1 penalty unit.
(4) An offence against subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence: card lost or destroyed
(5) Subsection (3) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Inspector must carry card
(6) An inspector issued with an identity card under subsection (1) must carry his or her identity card at all times when exercising powers as an inspector.
Subdivision B—Premises to which the public is given access
133B Power to enter premises to which the public has access— consumer goods
(1) An inspector may enter premises in or from which a person, in trade or commerce, supplies consumer goods, if the public has access to the premises at the time of entry, for the purpose of ascertaining whether:
consumer goods will or may cause injury to any person; and remain on the premises for such a purpose while the public has access to the premises.
(2) While on the premises, the inspector may:
133C Power to enter premises to which the public has access— product related services
(1) An inspector may enter premises in or from which a person, in trade or commerce, supplies product related services, if the public has access to the premises at the time of entry, for the purposes of ascertaining whether:
and remain on the premises for such a purpose while the public has access to the premises.
(2) While on the premises, the inspector may:
Subdivision C—Disclosure notices relating to the safety of goods or services
133D Power to obtain information etc.
Consumer goods
(1) The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies consumer goods of a particular kind if the person giving the notice has reason to believe:
Product related services
(2) The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier) who, in trade or commerce, supplies product related services of a particular kind if the person giving the notice has reason to believe:
Disclosure notice
133E Self-incrimination
(1) A person is not excused from:
as required by a disclosure notice given to the person on the ground that the information or evidence, or production of the document, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
document; are not admissible in evidence against the individual:
133F Compliance with disclosure notices
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) does not apply if the person complies with the disclosure notice to the extent to which the person is capable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
133G False or misleading information etc.
A person commits an offence if:
Penalty:
Subdivision D—Court orders relating to the destruction etc. of goods
133H Court orders relating to consumer goods that do not comply with a safety standard etc.
(1) If a court is satisfied that:
(iii) a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied;
the court may, on the application of an inspector, make an order of a kind referred to in subsection (2).
133J Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods
(1) If an inspector seizes, and destroys or otherwise disposes of, consumer goods in accordance with an order made under subsection 133H(1):
the owner of the consumer goods; is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing, and in destroying or disposing of, the consumer goods.
(2) An amount payable by a person under subsection (1):
Division 5—Infringement notices
134 Purpose and effect of this Division
134A Issuing an infringement notice
134B Matters to be included in an infringement notice
An infringement notice must:
134C Amount of penalty
The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law, must be a penalty equal to the amount worked out using the following table:
Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law ...
a provision of Part 2-2 (a) if the person is a listed corporation—600 penalty units; or 1
2 a provision of Part 3-1 (other (a) if the person is a listed than subsection 32(1), 35(1), corporation—600 36(1), (2) or (3), section 40 or penalty units; or 43 or subsection 47(1)) (b) if the person is a body corporate other than a listed corporation—60 penalty units; or
(c) if the person is not a body corporate—12 penalty units.
3 subsection 47(1) (a) if the person is a body corporate—10 penalty units; or
(b) if the person is not a body corporate—2 penalty units.
4 subsection 66(2) (a) if the person is a body corporate—55 penalty units; or
(b) if the person is not a body corporate—11 penalty units.
5 a provision of Division 2 of (a) if the person is a body Part 3-2 (other than corporate—60 penalty section 85) units; or
(b) if the person is not a
Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law ...
body corporate—12 penalty units.
6 a provision of Division 3 of (a) if the person is a body Part 3-2 (other than subsection corporate—55 penalty 96(2)) units; or
(b) if the person is not a body corporate—11 penalty units.
7 subsection 100(1) or (3) or (a) if the person is a body 101(3) or (4) corporate—20 penalty units; or
(b) if the person is not a body corporate—4 penalty units.
8 subsection 102(2) or 103(2) (a) if the person is a body corporate—60 penalty units; or
(b) if the person is not a body corporate—12 penalty units.
9 subsection 106(1), (2), (3) or (a) if the person is a listed (5), 107(1) or (2), 118(1), (2), corporation—600
(3) or (5), 119(1) or (2) penalty units; or
10 subsection 125(4) (a) if the person is a body corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law ...
subsection 127(1) or (2) (a) if the person is a listed corporation—600 penalty units; or 11
12 subsection 128(2) or (6), (a) if the person is a body 131(1) or 132(1) corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
13 subsection 136(1), (2) or (3) (a) if the person is a listed or 137(1) or (2) corporation—600 penalty units; or
14 subsection 221(1) (a) if the person is a body corporate—30 penalty units; or
(b) if the person is not a body corporate—6 penalty units.
15 subsection 222(1) (a) if the person is a body corporate—50 penalty units; or
(b) if the person is not a
Amount of penalty Item If the infringement notice is the amount is ... for an alleged contravention of one of the following provisions of the Australian Consumer Law ...
body corporate—10 penalty units.
134D Effect of compliance with an infringement notice
134E Effect of failure to comply with an infringement notice
If:
the Australian Consumer Law in relation to the alleged contravention of the infringement notice provision.
134F Infringement notice compliance period for infringement notice
134G Withdrawal of an infringement notice
Representations to the Commission
proceedings for an offence based on the evidence or information given being false or misleading).
Withdrawal by the Commission
Content of withdrawal notices
(5) The withdrawal notice must state:
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.
Refunds
(7) If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.
Division 6—Search, seizure and entry
Subdivision A—Powers of inspectors
135 Inspector may enter premises
Consumer goods
(1) If an inspector has reason to believe that:
the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):
Product related services
(2) If an inspector has reason to believe that:
the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):
Limitation on entry
(3) However, the inspector is not entitled to enter premises under subsection (1) or (2) unless:
Note: For requirements relating to the occupier’s consent, see section 135H.
135A Search-related powers of inspectors
Search-related powers—consumer goods
(1) The following are the search-related powers that an inspector may exercise, under subsection 135(1), in relation to premises in or from which the inspector has reason to believe that a person supplies consumer goods of a particular kind:
(iii) any equipment referred to in subparagraph (e)(i).
Search-related powers—product related services
(2) The following are the search-related powers that an inspector may exercise, under subsection 135(2), in relation to premises in or from which the inspector has reason to believe that a person supplies product related services of a particular kind:
(iii) any equipment referred to in subparagraph (b)(i).
135B Inspector may ask questions and seek production of documents
Entry with consent etc.
(1) If an inspector enters premises because the occupier of the premises consents to the entry or in the circumstances referred to in paragraph 135(3)(c), the inspector may ask the occupier to:
Entry under a search warrant
(2) If an inspector enters premises under a search warrant, the inspector may require any person on the premises to:
135C Failure to answer questions or produce documents
(1) A person commits an offence if:
Penalty:
(2) A person is not excused from:
answer, or production of the document, might tend to incriminate the person or expose the person to a penalty.
(3) However, in the case of an individual:
are not admissible in evidence against the individual in any criminal proceedings other than:
(4) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135D Persons assisting inspectors
Inspectors may be assisted by other persons
Powers of a person assisting the inspector
135E Use of force in executing a search warrant
In executing a search warrant, an inspector executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances.
135F Announcement before entry under warrant
apparently represents the occupier, is present at the premises; the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.
135G Inspector must be in possession of search warrant
If a search warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of:
Subdivision B—Obligations of inspectors
135H Consent
135J Details of search warrant etc. must be given to the occupier of the premises
If:
apparently represents the occupier, is present at the premises; an inspector executing the warrant must, as soon as practicable:
Subdivision C—Occupier’s etc. rights and responsibilities
135K Occupier etc. entitled to observe execution of search warrant
(1) If:
apparently represents the occupier, is present at the premises; the occupier or other person is entitled to observe the execution of the warrant.
135L Occupier etc. to provide inspector etc. with facilities and assistance
(1) A person commits an offence if:
with all reasonable facilities and assistance for the effective exercise of their powers.
