贸易实践修正案法（澳大利亚消费者法）2010（第2号）， 澳大利亚

Schedule 2—Application of the Australian Consumer Law 262 Trade Practices Act 1974 262

Schedule 3—Amendment of the Corporations legislation 337 Australian Securities and Investments Commission Act 2001 337 Corporations Act 2001 349

Schedule 4—Enforcement of industry codes 351 Trade Practices Act 1974 351

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

The Parliament of Australia enacts:

Schedule 1—The Australian Consumer Law

Part 2-1—Misleading or deceptive conduct

18 Misleading or deceptive conduct 19 Application of this Part to information providers

Part 2-2—Unconscionable conduct

20 Unconscionable conduct within the meaning of the unwritten law 21 Unconscionable conduct

22 Unconscionable conduct in business transactions

Part 2-3—Unfair contract terms

23 Unfair terms of consumer contracts 24 Meaning of unfair 25 Examples of unfair terms 26 Terms that define main subject matter of consumer contracts etc.

are unaffected 27 Standard form contracts 28 Contracts to which this Part does not apply

Division 1—False or misleading representations etc.

29 False or misleading representations about goods or services 30 False or misleading representations about sale etc. of land 31 Misleading conduct relating to employment 32 Offering rebates, gifts, prizes etc. 33 Misleading conduct as to the nature etc. of goods 34 Misleading conduct as to the nature etc. of services 35 Bait advertising 36 Wrongly accepting payment 37 Misleading representations about certain business activities 38 Application of provisions of this Division to information providers

Division 2—Unsolicited supplies

39 Unsolicited cards etc. 40 Assertion of right to payment for unsolicited goods or services 41 Liability etc. of recipient for unsolicited goods 42 Liability of recipient for unsolicited services 43 Assertion of right to payment for unauthorised entries or

advertisements

Division 3—Pyramid schemes

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

Part 3-3—Safety of consumer goods and product related services Division 1—Safety standards

104 Making safety standards for consumer goods and product related services 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

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.

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

Part 3-4—Information standards

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

Division 3—Miscellaneous

150 Application of all or any provisions of this Part etc. not to be excluded or modified

Part 4-1—Offences relating to unfair practices Division 1—False or misleading representations etc.

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

Division 3—Pyramid schemes

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

Part 4-2—Offences relating to consumer transactions Division 1—Consumer guarantees

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

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 195 Supplying etc. product related services that do not comply with safety standards 196 Requirement to nominate a safety standard

Division 2—Bans on consumer goods and product related services

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

Part 4-4—Offences relating to information standards

203 Supplying etc. goods that do not comply with information standards 204 Supplying etc. services that do not comply with information standards

Part 4-5—Offences relating to substantiation notices

205 Compliance with substantiation notices 206 False or misleading information etc.

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 210 Supplying goods acquired for the purpose of re-supply 211 Supplying services acquired for the purpose of re-supply

Part 4-7—Miscellaneous

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

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. 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

Part 5-2—Remedies Division 1—Pecuniary penalties

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

Part 5-3—Country of origin representations

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

Part 5-4—Remedies relating to guarantees Division 1—Action against suppliers

Division 2—Action for damages against manufacturers of goods

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

1 Application of this Schedule

This Schedule applies to the extent provided by:

(a)

Part XI of the Competition and Consumer Act; or

(b)

an application law.

2 Definitions

(1) In this Schedule:

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. acceptable quality: see sections 54(2) to (7). ACN has the meaning given by section 9 of the Corporations Act

2001. acquire includes:

(a)

in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase; and

(b)

in relation to services—accept. Note: Section 5 deals with when receipt of a donation is an acquisition.

adverse publicity order: see section 247(2). affected person, in relation to goods, means:

(a)

a consumer who acquires the goods; or

(b)

a person who acquires the goods from the consumer (other than for the purpose of re-supply); or

(c)

a person who derives title to the goods through or under the consumer.

agreement document: see section 78(2). 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.