Penalty:
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
135M Receipts for seized consumer goods and equipment
135N Return of seized consumer goods and equipment
(1) Subject to any order under section 135P, if an inspector seizes consumer goods or equipment under a search warrant, the inspector must take reasonable steps to return the consumer goods or equipment if:
135P Judge may permit consumer goods or equipment to be retained
the judge may order that the inspector may retain the consumer goods or equipment for a further period (not exceeding 60 days) specified in the order.
(3) Before making the application under subsection (1), the inspector must:
Subdivision D—Provisions relating to seizure
135Q Recovery of reasonable costs of seizing consumer goods or equipment
(1) If an inspector seizes consumer goods or equipment under a search warrant:
equipment—the owner of the consumer goods or equipment; is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing the consumer goods or equipment.
(2) An amount payable by a person under subsection (1):
135R Destruction or disposal of seized consumer goods or equipment
(1) If:
consumer goods or equipment; a court may, on the application of the inspector, make an order authorising the inspector to destroy or otherwise dispose of the consumer goods or equipment.
amount equal to the costs reasonably incurred by the inspector in destroying or disposing of the consumer goods or equipment.
(4) An amount payable by a person under subsection (3):
Subdivision E—Embargo notices
135S Embargo notices
interfered with; during the period specified in the notice; and
135T Embargo period for embargo notices
Embargo period
(1) Subject to this section, the embargo period for an embargo notice must not be longer than:
Extensions of embargo period
135U Multiple embargo notices for the same consumer goods or product related services
An inspector must not give an embargo notice in relation to consumer goods, or product related services, of a particular kind if:
135V Power of inspectors to secure consumer goods
If:
the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure those consumer goods (whether by locking them up, placing a guard or otherwise).
135W Power of inspectors to secure equipment used to supply product related services
If:
the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure that equipment (whether by locking it up, placing a guard or otherwise).
135X Consent to supply etc. embargoed consumer goods etc.
135Y Compliance with embargo notices
(1) A person commits an offence if:
Penalty:
(2) A person commits an offence if:
Penalty:
(3) Subsection (1) or (2) does not apply in relation to:
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(4) Strict liability applies to paragraphs (1)(b) and (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Subdivision F—Issue of search warrants
135Z Issue of search warrants
Application for warrant
(1) An inspector may apply to a judge of the Federal Court for a warrant in relation to premises.
Issue of warrant
(2) The judge may issue the warrant if:
Content of warrant
(3) The warrant must:
136 Search warrants by telephone, fax etc.
Application for warrant
(1) An inspector may apply to a judge of the Federal Court by telephone, fax or other electronic means for a warrant under section 135Z in relation to premises if the inspector believes on reasonable grounds that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
Voice communication
(2) The judge may require communication by voice to the extent that it is practicable in the circumstances.
Affidavit
Signing of warrant
(5) If the judge is satisfied:
that there are reasonable grounds for issuing the warrant, the judge may complete and sign the same warrant that the judge would issue under section 135Z if the application had been made under that section.
Notification
(6) If the judge completes and signs the warrant, the judge must inform the inspector, by telephone, fax or other electronic means, of:
Form of warrant
(7) The inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the judge, stating on the form the name of the judge and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to judge
(8) The inspector must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is the earlier, send to the judge:
Attachment
(9) The judge must attach to the documents provided under subsection (8) the warrant signed by the judge.
Authority of warrant
the power is not produced in evidence; the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.
136A Offence relating to warrants by telephone, fax etc.
An inspector commits an offence if the inspector:
Penalty: 120 penalty units or imprisonment for 2 years, or both.
Subdivision G—Miscellaneous
136B Powers of judges
Powers conferred personally
Powers need not be accepted
Protection and immunity
(3) A judge exercising a power conferred by this Division has the same protection and immunity as if he or she were exercising the power:
Division 7—Remedies
137 Limit on occupational liability
State or Territory professional standards law limits liability
Operation of choice of law rules
(3) For the purposes of working out whether a professional standards law of a particular State or Territory applies under subsection (1) in relation to a particular contravention of section 18 of the Australian Consumer Law, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort.
Professional standards laws
(4) A professional standards law is a law that provides for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law.
Occupational liability
(5) Occupational liability is civil liability arising directly or vicariously from anything done or omitted by a person who:
137A Contributory acts or omissions to reduce compensation in defective goods actions
(1) If the loss or damage to which a defective goods action under section 138 or 139 of the Australian Consumer Law relates was caused by both:
(which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage.
(2) If the loss or damage to which a defective goods action under section 140 or 141 of the Australian Consumer Law relates was caused by both:
the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in the responsibility for the loss or damage.
137B Reduction of the amount of loss or damage if the claimant fails to take reasonable care
If:
and did not fraudulently cause the loss or damage; the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.
137C Limits on recovery of amounts for death or personal injury
of tobacco products; as if the action were a proceeding to which Part VIB of this Act applied.
Note 1: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law.
Note 2: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.
137D Compensation orders etc. arising out of unfair contract terms
In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to:
the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the declaration was made.
137E Limits on compensation orders etc. for death or personal injury
of tobacco products; as if the proceeding in relation to the application were a proceeding to which Part VIB of this Act applies and as if the making of the application were the commencement of the proceeding.
Note: Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the application by this subsection, it overrides subsection 237(3) of the Australian Consumer Law.
(3) Division 7 of Part VIB of this Act applies to a proceeding in which an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person is made, to the extent to which:
as if the proceeding were a proceeding to which Part VIB of this Act applied.
Note: Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.
137F Court may make orders for the purpose of preserving money or other property held by a person
(1) A court may, on the application of the Commonwealth Minister or the Commission, make an order or orders mentioned in subsection (3) if:
Kinds of proceedings taken against the person
(2) For the purposes of paragraph (1)(a), the kinds of proceedings taken against the person are:
Kinds of orders that may be made
(3) The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent):
Operation of order
(4) If the court makes such an order, the order operates:
Other
(5) This section:
137G Compliance with orders made under section 137F
(1) A person commits an offence if:
Penalty:
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
137H Finding in proceedings to be evidence
Division 8—Jurisdictional matters
138 Conferring jurisdiction on the Federal Court
138A Conferring jurisdiction on the Federal Magistrates Court
Note: For transfers from the Federal Court to the Federal Magistrates Court: see section 32AB of the Federal Court of Australia Act 1976.
138B Conferring jurisdiction on State and Territory Courts
138C Transfer of matters by the Federal Court
(1) Subject to subsections (2) and (3), if:
Part or the Australian Consumer Law; the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in the proceeding, to a court of a State or a Territory.
138D Transfer of matters by a State or Territory court
138E Transfer of proceedings to Family Court
(1) If:
proceeding or of its own motion, transfer the proceeding to the Family Court.
(2) Subject to subsection (3), if a proceeding is transferred to the Family Court under subsection (1):
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have granted, made, issued or directed the issue of, in and in relation to the proceeding; and
(iii) a reference to the expression the Court or a Judge when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and
Division 9—Miscellaneous
139 Intervention by the Commission
139A Terms excluding consumer guarantees from supplies of recreational services
139B Conduct of directors, employees or agents of bodies corporate
implied) of such a director, employee or agent; if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the body corporate.
139C Conduct of employees or agents of persons other than bodies corporate
implied) of such an employee or agent; if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the principal.
(3) If:
that subsection had not been enacted; the person is not liable to be punished by imprisonment for that offence.
139D Enforcement and recovery of certain fines
day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.
139DA Application of section 229 of the Australian Consumer Law to a person other than a body corporate
If, as a result of the operation of Part 2.4 of the Criminal Code, a person other than a body corporate is:
the relevant offence is taken to be punishable on conviction by a fine not exceeding $550.
139E Cessation of enforcement orders etc.
the court must, by order, declare that the enforcement order or orders cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment.
139F Compensation for acquisition of property
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
139G Regulations
consumer contract, or a kind of effect that such a term has, the Commonwealth Minister must take into consideration:
(3) Before the Governor-General makes a regulation under subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that:
adequately provide for consumer rights in relation to supplies of that kind.
(4) The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2:
(iii) specified conduct entered into; pursuant to or for the purposes of a specified agreement,
arrangement or understanding between the Government of Australia and the Government of a foreign country; or
(c) prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.
(5) Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.
Part XIAA—Application of the Australian Consumer Law as a law of a State or Territory
140 Definitions
In this Part:
application law means:
applied Australian Consumer Law means (according to the context):
apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:
Commonwealth entity means:
imposes a duty has the meaning given by section 140G.
modifications includes additions, omissions and substitutions.
officer, in relation to the Commonwealth, includes the following:
participating jurisdiction means a participating State or participating Territory.
participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications.
participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications.
Territory means the Australian Capital Territory or the Northern Territory.
140A Object of this Part
The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.
140B The applied Australian Consumer Law
The applied Australian Consumer Law consists of:
140C Federal Court may exercise jurisdiction under application laws of Territories
The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.
140D Exercise of jurisdiction under cross-vesting provisions
This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.
140E Commonwealth consent to conferral of functions etc. on Commonwealth entities
(1) An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law.
Note: Section 140G sets out when such a law imposes a duty on a Commonwealth entity.
140F How duty is imposed
Application
(1) This section applies if an application law purports to impose a duty on a Commonwealth entity.
Note: Section 140G sets out when such a law imposes a duty on a Commonwealth entity.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 140E to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
140G When an application law imposes a duty
For the purposes of this Part, an application law imposes a duty on a Commonwealth entity if:
140H Application laws may operate concurrently with this Act
This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.
140J No doubling-up of liabilities
(1) If:
application law; the offender is not liable to be punished for the offence against this Act.
(2) If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.
140K References in instruments to the Australian Consumer Law
Schedule 3—Amendment of the Corporations legislation
Australian Securities and Investments Commission Act 2001
1 Subsection 12BA(1)
Insert:
assert a right to payment has the meaning given by section 12BEA.
2 Subsection 12BA(1) (definition of infringement notice provision)
Omit “, subsection 12DC(2)”.
3 Subsection 12BA(1) (definition of misleading)
Omit “has”, substitute “includes”.
4 Subsection 12BA(1) (paragraph (a) of the definition of services)
Omit “Trade Practices Act 1974”, substitute “Competition and Consumer Act 2010”.
5 Subsection 12BA(1)
Insert:
unsolicited financial products means financial products supplied to a person without any request made by the person or on the person’s behalf.
6 Section 12BB
Repeal the section, substitute:
12BB Misleading representations with respect to future matters
(1) If:
representation; the representation is taken, for the purposes of Subdivision D (sections 12DA to 12DN), 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:
grounds for making the representation, unless evidence is adduced to the contrary.
because the person has reasonable grounds for making the representation.
7 Subsection 12BC(1)
After “use” (wherever occurring), insert “or consumption”.
8 At the end of Subdivision B of Division 2 of Part 2
Add:
12BEA Asserting a right to payment
(1) For the purposes of this Division, a person is taken to assert a right to payment from another person if the person:
(iii) sets out the charge for an advertisement, for financial
services or financial products, that has been published; 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.
9 Paragraph 12CC(2)(j)
Repeal the paragraph, substitute:
(j) if there is a contract between the supplier and the service recipient for the supply of the financial services:
(iii) the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and
10 Paragraph 12CC(2)(ja)
Before “whether”, insert “without limiting paragraph (j),”.
11 Paragraph 12CC(3)(j)
Repeal the paragraph, substitute:
(j) if there is a contract between the acquirer and the business supplier for the acquisition of the financial services:
(iii) the conduct of the acquirer and the business supplier in complying with the terms and conditions of the contract; and
(iv) any conduct that the acquirer or the business supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and
12 Paragraph 12CC(3)(ja)
Before “whether”, insert “without limiting paragraph (j),”.
13 Subsection 12CC(11) (definition of applicable industry code)
Omit “Trade Practices Act 1974”, substitute “Competition and Consumer Act 2010”.
14 Subsection 12CC(11) (definition of industry code)
Omit “Trade Practices Act 1974”, substitute “Competition and Consumer Act 2010”.
15 Subsection 12DB(1)
Repeal the subsection, substitute:
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services:
Note: Failure to comply with this subsection is an offence (see section 12GB).
(1A) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in paragraph (1)(c) or (d), the representation is taken to be misleading unless evidence is adduced to the contrary.
(1B) To avoid doubt, subsection (1A) does not:
16 Subsection 12DC(2)
Repeal the subsection.
Note: The heading to section 12DC is altered by omitting “representations and other misleading or offensive conduct”, and substituting “or misleading representations”.
17 Subsection 12DC(2B)
Repeal the subsection.
18 Subsection 12DC(2C)
Omit “paragraphs (2)(b) and (2A)(b)”, substitute “paragraph (2A)(b)”.
19 Paragraph 12DE(1)(a)
Omit “gifts, prizes or other free items”, substitute “any rebate, gift, prize or other free item”.
Note: The heading to section 12DE is altered by omitting “gifts and prizes”, and substituting “rebates, gifts, prizes etc.”.
20 Paragraph 12DE(1)(b)
Repeal the paragraph, substitute:
(b) the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:
(iii) the sale or grant, or the possible sale or grant, of a financial product that consists of, or includes, an interest in land; or
(iv) the promotion by any means of a financial product that consists of, or includes, an interest in land; and
21 Paragraph 12DE(1)(c)
Omit “them” (wherever occurring), substitute “it”.
22 After subsection 12DE(2)
Insert:
(2A) A person contravenes this subsection if:
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2B) Subsection (2A) does not apply if:
(2C) Subsection (2A) does not apply to an offer that the person makes to another person if:
(2D) For the purposes of the application of the Criminal Code in relation to subsection (2A), paragraph (2A)(b) is taken to be a circumstance in which the conduct described in paragraph (2A)(a) occurs.
23 Subsection 12DE(3)
Omit “paragraph (1)(b)”, substitute “paragraphs (1)(b) and (2A)(b) and
(c)”.
24 At the end of section 12DE
Add:
(4) In this section:
interest, in relation to land, has the same meaning as in subsection
12DC(3).
25 At the end of subsection 12DM(1)
Add “or unsolicited financial products”.
Note: The heading to section 12DM is altered by adding at the end “etc.”.
26 After subsection 12DM(1A)
Insert:
(1AA) A person must not, in trade or commerce, send to another person an invoice or other document that:
Note: Failure to comply with this subsection is an offence (see section 12GB).
(1AB) Subsection (1AA) does not apply if the person had reasonable cause to believe that there was a right to the payment or charge.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1AB), see subsection 13.3(3) of the Criminal Code.
27 Subsection 12DM(1B)
After “subsection (1)”, insert “or (1AA)”.
28 Subsections 12DM(2) and (3)
Repeal the subsections.
29 After section 12DM
Insert:
12DMA Liability of recipient for unsolicited financial services etc.
If a person, in trade or commerce, supplies unsolicited financial services or unsolicited financial products to another person, the other person:
12DMB Assertion of right to payment for unauthorised advertisements
(1) A person must not assert a right to payment from another person of a charge for placing, in a publication, an advertisement, for financial services or financial products, relating to:
unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(2) A person must not send to another person an invoice or other document that:
unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an offence (see section 12GB).
(3) Subsections (1) and (2) do not apply to an advertisement that is placed in a publication published by a person who is:
Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.
(4) A person:
in full or part satisfaction of a charge for placing, in a publication, an advertisement for financial services or financial products, unless the person has authorised the publishing of the advertisement.