3 Meaning of consumer

Acquiring goods as a consumer

(1)

A person is taken to have acquired particular goods as a consumer if, and only if:

(a)

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

(i)

$40,000; or

(ii)

if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or

(b)

the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(c)

the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.

(2)

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

(a)

for the purpose of re-supply; or

(b)

for the purpose of using them up or transforming them, in trade or commerce:

(i)

in the course of a process of production or manufacture; or

(ii)

in the course of repairing or treating other goods or fixtures on land.

Acquiring services as a consumer

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

(a)

the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:

(i)

$40,000; or

(ii)

if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or

(b)

the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.

Amounts paid or payable for purchases

(4)

For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies.

(5)

For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be:

(a)

if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply—the price at which they could have been purchased from the supplier; or

(b)

if:

(i)

paragraph (a) does not apply; but

(ii)

at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;

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

(c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply—the value of the goods or services at that time.

Amounts paid or payable for other acquisitions

(6)

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

(7)

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

(a)

goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but

(b)

at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply;

the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier.

(8)

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

(9)

If:

Amounts paid or payable for obtaining credit

(a)

a person obtains credit in connection with the acquisition of goods or services by him or her; and

(b)

the amount paid or payable by him or her for the goods or

services is increased because he or she so obtains credit; obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase.

Presumption that persons are consumers

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

Mixed supplies

(11) A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services.

Supplies to consumers

(12) In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer.

4 Misleading representations with respect to future matters

(1) If:

(a)

a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

(b)

the person does not have reasonable grounds for making the

representation; the representation is taken, for the purposes of this Schedule, to be misleading.

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

(a)

a party to the proceeding; or

(b)

any other person; the party or other person is taken not to have had reasonable

grounds for making the representation, unless evidence is adduced to the contrary.

(3)

To avoid doubt, subsection (2) does not:

(a)

have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

(b)

have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

(4)

Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:

(a)

a misleading representation; or

(b)

a representation that is misleading in a material particular; or

(c)

conduct that is misleading or is likely or liable to mislead; and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely

because the person has reasonable grounds for making the representation.

5 When donations are treated as supplies or acquisitions

(1)

For the purposes of this Schedule, other than Parts 3-3, 3-4, 4-3 and 4-4:

(a)

a donation of goods or services is not treated as a supply of the goods or services unless the donation is for promotional purposes; and

(b)

receipt of a donation of goods or services is not treated as an acquisition of the goods or services unless the donation is for promotional purposes.

(2)

For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:

(a)

any donation of goods or services is treated as a supply of the goods or services; and

(b)

receipt of any donation of goods or services is treated as an acquisition of the goods or services.

6 Related bodies corporate

(1)

A body corporate is taken to be related to another body corporate if the bodies corporate would, under section 4A(5) of the Competition and Consumer Act, be deemed to be related to each other.

(2)

In proceedings under this Schedule, it is presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.

7 Meaning of manufacturer

(1) A manufacturer includes the following:

(a)

a person who grows, extracts, produces, processes or assembles goods;

(b)

a person who holds himself or herself out to the public as the manufacturer of goods;

(c)

a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person;

(d)

a person (the first person) who causes or permits another person, in connection with:

(i)

the supply or possible supply of goods by that other person; or

(ii)

the promotion by that other person by any means of the

supply or use of goods; to hold out the first person to the public as the manufacturer of the goods;

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

(i)

the person is not the manufacturer of the goods; and

(ii)

at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.

(2)

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

(a)

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

(i)

it is woven in, impressed on, worked into or annexed or affixed to the goods; or

(ii)

it is applied to a covering, label, reel or thing in or with which the goods are supplied; and

(b)

if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods.

(3)

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

8 Goods affixed to land or premises

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

9 Meaning of safety defect in relation to goods

(1)

For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect.

(2)

In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:

(a)

the manner in which, and the purposes for which, they have been marketed; and

(b)

their packaging; and

(c)

the use of any mark in relation to them; and

(d)

any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and

(e)

what might reasonably be expected to be done with or in relation to them; and

(f)

the time when they were supplied by their manufacturer.