30 Section 12DN
Repeal the section, substitute:
12DN Application of provisions of this Division to information providers
General rule
(1) Sections 12DA, 12DB, 12DC and 12DF do not apply to a publication of matter by an information provider if:
Exception—advertisements
(2) Subsection (1) does not apply to a publication of an advertisement.
Exception—information provider connected with supply of financial services
(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, financial services (the publicised financial services), if:
(a) the publicised financial services were 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
Exception—information provider connected with sale etc. of financial products consisting of etc. interests in land
(4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of financial products that consist of, or include, interests in land, or the promotion by any means of the sale or grant of financial products that consist of, or include, interests in land (the publicised financial products), if:
Definitions
(5) In this section:
information provider means a person who carries on a business of providing information.
interest, in relation to land, has the same meaning as in subsection 12DC(3).
(6) Without limiting subsection (5), each of the following is an information provider:
31 Section 12GXC (table item 2)
Omit “, subsection 12DC(2)”.
32 Paragraphs 102(2)(e) and (2B)(b)
Omit “Trade Practices Act 1974”, substitute “Competition and
Consumer Act 2010”.
Corporations Act 2001
33 Section 206EA
Repeal the section, substitute:
206EA Disqualification under the Competition and Consumer Act 2010 etc.
A person is disqualified from managing corporations if a court order disqualifying the person from managing corporations is in force under:
34 At the end of subsection 1349(1)
Add: ; or (o) an order under section 12GLD of the ASIC Act.
35 At the end of subsection 1349(3)
Add: ; or (m) an order under section 12GLD of the ASIC Act.
36 At the end of subsection 1349(4)
Add: ; or (j) an order under section 12GLD of the ASIC Act.
Schedule 4—Enforcement of industry codes
Trade Practices Act 1974
1 Before section 51ACA
Insert:
Division 1—Preliminary
2 Subsection 51ACA(1)
Insert:
related contravention: a person engages in conduct that constitutes a related contravention of an applicable industry code, if the person:
3 Before section 51AD
Insert:
Division 2—Contravention of industry codes
4 After section 51AD
Insert:
Division 3—Public warning notices
51ADA Commission may issue a public warning notice
Commission may issue a public warning notice
(1) The Commission may issue to the public a written notice containing a warning about the conduct of a person if:
Notice is not a legislative instrument
(2) A notice issued under subsection (1) is not a legislative instrument.
Division 4—Orders to redress loss or damage suffered by non-parties etc.
51ADB Orders to redress loss or damage suffered by non-parties etc.
Orders
(1) If:
any court having jurisdiction in the matter may, on the application of the Commission, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.
Note: The orders that the court may make include all or any of the orders set out in section 51ADC.
Application for orders
Determining whether to make an order
(6) In determining whether to make an order under subsection (1) against a person referred to in subsection (2), a court may have regard to the conduct of:
in relation to the contravening conduct, since the contravention occurred.
(7) In determining whether to make an order under subsection (1), a court need not make a finding about either of the following matters:
When a non-party is bound by an order etc.
(8) If:
reduction; then:
51ADC Kinds of orders that may be made to redress loss or damage suffered by non-parties etc.
Without limiting subsection 51ADB(1), the orders that a court may make under that subsection against a person (the respondent) include all or any of the following:
Division 5—Investigation power
51ADD Commission may require corporation to provide information
51ADE Extending periods for complying with notices
51ADF Compliance with notices
A corporation that is given a notice under section 51ADD must comply with it within:
51ADG False or misleading information etc.
Division 6—Miscellaneous
5 Application provision
Division 4 of Part IVB of the Competition and Consumer Act 2010, inserted by this Schedule, does not apply in relation to contravening conduct that occurred before the commencement of this item.
Schedule 5—Other amendments of the Trade Practices Act 1974
1 Title
Omit “certain Trade Practices”, substitute “competition, fair trading and consumer protection, and for other purposes”.
2 Section 1
Omit “Trade Practices Act 1974”, substitute “Competition and
Consumer Act 2010”.
Note: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see section 10 of the Acts Interpretation Act 1901).
3 Subsection 4(1) (definition of Australian Consumer Law)
Repeal the definition, substitute:
Australian Consumer Law means Schedule 2 as applied under
Subdivision A of Division 2 of Part XI.
4 Subsection 4(1) (definition of commencing date)
Repeal the definition.
5 Subsection 4(1) (definition of consumer contract)
Repeal the definition.
6 Subsection 4(1) (definition of enforcement proceeding)
Repeal the definition.
6A Subsection 4(1) (definition of Family Court Judge)
Repeal the definition.
7 Subsection 4(1) (definition of financial product)
Repeal the definition.
8 Subsection 4(1) (definition of financial service)
Repeal the definition.
9 Subsection 4(1) (definition of infringement notice)
Repeal the definition.
10 Subsection 4(1) (definition of infringement notice compliance period)
Repeal the definition.
11 Subsection 4(1) (definition of infringement notice provision)
Repeal the definition.
12 Subsection 4(1) (definition of non-party consumer)
Repeal the definition.
13 Subsection 4(1) (definition of personal injury)
Repeal the definition, substitute:
personal injury includes:
but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.
14 Subsection 4(1) (definition of provision) (the definition inserted by item 4 of Schedule 1 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010)
Repeal the definition.
15 Subsection 4(1) (definition of rely on)
Repeal the definition.
16 Subsection 4(1) (definition of substantiation notice)
Repeal the definition.
17 Subsection 4(1) (definition of substantiation notice compliance period)
Repeal the definition.
18 Subsection 4(1)
Insert:
this Act includes Schedule 2 to the extent that it is applied under
Subdivision A of Division 2 of Part XI.
19 Subsection 4(1) (definition of unfair)
Repeal the definition.
20 Subsection 4(1) (definition of unsolicited goods)
Repeal the definition.
21 Subsection 4(1) (definition of unsolicited services)
Repeal the definition.
22 Section 4KA
Repeal the section, substitute:
4KA Definitions etc. that do not apply in Part XI or Schedule 2
Despite any other provision of this Act, sections 4 to 4K do not affect the meaning of any expression used in Part XI or Schedule 2, unless a contrary intention appears.
23 Sections 4KB and 4KC
Repeal the sections.
24 Section 4L
Omit “section 87, 87AAA or 87A”, substitute “section 51ADB or 87”.
25 Paragraphs 5(1)(b) to (ea)
Repeal the paragraphs, substitute:
26 Paragraph 5(1)(f)
Omit “, (c), (e) or (ea)”, substitute “or (c)”.
27 Subsection 5(3)
After “section 82”, insert “, or under section 236 of the Australian Consumer Law,”.
28 Subsection 5(4)
After “or (1A)”, insert “, or under subsection 237(1) or 238(1) of the Australian Consumer Law,”.
29 Paragraph 6(2)(a)
Omit “45DB, 55 or 75AZH”, substitute “45DB, or section 33 or 155 of the Australian Consumer Law,”.
30 Paragraph 6(2)(b)
Repeal the paragraph, substitute:
(b) the following provisions:
(iii) sections 31 and 43, Division 3 of Part 3-1, and sections 50, 153, 163, 164 and 168, of the Australian Consumer Law;
were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(vii) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; and
31 Paragraph 6(2)(c)
Omit “Division 2 of Part V”, substitute “Division 1 of Part 3-2 of the Australian Consumer Law”
32 Paragraph 6(2)(c)
Omit “Division 2A of that Part or in Part VA to the supply of goods”, substitute “Part 3-5 or 5-4 of the Australian Consumer Law to the supply of goods or services”.
33 Paragraph 6(2)(c)
Omit “or the supply of goods”, substitute “or the supply of goods or services”.
34 Paragraph 6(2)(ca)
Omit “Part 2”, substitute “Part 2-3”.
35 Paragraph 6(2)(h)
After “or 151AJ”, insert “or in section 229 of the Australian Consumer Law,”.
36 Subsection 6(3)
Omit “Part IVA, of Divisions 1, 1A and 1AA of Part V and of Divisions 2 and 3 of Part VC”, substitute “Parts 2-1, 2-2, 3-1 (other than Division 3), 3-3, 3-4, 4-1 (other than Division 3), 4-3, 4-4 and 5-3 of the Australian Consumer Law”.
37 Paragraph 6(3)(a)
Omit “sections 55 and 75AZH”, substitute “sections 33 and 155 of the Australian Consumer Law”.
38 Paragraph 6(3)(b)
Omit “those provisions”, substitute “the provisions of Part XI”.
39 Subsection 6(3A)
Omit “Part 2”, substitute “Part 2-3”.
40 Subsection 6(4)
Omit “Part IVA and of Division 1 (other than sections 53A and 55) and Divisions 1AAA and 1AA of Part V and of Division 2 of Part VC (other than sections 75AZD, 75AZH and 75AZO)”, substitute “Parts 2-2, 3-1 (other than sections 30 and 33), Part 4-1 (other than sections 152, 155 and 164) and 5-3 of the Australian Consumer Law”.
41 Subsection 6(5)
Omit “section 73”, substitute “sections 279, 282 and 283 of the Australian Consumer Law”.
42 Subsection 6(5)
Omit “that section has”, substitute “those sections have”.
43 Subsection 6(5)
Omit “paragraph 73(6)(a)”, substitute “paragraphs 279(3)(a), 282(2)(a) and 283(5)(a) of the Australian Consumer Law”.
44 Subsection 6(5)
Omit “the supplier had”, substitute “the supplier has”.
45 Subsection 6(6)
Repeal the subsection.
46 Section 6AA
Omit “, VC”.
47 Subsection 26(1)
Repeal the subsection, substitute:
(1) The Commission may, by resolution, delegate:
the Australian Consumer Law; to a staff member of the Australian Securities and Investments Commission within the meaning of section 5 of the Australian Securities and Investments Commission Act 2001.
Note: The heading to section 26 is altered by omitting “in relation to unconscionable conduct and consumer protection” and substituting “of certain functions and powers”.
48 Paragraph 29(1A)(b)
Omit “section 65J, 65K, 65M or 65N”, substitute “Division 3 of Part XI”.
49 Parts IVA, V, VA and VC
Repeal the Parts.
50 Subsection 75B(1)
Omit “Part IV, IVA, IVB, V or VC, or of section 95AZN or of the Australian Consumer Law”, substitute “Part IV or IVB, or of section 95AZN”.
51 Sections 76E and 76F
Repeal the sections.
Note: The heading to section 76 is altered by omitting “—restrictive trade practices etc.”.
52 Subsection 77(1)
Omit “or 76E”.
53 Subsection 77A(3) (definition of civil liability)
Omit “, or a pecuniary penalty under section 76E”.
54 Paragraph 78(a)
Repeal the paragraph, substitute:
(a) has contravened a provision of Part IV (other than section 44ZZRF or 44ZZRG); or
Note: The heading to section 78 is altered by omitting “or V or Australian Consumer Law”.
55 Subsection 79(1)
Omit “or a provision of Part VC”.
Note: The heading to section 79 is altered by omitting “or Part VC etc.”.
56 Subsections 79(2), (3) and (4)
Repeal the subsections.
57 Subsection 79(5)
Omit “or a provision of Part VC”.
58 Subsection 79(6)
Repeal the subsection.
59 Subsection 79A(1)
Repeal the subsection, substitute:
(1) If:
60 Subparagraph 79B(a)(i)
Omit “or 76E”.
61 Subparagraph 79B(a)(ii)
Omit “or Part VC”.
62 Paragraph 80(1)(a)
Repeal the paragraph, substitute:
(a) a contravention of a provision of:
63 Subsection 80(1C)
Repeal the subsection.
64 Subsection 82(1)
Omit “Subject to subsection (1AAA), a person”, substitute “A person”.
65 Subsection 82(1)
Omit “Part IV, IVA, IVB or V or section 51AC, or a provision of the Australian Consumer Law,”, substitute “Part IV or IVB”.
66 Subsections 82(1AAA) to (1B)
Repeal the subsections.
67 Subsection 82(2) (note)
Repeal the note.
68 Subsection 82(3)
Repeal the subsection.
69 Section 83
Omit “subsection 87(1A) or 87AAA(1)”, substitute “subsection 51ADB(1) or 87(1A)”.
70 Section 83
Omit “or a provision of Part VC”.
71 Section 83
Omit “Part IV, IVA, IVB, V or VC, or of the Australian Consumer Law,”, substitute “Part IV or IVB”.
72 Paragraphs 84(1)(b) and (3)(b)
Omit “Part IVA, IVB, V or VC, or a provision of the Australian Consumer Law,”, substitute “Part IVB”.
73 Section 85
Repeal the section, substitute:
85 Defences
If, in any proceedings under this Part against a person other than a body corporate, it appears to the Court that the person has or may have:
from liability to any penalty or damages on such terms as the Court thinks fit.
74 Subsection 86(1)
Omit “or has been instituted in relation to subsection 2(1) or 6(1) of the Australian Consumer Law (as applied under Division 1 of Part XI)”.
75 Subsection 86(1A)
Omit “, Part IVA, Part IVB, Division 1, 1AAA, 1A or 2A of Part V or Part VA, or a provision of the Australian Consumer Law,”, substitute “or Part IVB”.
76 Subsection 86(2)
Omit “Part IVA or IVB or Division 1, 1A or 1AA of Part V, or a provision of the Australian Consumer Law,”, substitute “Part IVB”.
77 Section 86AA
Omit “Part VA or”.
78 Paragraph 86A(1)(b)
Omit “Part IVA or IVB or Division 1, 1A or 1AA of Part V, or a provision of the Australian Consumer Law”, substitute “Part IVB”.
79 Subsections 86A(4) to (7)
Repeal the subsections.
80 Section 86B
Repeal the section.
81 Subsection 86C(4) (paragraph (a) of the definition of contravening conduct)
Repeal the paragraph, substitute:
(a) contravenes Part IV or IVB or section 95AZN; or
82 Paragraph 86D(1)(a)
Omit “or 76E”.
83 Paragraph 86D(1)(b)
Omit “or Part VC”.
84 Section 86DA
Repeal the section.
85 Subsection 86E(1B)
Repeal the subsection.
86 Subsection 86E(2)
Omit “, (1A) or (1B)”, substitute “or (1A)”.
87 Subsection 86E(3)
Omit “or (1B)”.
88 Subsection 87(1)
Omit “Subject to subsection (1AA) but without limiting”, substitute “Without limiting”.
89 Subsection 87(1)
Omit “or Part VC”.
90 Subsection 87(1)
Omit “Part IV, IVA, IVB, V or VC or of the Australian Consumer Law”, substitute “Division 2 of Part IVB”.
91 Subsection 87(1A)
Omit “Subject to subsection (1AA) but without limiting the generality of section 80 or 87AAA”, substitute “Without limiting the generality of sections 51ADB and 80”.
92 Paragraph 87(1A)(a)
Omit “Part IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “Division 2 of Part IVB”.
93 Paragraph 87(1A)(b)
Omit “, IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “or Division 2 of Part IVB”.
94 Subsections 87(1AA) to (1AC)
Repeal the subsections.
95 Paragraph 87(1B)(a)
Omit “, IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “or Division 2 of Part IVB”.
96 Subsection 87(1C)
Omit “Part IV, IVA, IVB, V or VC, or a provision of the Australian Consumer Law,”, substitute “Part IV or Division 2 of Part IVB”.