(3)

An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.

(4)

An inference that goods have a safety defect is not to be made only because:

(a)

there was compliance with a Commonwealth mandatory standard for them; and

(b)

that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.

10 Asserting a right to payment

(1) A person is taken to assert a right to payment from another person if the person:

(a)

makes a demand for the payment or asserts a present or prospective right to the payment; or

(b)

threatens to bring any legal proceedings with a view to obtaining the payment; or

(c)

places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or

(d)

invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or

(e)

sends any invoice or other document that:

(i)

states the amount of the payment; or

(ii)

sets out the price of unsolicited goods or unsolicited services; or

(iii) sets out the charge for placing, in a publication, an entry

or advertisement; and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.

(2) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established.

11 References to acquisition, supply and re-supply

In this Schedule:

(a)

a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and

(b)

a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and

(c)

a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and

(d)

a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and

(e)

a reference to the re-supply of goods acquired from a person includes a reference to:

(i)

a supply of the goods to another person in an altered form or condition; and

(ii)

a supply to another person of goods in which the first-mentioned goods have been incorporated; and

(f)

a reference to the re-supply of services (the original services) acquired from a person (the original supplier) includes a reference to:

(i)

a supply of the original services to another person in an altered form or condition; and

(ii)

a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.

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

In this Schedule:

(a)

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

(b)

a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and

(c)

a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.

15 Contraventions of this Schedule

Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:

(a)

section 23(1); or

(b)

a provision of Division 1 of Part 3-2 (other than section 66(2)); or

(c)

a provision of Part 3-5.

16 Severability

(1)

If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable.

(2)

This section has effect subject to any order made under Division 4 of Part 5-2.

17 References to provisions in this Schedule

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

Part 2-1—Misleading or deceptive conduct

Part 2-2—Unconscionable conduct

Part 2-3—Unfair contract terms

Part 3-1—Unfair practices

Division 1—False or misleading representations etc.

29 False or misleading representations about goods or services

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a)

make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

(b)

make a false or misleading representation that services are of a particular standard, quality, value or grade; or

(c)

make a false or misleading representation that goods are new; or

(d)

make a false or misleading representation that a particular person has agreed to acquire goods or services; or

(e)

make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or

(f)

make a false or misleading representation concerning:

(i)

a testimonial by any person; or

(ii)

a representation that purports to be such a testimonial; relating to goods or services; or

(g)

make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

(h)

make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

(i)

make a false or misleading representation with respect to the price of goods or services; or

(j)

make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or

(k)

make a false or misleading representation concerning the place of origin of goods; or

(l)

make a false or misleading representation concerning the need for any goods or services; or

(m)

make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); or

(n)

make a false or misleading representation concerning a requirement to pay for a contractual right that:

(i)

is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); and

(ii)

a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

Note 1: A pecuniary penalty may be imposed for a contravention of this subsection.

Note 2: For rules relating to representations as to the country of origin of goods, see Part 5-3.

(2)

For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in subsection (1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.

(3)

To avoid doubt, subsection (2) does not:

(a)

have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or

(b)

have the effect of placing on any person an onus of proving that the representation is not misleading.

30 False or misleading representations about sale etc. of land

(1) A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:

(a)

make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

(b)

make a false or misleading representation concerning the nature of the interest in the land; or

(c)

make a false or misleading representation concerning the price payable for the land; or

(d)

make a false or misleading representation concerning the location of the land; or

(e)

make a false or misleading representation concerning the characteristics of the land; or

(f)

make a false or misleading representation concerning the use to which the land is capable of being put or may lawfully be put; or

(g)

make a false or misleading representation concerning the existence or availability of facilities associated with the land.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) This section does not affect the application of any other provision of Part 2-1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.

31 Misleading conduct relating to employment

A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:

(a)

the availability, nature, terms or conditions of the employment; or

(b)

any other matter relating to the employment.

Note: A pecuniary penalty may be imposed for a contravention of this section.