97 Subsections 87(1D), (2A) and (5A)
Repeal the subsections.
98 Subsection 87(6)
Repeal the subsection, substitute:
(6) In subsection (2), interest, in relation to land, means:
99 Subsection 87(7)
Repeal the subsection.
100 Sections 87AAA, 87AAB, 87A, 87AB, 87AC and 87CAA
Repeal the sections.
100A Subsection 87CB(1)
Omit “section 82”, substitute “section 236 of the Australian Consumer Law”.
101 Subsection 87CB(1)
Omit “section 52”, substitute “section 18 of the Australian Consumer Law”.
102 Section 87D (paragraph (a) of the definition of plaintiff)
Omit “section 75AQ or paragraph 87(1A)(b)”, substitute “paragraph 87(1A)(b), or under section 149 or paragraph 237(1)(b) of the Australian Consumer Law”.
103 Subsection 87E(1)
Omit “this Act”, substitute “the Australian Consumer Law”.
104 Paragraph 87E(1)(a)
Omit “Part IVA, to Division 1A or 2A of Part V or to Part VA”, substitute “Part 2-2, 3-3, 3-4 or 3-5, or Division 2 of Part 5-4, of the Australian Consumer Law”.
105 Parts VIC and VID
Repeal the Parts.
106 Subsection 89(6)
Omit “the Trade Practices Act 1974”, substitute “this Act”.
107 Paragraph 95(2)(b)
Omit “section 65J or 65M”, substitute “Division 3 of Part XI”.
108 Subsection 155AAA(21) (paragraph (a) of the definition of core statutory provision)
Repeal the paragraph, substitute:
(a) a provision of Part IV, VII, VIII, XI, XIB or XIC; or
109 Subsection 155AAA(21) (paragraph (c) of the definition of core statutory provision)
After “regulations”, insert “made under section 172”.
110 Subsection 155AAA(21) (at the end of the definition of core statutory provision)
Add: ; or (d) a provision of the Australian Consumer Law (other than Part 5-3); or
(e) a provision of the regulations made under section 139G so far as it relates to a provision covered by paragraph (d).
111 Paragraph 157(1)(d)
Before “section 86C”, insert “, subsection 51ADB(1),”.
112 Paragraph 157(1)(d)
Omit “, 87AAA(1) or 87A(1)”.
113 After subsection 157(1)
Insert:
(1AA) Subject to subsections (1AB) and (1A), if an application for an order against a person is made under:
Consumer Law; the Commission must, at the request of the person and upon payment of the prescribed fee (if any), give the person:
(1AB) Subsection (1AA) does not apply to a document obtained from the person, or prepared by an officer or professional adviser of the Commission.
114 Paragraph 162(1)(b)
Omit “section 65J, 65M, 90A, 93A or 151AZ”, substitute “section 90 or 93A, Division 3 of Part XI or section 151AZ”.
115 Subparagraph 163A(1)(a)(i)
Repeal the subparagraph.
116 After paragraph 163A(1)(a)
Insert: (aaa) a declaration in relation to the operation or effect of any provision of the Australian Consumer law other than Division 1 of Part 3-2 or Part 5-4; or
117 Paragraph 170(1)(a)
Omit “Part VA,”.
118 Paragraph 170(1)(a)
After “section 163A”, insert “, or under Part 3-5 or Chapter 5 of the Australian Consumer Law”.
119 Paragraph 170(1)(c)
Omit “Part VA,”.
120 Paragraph 170(1)(c)
After “section 163A”, insert “, or under Part 3-5 or Chapter 5 of the Australian Consumer Law”.
121 After paragraph 171(3)(c)
Insert: (ca) the number of search warrants issued by a judge under section 135Z or signed by a judge under section 136; and
122 Paragraphs 171(3)(da) and (db)
After “search warrants”, insert “referred to in paragraph (ca) or (d)”.
123 Paragraph 171(3)(dc)
Before “Part XID”, insert “section 133B or 133C, Division 6 of Part XI or”.
124 Subsection 172(1)
After “permitted by this Act”, insert “(other than Schedule 2)”.
125 Subsection 172(1)
After “giving effect to this Act”, insert “(other than Schedule 2)”.
126 Subsection 172(1A)
Repeal the subsection.
127 Subsection 172(2)
After “Part IV” (wherever occurring), insert “or Schedule 2”.
128 Subsection 45DA(2) of Schedule 1 (note)
Omit “Trade Practices Act 1974”, substitute “Competition and Consumer Act 2010”.
129 Paragraph 51(1)(a) of Schedule 1
Omit “Trade Practices Act 1974”, substitute “Competition and Consumer Act 2010”.
Schedule 6—Amendment of other Acts to change references to the Trade Practices Act 1974
Part 1—Bulk amendments
1 Amendment of Acts
The specified provisions of the Acts listed in this Part are amended by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Administrative Decisions (Judicial Review) Act 1977
2 Paragraphs 2(e) and (f) of Schedule 3
Agricultural and Veterinary Chemicals Code Act 1994
3 Section 100
Airports Act 1996
4 Section 4 5 Subsection 147(2) (including the note) (wherever occurring) 6 Subsection 147(3) 7 Section 148
Note: The heading to section 148 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
8 Subsection 158(2) (including the note) (wherever occurring) 9 Subsection 158(3) 10 Section 159
Note: The heading to section 159 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
11 Subsection 171(1) 12 Subsection 171(2) (definition of goods) 13 Subsection 171(2) (definition of services) 14 Subsection 171(2) (definition of supply) 15 Sections 191 and 193
Note: The heading to section 193 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
16 Section 241 17 Subsections 248(1) and (2)
Note: The heading to section 248 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Air Services Act 1995
18 Subsection 55(1)
Note: The heading to section 55 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
19 Paragraph 55(2)(a) 20 Subsections 55(3), (4) and (5)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
21 Section 5 (paragraphs (e) and (f) of the definition of loan)
22 Subsection 6(2) (table items 10, 11, 12, and 13, column headed “Provision of a designated service”)
23 Subsection 6(2) (paragraphs (b) and (c) of the cell at table item 51, column headed “Provision of a designated service”)
Australian Communications and Media Authority Act 2005
24 Subparagraph 8(1)(j)(vi)
Australian Energy Market Act 2004
25 Section 3 (definition of Australian Energy Regulator) 26 Subsection 13A(1) (notes 2, 3 and 4)
Australian Maritime Safety Authority Act 1990
27 Subsection 47(2) 28 Paragraph 47(4)(a) 29 Subsection 47(5) 30 Paragraph 47(7)(a) 31 Subsection 47(10)
Australian Postal Corporation Act 1989
32 Subsection 32(5) 33 Paragraph 32B(1)(da) 34 Subsection 32B(2) 35 Section 32D
Note: The heading to section 32D is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
36 Subsection 33A(6A)
37 Section 90E (paragraph (a) of the definition of consumer protection law)
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
Banking Act 1959
38 Section 16AA
Note: The heading to section 16AA is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
39 Section 16AU
Note: The heading to section 16AU is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Broadcasting Services Act 1992
40 Section 77
Note: The heading to section 77 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
41 Paragraphs 96(5)(a) and 97(2)(a)
42 Subsection 97(3)
43 Section 116B
Note: The heading to section 116B is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
44 Section 130
Note: The heading to section 130 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
45 Subsection 130B(8) (definition of supply)
46 Subsection 130BA(8) (definition of supply)
47 Subsection 130BB(8) (definition of supply)
Note: This item does not commence at all if Schedule 1 to the Broadcasting Legislation Amendment (Digital Television) Act 2010 does not commence. (See table item 4 in subsection 2(1) of this Act.)