32 Offering rebates, gifts, prizes etc.

(1) A person must not, in trade or commerce, offer any rebate, gift, prize or other free item with the intention of not providing it, or of not providing it as offered, in connection with:

(a)

the supply or possible supply of goods or services; or

(b)

the promotion by any means of the supply or use of goods or services; or

(c)

the sale or grant, or the possible sale or grant, of an interest in land; or

(d)

the promotion by any means of the sale or grant of an interest in land.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If a person offers any rebate, gift, prize or other free item in connection with:

(a)

the supply or possible supply of goods or services; or

(b)

the promotion by any means of the supply or use of goods or services; or

(c)

the sale or grant, or the possible sale or grant, of an interest in land; or

(d)

the promotion by any means of the sale or grant of an interest

in land; the person must, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, provide the rebate, gift, prize or other free item in accordance with the offer.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3)

Subsection (2) does not apply if:

(a)

the person’s failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person’s control; and

(b)

the person took reasonable precautions and exercised due diligence to avoid the failure.

(4)

Subsection (2) does not apply to an offer that the person makes to another person if:

(a)

the person offers to the other person a different rebate, gift, prize or other free item as a replacement; and

(b)

the other person agrees to receive the different rebate, gift, prize or other free item.

(5)

This section does not affect the application of any other provision of Part 2-1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.

33 Misleading conduct as to the nature etc. of goods

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.

Note: A pecuniary penalty may be imposed for a contravention of this section.

34 Misleading conduct as to the nature etc. of services

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.

Note: A pecuniary penalty may be imposed for a contravention of this section.

35 Bait advertising

(1) A person must not, in trade or commerce, advertise goods or services for supply at a specified price if:

(a)

there are reasonable grounds for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable, having regard to:

(i)

the nature of the market in which the person carries on business; and

(ii)

the nature of the advertisement; and

(b)

the person is aware or ought reasonably to be aware of those grounds.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person who, in trade or commerce, advertises goods or services for supply at a specified price must offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to:

(a)

the nature of the market in which the person carries on business; and

(b)

the nature of the advertisement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

36 Wrongly accepting payment

(1) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance, the person intends not to supply the goods or services.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance, the person intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A person must not, in trade or commerce, accept payment or other consideration for goods or services if, at the time of the acceptance:

(a)

there are reasonable grounds for believing that the person will not be able to supply the goods or services:

(i)

within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or

(ii)

if no period is specified at or before that time—within a reasonable time; and

(b)

the person is aware or ought reasonably to be aware of those grounds.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4) A person who, in trade or commerce, accepts payment or other consideration for goods or services must supply all the goods or services:

(a)

within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or

(b)

if no period is specified at or before that time—within a reasonable time.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(5)

Subsection (4) does not apply if:

(a)

the person’s failure to supply all the goods or services within the period, or within a reasonable time, was due to the act or omission of another person, or to some other cause beyond the person’s control; and

(b)

the person took reasonable precautions and exercised due diligence to avoid the failure.

(6)

Subsection (4) does not apply if:

(a)

the person offers to supply different goods or services as a replacement to the person (the customer) to whom the original supply was to be made; and

(b)

the customer agrees to receive the different goods or services.

(7)

Subsections (1), (2), (3) and (4) apply whether or not the payment or other consideration that the person accepted represents the whole or a part of the payment or other consideration for the supply of the goods or services.

37 Misleading representations about certain business activities

(1) A person must not, in trade or commerce, make a representation that:

(a)

is false or misleading in a material particular; and

(b)

concerns the profitability, risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from a person’s place of residence.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, make a representation that:

(a)

is false or misleading in a material particular; and

(b)

concerns the profitability, risk or any other material aspect of any business activity:

(i)

that the person invites (whether by advertisement or otherwise) other persons to engage or participate in, or to offer or apply to engage or participate in; and

(ii)

that requires the performance of work by other persons, or the investment of money by other persons and the performance by them of work associated with the investment.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

38 Application of provisions of this Division to information providers

(1)

Sections 29, 30, 33, 34 and 37 do not apply to a publication of matter by an information provider if:

(a)

in any case—the information provider made the publication in the course of carrying on a business of providing information; or

(b)

if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992—the publication was by way of a radio or television broadcast by the information provider.

(2)

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

(3)

Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services), if:

(a)

the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

(b)

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or

(c)

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies

goods or services of the same kind as the publicised goods or services.

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

(a)

the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

(b)

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or

(c)

the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.

Division 2—Unsolicited supplies

39 Unsolicited cards etc.

(1) A person must not send a credit card or a debit card, or an article that may be used as a credit card and a debit card, to another person except:

(a)

pursuant to a written request by the person who will be under a liability to the person who issued the card or article in respect of the use of the card or article; or

(b)

in renewal or replacement of, or in substitution for:

(i)

a card or article of the same kind previously sent to the other person pursuant to a written request by the person who was under a liability, to the person who issued the card previously so sent, in respect of the use of that card; or

(ii)

a card or article of the same kind previously sent to the other person and used for a purpose for which it was intended to be used.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

Subsection (1) does not apply unless the card or article is sent by or on behalf of the person who issued it.

(3)

A person must not take any action that enables another person who has a credit card to use the card as a debit card, except in accordance with the other person’s written request.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4) A person must not take any action that enables another person who has a debit card to use the card as a credit card, except in accordance with the other person’s written request.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(5) A credit card is an article that is one or more of the following:

(a)

an article of a kind commonly known as a credit card;

(b)

a similar article intended for use in obtaining cash, goods or services on credit;

(c)

an article of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit;

and includes an article that may be used as an article referred to in paragraph (a), (b) or (c).

(6) A debit card is:

(a)

an article intended for use by a person in obtaining access to an account that is held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services; or

(b)

an article that may be used as an article referred to in paragraph (a).

40 Assertion of right to payment for unsolicited goods or services

(1) A person must not, in trade or commerce, assert a right to payment from another person for unsolicited goods unless the person has reasonable cause to believe that there is a right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, assert a right to payment from another person for unsolicited services unless the person has reasonable cause to believe that there is a right to the payment.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A person must not, in trade or commerce, send to another person an invoice or other document that:

(a)

states the amount of a payment, or sets out the charge, for supplying unsolicited goods or unsolicited services; and

(b)

does not contain a warning statement that complies with the

requirements set out in the regulations; unless the person has reasonable cause to believe that there is a right to the payment or charge.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4) In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person had reasonable cause to believe that there was a right to the payment or charge.

41 Liability etc. of recipient for unsolicited goods

(1)

If a person, in trade or commerce, supplies unsolicited goods to another person, the other person:

(a)

is not liable to make any payment for the goods; and

(b)

is not liable for loss of or damage to the goods, other than loss or damage resulting from the other person doing a wilful and unlawful act in relation to the goods during the recovery period.

(2)

If a person sends, in trade or commerce, unsolicited goods to another person:

(a)

neither the sender nor any person claiming under the sender is entitled, after the end of the recovery period, to take action for the recovery of the goods from the other person; and

(b)

at the end of the recovery period, the goods become, by force of this section, the property of the other person freed and discharged from all liens and charges of any description.

(3)

However, subsection (2) does not apply to or in relation to unsolicited goods sent to a person if:

(a)

the person has, at any time during the recovery period, unreasonably refused to permit the sender or the owner of the goods to take possession of the goods; or

(b)

the sender or the owner of the goods has within the recovery period taken possession of the goods; or

(c)

the goods were received by the person in circumstances in which the person knew, or might reasonably be expected to have known, that the goods were not intended for him or her.

(4)

The recovery period is whichever of the following periods ends first:

(a)

the period of 3 months starting on the day after the day on which the person received the goods;

(b)

if the person who receives the unsolicited goods gives notice with respect to the goods to the supplier or sender in

accordance with subsection (5)—the period of one month starting on the day after the day on which the notice is given.