48 Subsection 130F(3) (definition of supply)
Crimes Act 1914
49 Paragraph 4AB(3)(a)
Customs Act 1901
50 Subsection 269U(9)
Do Not Call Register Act 2006
51 Section 4 (definition of acquire) 52 Section 4 (definition of goods) 53 Section 4 (definition of services) 54 Section 4 (paragraph (a) of the definition of supply)
Environment Protection and Biodiversity Conservation Act 1999
55 Paragraph 524(3)(h)
Evidence and Procedure (New Zealand) Act 1994
56 Subparagraph 14(2)(a)(iv)
Federal Court of Australia Act 1976
57 Paragraph 23AB(4)(a) 58 Section 23CD (note) 59 Section 32B (paragraphs (a) and (b) of the definition of
Australian proceeding) 60 Subsection 58DB(2A)
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
Financial Sector (Business Transfer and Group Restructure) Act 1999
61 Subsections 43(6), (9) and (9A)
Health Insurance Commission (Reform and Separation of Functions) Act 1997
62 Subsection 18(10) (definition of goods) 63 Subsection 18(10) (definition of services) 64 Subsection 18(10) (definition of supply) 65 Subsection 20(8) (definition of goods) 66 Subsection 20(8) (definition of services) 67 Subsection 20(8) (definition of supply)
Insurance Act 1973
68 Section 62ZN
Note: The heading to section 62ZN is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
69 Section 62ZZV
Note: The heading to section 62ZZV is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Jurisdiction of Courts (Cross-vesting) Act 1987
70 Subsection 3(1) (paragraphs (a) and (aa) of special federal matter) 71 Subsection 3(4) 72 Paragraphs 4(4)(c) and (d)
Life Insurance Act 1995
73 Section 179A
Note: The heading to section 179A is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Liquid Fuel Emergency Act 1984
74 Section 43 (including the note) (wherever occurring)
Note: The heading to section 43 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Medibank Private Sale Act 2006
75 Subparagraphs 20(11)(b)(i) and (12)(c)(i) of Schedule 2
Northern Territory National Emergency Response Act 2007
76 Subsection 122(2)
Occupational Health and Safety Act 1991
77 Subsections 18(4), 19(3) and 20(2)
Occupational Health and Safety (Maritime Industry) Act 1993
78 Section 18
Note: The heading to section 18 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
79 Section 21
Note: The heading to section 21 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
80 Section 26
Note: The heading to section 26 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
Offshore Petroleum and Greenhouse Gas Storage Act 2006
81 Subsections 12(5), 13(4) and 14(3) of Schedule 3
Patents Act 1990
82 Paragraphs 133(2)(b) and (5)(b) and 134(2)(b)
Payment Systems (Regulation) Act 1998
83 Subsection 18A(1)
Note: The heading to section 18A is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Private Health Insurance Act 2007
84 Section 172-5 (note) 85 Section 244-20
Proceeds of Crime Act 2002
86 Section 338 (paragraph (ed) of the definition of serious offence)
Protection of the Sea (Powers of Intervention) Act 1981
87 Subsection 3(1) (definition of goods) 88 Subsection 3(1) (definition of services) 89 Subsection 3(1) (definition of supply)
Radiocommunications Act 1992
90 Paragraph 51(2)(d) 91 Section 68A 92 Subsections 71A(1) and 106A(1)
Note: The heading to section 106A is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
93 Section 114A
Note: The heading to section 114A is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
94 Section 118PF (note) 95 Sections 118PG and 312
Note: The heading to section 312 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
Social Security (Administration) Act 1999
96 Section 123TC (definition of acquire) 97 Section 123TC (definition of goods) 98 Section 123TC (definition of service) 99 Section 123TC (definition of supply)
Spam Act 2003
100 Section 4 (definition of acquire) 101 Section 4 (definition of goods) 102 Section 4 (definition of services) 103 Section 4 (paragraph (a) of the definition of supply)
Sydney Airport Demand Management Act 1997
104 Section 5A
Note: The heading to section 5A is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
Telecommunications Act 1997
105 Subsections 3(1) and (2) 106 Section 7 (definition of ACCC official) 107 Section 7 (paragraphs (c), (d) and (e) of the definition of
ACCC’s telecommunications functions and powers) 108 Section 7 (paragraph (d) of the definition of ACMA’s
telecommunications powers)
109 Subsection 61A(5) (definition of eligible service)
110 Subsection 61A(5) (definition of substantial degree of
power)
111 Subsection 61A(5) (definition of telecommunications market)
112 Section 62 (including the note) (wherever occurring)
Note: The heading to section 62 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
113 Subsection 69(7) (including the note) (wherever occurring)
114 Subsection 69B(8)
115 Subsection 70(4) (including the note) (wherever occurring)
116 Paragraph 70(5)(c)
117 Subsections 98(2), 102(6) and 103(3) (including the notes) (wherever occurring)
118 Subsection 103(4)
119 Subsection 350A(5) (including the note) (wherever occurring)
120 Subsection 367(7) (definition of engaging in conduct) 121 Subsection 384(1) (note) 122 Subsection 384(9) (definition of declared service) 123 Section 389 124 Subsection 458(6) 125 Section 483
Note: The heading to section 483 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
126 Section 506 127 Paragraphs 564(3)(d) and (e) 128 Subsection 564(3) (notes 3 and 4) 129 Paragraphs 571(3)(d) and (e) 130 Subsection 571(3) (notes 3 and 4) 131 Subsection 589(6) (paragraph (b) of the definition of this
Act) 132 Subclause 17(3) of Schedule 1 133 Clause 45 of Schedule 1 (definition of active declared
service) 134 Clause 45 of Schedule 1 (definition of eligible service) 135 Subclause 47(3) of Schedule 1 136 Clause 50 of Schedule 1 (definition of eligible service) 137 Subclauses 50A(2) and (4) of Schedule 1 138 Subclause 27(6) of Schedule 3
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Bulk amendments Part 1
Telecommunications (Consumer Protection and Service Standards) Act 1999
139 Subsection 158C(3)
Telecommunications (Interception and Access) Act 1979
140 Paragraphs 5D(5B)(a), (b), (c) and (d)
Trade Marks Act 1995
141 Section 6 (definition of Commission)
Trans-Tasman Proceedings Act 2010
142 Subparagraphs 36(2)(a)(iv) and 81(2)(a)(i) and (ii)
Note: This item does not commence at all if section 3 of the Trans-Tasman Proceedings Act 2010 does not commence. (See table item 6 in subsection 2(1) of this Act.)
Water Act 2007
143 Paragraphs 100A(b) and 100D(b)
Wheat Export Marketing Act 2008
144 Section 5 (definition of access undertaking) 145 Section 5 (definition of port terminal service) 146 Subparagraph 24(1)(d)(i) 147 Paragraph 24(2)(c) 148 Subparagraph 24(2)(d)(i) 149 Paragraph 24(3)(a)
Part 2—Other amendments
Administrative Decisions (Judicial Review) Act 1977
150 After paragraph 2(f) of Schedule 3
Insert: (fa) an Act of a State, the Australian Capital Territory or the Northern Territory that applies Schedule 2 to the Competition and Consumer Act 2010 as a law of the State or Territory;
Agricultural and Veterinary Chemicals Act 1994
151 Subsection 7(3)
Omit “section 65F of the Trade Practices Act 1974”, substitute “section 122 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth”.
Agricultural and Veterinary Chemicals (Administration) Act 1992
152 Subsection 69H(3)
Omit “section 75AL of the Trade Practices Act 1974”, substitute “section 148 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth”.
Agricultural and Veterinary Chemicals Code Act 1994
153 Section 106
Omit “Section 65R of the Trade Practices Act 1974”, substitute “Section 128 of Schedule 2 to the Competition and Consumer Act 2010, as that section applies as a law of the Commonwealth,”.
Note: The heading to section 106 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Other amendments Part 2
Airports Act 1996
154 Division 7 of Part 7 (heading)
Repeal the heading, substitute:
Division 7—Part supplements the Competition and Consumer Act 2010
155 Division 8 of Part 8 (heading)
Repeal the heading, substitute:
Division 8—Part supplements the Competition and Consumer Act 2010
156 Division 2 of Part 13 (heading)
Repeal the heading, substitute:
Division 2—Application of the access regime in Part IIIA of the Competition and Consumer Act 2010
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
157 Section 5 (definition of credit card)
Omit “section 63A of the Trade Practices Act 1974”, substitute “Schedule 2 to the Competition and Consumer Act 2010”.
158 Section 5 (definition of debit card)
Omit “section 63A of the Trade Practices Act 1974”, substitute “Schedule 2 to the Competition and Consumer Act 2010”.
Banking Act 1959
159 Subdivision G of Division 2AA of Part II (heading)
Repeal the heading, substitute:
Subdivision G—Exceptions to Part IV of the Competition and Consumer Act 2010
Carriage of Goods by Sea Act 1991
160 Section 18
Omit “Division 2 of Part V of the Trade Practices Act 1974”, substitute “Division 1 of Part 3-2 of Schedule 2 to the Competition and Consumer Act 2010, as that Division applies as a law of the Commonwealth,”.
Note: The heading to section 18 is altered by omitting “Trade Practices Act 1974” and substituting “Competition and Consumer Act 2010”.
Federal Court of Australia Act 1976
161 Section 33ZH
Repeal the section, substitute:
33ZH Special provision relating to claims under Part VI of the Competition and Consumer Act 2010 etc.
subsection applies as a law of the Commonwealth; is to be taken to be an application by the representative party and all the group members.
Food Standards Australia New Zealand Act 1991
162 Paragraph 13(1)(j)
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Other amendments Part 2
Omit “Division 1A of Part V of the Trade Practices Act 1974”, substitute “Part 3-3 of Schedule 2 to the Competition and Consumer Act 2010, as that Part applies as a law of the Commonwealth”.
163 Paragraph 13(1)(j)
Omit “that Division”, substitute “that Part”.
Insurance Act 1973
164 Division 5 of Part VC (heading)
Repeal the heading, substitute:
Division 5—Exceptions to Part IV of the Competition and Consumer Act 2010
Jurisdiction of Courts (Cross-vesting) Act 1987
165 Paragraph 10(b)
Omit “Part IVA or Division 1 or 1A of Part V of the Trade Practices Act 1974”, substitute “Part 2-2, 3-1, 3-3 or 3-4 of Schedule 2 to the Competition and Consumer Act 2010, as that Part applies as a law of the Commonwealth”.
Note: The heading to section 10 is altered by omitting “Division 1 or 1A of Part V of the Trade Practices Act” and substituting “the Australian Consumer Law”.
Motor Vehicle Standards Act 1989
166 Subsection 5(1)
Insert:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
167 Section 41
Omit “For the purpose of sections 65C (other than subsection 65C(8)) and 65F of the Trade Practices Act 1974”, substitute “For the purpose of sections 106 and 122 (other than subsection 106(7)) of the Australian Consumer Law”.
Note: The heading to section 41 is altered by omitting “Trade Practices Act” and substituting “the Australian Consumer Law”.
168 Section 41
Omit “prescribed consumer product safety standard”, substitute “safety standard (within the meaning of the Australian Consumer Law)”.
National Transmission Network Sale Act 1998
169 Section 3 (definition of access seeker)
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
170 Section 3
Insert:
Competition and Consumer Act means the Competition and Consumer Act 2010.
171 Section 3 (paragraphs (a) and (b) of the definition of telecommunications access regime)
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
172 Section 3 (definition of Trade Practices Act)
Repeal the definition.
173 Paragraphs 13(2)(a) and (c)
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
174 Subsections 16(1), (2), (3) and (4) and 17(1), (2) and (3)
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
175 Section 25
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
Note: The heading to section 25 is altered by omitting “Trade Practices Act” and substituting “Competition and Consumer Act”.
Amendment of other Acts to change references to the Trade Practices Act 1974 Schedule 6 Other amendments Part 2
Olympic Insignia Protection Act 1987
176 Subsection 2(1)
Insert:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
177 Subsection 9A(1)
Omit “Trade Practices Act 1974”, substitute “Australian Consumer Law”.
Note: The heading to section 9A is altered by omitting “Trade Practices Act 1974” and substituting “Australian Consumer Law”.
178 Subsection 9A(1)
Omit “section 52 of that Act”, substitute “section 18 of the Australian Consumer Law”.
179 Paragraph 9A(1)(a)
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g) of the Australian Consumer Law”.
180 Paragraph 9A(1)(b)
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h) of the Australian Consumer Law”.
181 Subsection 9A(2)
Omit “Trade Practices Act 1974”, substitute “Australian Consumer Law”.
182 Subsection 9A(2)
Omit “that Act”, substitute “the Australian Consumer Law”.
183 Subsection 48(2)
Omit “Trade Practices Act 1974”, substitute “Australian Consumer Law”.
184 Subsection 48(2)
Omit “section 52 of that Act”, substitute “section 18 of the Australian Consumer Law”.
185 Paragraph 48(2)(a)
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g) of the Australian Consumer Law”.
186 Paragraph 48(2)(b)
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h) of the Australian Consumer Law”.
187 Subsection 48(4)
Omit “Trade Practices Act 1974”, substitute “Australian Consumer Law”.
188 Subsection 48(4)
Omit “that Act”, substitute “the Australian Consumer Law”.
Radiocommunications Act 1992
189 Subdivision D of Division 1 of Part 3.2 (heading)
Repeal the heading, substitute:
Subdivision D—Rules about section 50 and related provisions of the Competition and Consumer Act
Wheat Export Marketing Act 2008
190 Section 5
Insert:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
191 Subparagraphs 13(1)(c)(x) and 19(1)(c)(x)
Omit “or section 76 of the Trade Practices Act 1974”, substitute “, section 76 of the Competition and Consumer Act 2010 or section 224 of the Australian Consumer Law”.
Schedule 7—Transitional matters
1 Definitions
In this Schedule:
Australian Consumer Law has the same meaning as in Part XI of the Competition and Consumer Act 2010 as substituted by Schedule 2 to this Act.
Commonwealth Minister has the same meaning as in the Australian Consumer Law.
2 Declarations of goods to be unsafe goods
A notice under subsection 65C(5) of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if:
3 Permanent bans
A notice under subsection 65C(7) of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a permanent ban imposed under section 114 of the Australian Consumer Law.
4 Prescribed consumer product safety standards
A prescribed consumer product safety standard under section 65C of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a safety standard made under section 104 of the Australian Consumer Law.
5 Prescribed consumer product information standards
A prescribed consumer product information standard under section 65D of the Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were an information standard made under section 134 of the Australian Consumer Law.
6 Acts or omissions that occurred before commencement
7 Proceedings already commenced
8 Unfair contract terms
9 Requests for itemised bills
Section 101 of the Australian Consumer Law does not apply in relation to a supply of services to the extent that the services were supplied before the commencement of this item.
10 Pecuniary penalties—having regard to previous findings
The reference in paragraph 224(2)(c) of the Australian Consumer Law to proceedings under Chapter 4 or Part 5-2 of Schedule 2 includes a reference to proceedings, commenced before the commencement of this item, under or in relation to:
11 Regulations relating to professional standards laws
Regulations made for the purposes of section 87AB of the Trade Practices Act 1974 that were in force immediately before the commencement of this item have effect, after the commencement of this item, as if they had been made for the purposes of section 137 of that Act as amended by this Act.
12 General power for regulations to deal with transitional matters
The Governor-General may make regulations prescribing matters of a transitional, application or saving nature in relation to the amendments and repeals made by the Schedules to this Act.
[Minister’s second reading speech made in— House of Representatives on 17 March 2010 Senate on 24 June 2010]
(74/10)