(5) A notice under subsection (4)(b):

(a)

must be in writing; and

(b)

must state the name and address of the person who received the goods; and

(c)

must state the address at which possession may be taken of the goods, if it is not the address of the person; and

(d)

must contain a statement to the effect that the goods are unsolicited goods.

42 Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies unsolicited services to another person, the other person:

(a)

is not liable to make any payment for the services; and

(b)

is not liable for loss or damage as a result of the supply of the services.

43 Assertion of right to payment for unauthorised entries or advertisements

(1) A person must not assert a right to payment from another person of a charge for placing, in a publication, an entry or advertisement relating to:

(a)

the other person; or

(b)

the other person’s profession, business, trade or occupation; unless the person knows, or has reasonable cause to believe, that

the other person authorised the placing of the entry or advertisement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not send to another person an invoice or other document that:

(a)

states the amount of a payment, or sets out the charge, for placing, in a publication, an entry or advertisement relating to:

(i)

the other person; or

(ii)

the other person’s profession, business, trade or occupation; and

(b)

does not contain a warning statement that complies with the

requirements set out in the regulations; unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3)

Subsections (1) and (2) do not apply to an entry or advertisement that is placed in a publication published by a person who is:

(a)

the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or

(b)

a body corporate related to such a publisher; or

(c)

the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or

(d)

a person specified in the regulations.

(4)

A person:

(a)

is not liable to make any payment to another person; and

(b)

is entitled to recover by action in a court against another

person any payment made by the person to the other person; in full or part satisfaction of a charge for placing, in a publication, an entry or advertisement, unless the person authorised the placing of the entry or advertisement.

(5)

A person is not taken for the purposes of this section to have authorised the placing of the entry or advertisement, unless:

(a)

a document authorising the placing of the entry or advertisement has been signed by the person or by another person authorised by him or her; and

(b)

a copy of the document has been given to the person before the right to payment of a charge for the placing of the entry or advertisement is asserted; and

(c)

the document specifies:

(i)

the name and address of the person publishing the entry or advertisement; and

(ii)

particulars of the entry or advertisement; and

(iii) the amount of the charge for the placing of the entry or advertisement, or the basis on which the charge is, or is to be, calculated.

(6)

In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person knew or had reasonable cause to believe that the person against whom a right to payment was asserted had authorised the placing of the entry or advertisement.

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:

(a)

to establish or promote the scheme (whether alone or together with another person); or

(b)

to take part in the scheme in any capacity (whether or not as an employee or agent of a person who establishes or promotes the scheme, or who otherwise takes part in the scheme).

45 Meaning of pyramid scheme

(1)

A pyramid scheme is a scheme with both of the following characteristics:

(a)

to take part in the scheme, some or all new participants must provide, to another participant or participants in the scheme, either of the following (a participation payment):

(i)

a financial or non-financial benefit to, or for the benefit of, the other participant or participants;

(ii)

a financial or non-financial benefit partly to, or for the benefit of, the other participant or participants and partly to, or for the benefit of, other persons;

(b)

the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled, in relation to the introduction to the scheme of further new participants, to be provided with either of the following (a recruitment payment):

(i)

a financial or non-financial benefit to, or for the benefit of, new participants;

(ii)

a financial or non-financial benefit partly to, or for the benefit of, new participants and partly to, or for the benefit of, other persons.

(2)

A new participant includes a person who has applied, or been invited, to participate in the scheme.

(3)

A scheme may be a pyramid scheme:

(a)

no matter who holds out to new participants the prospect of entitlement to recruitment payments; and

(b)

no matter who is to make recruitment payments to new participants; and

(c)

no matter who is to make introductions to the scheme of further new participants.

(4)

A scheme may be a pyramid scheme even if it has any or all of the following characteristics:

(a)

the participation payments may (or must) be made after the new participants begin to take part in the scheme;

(b)

making a participation payment is not the only requirement for taking part in the scheme;

(c)

the holding out of the prospect of entitlement to recruitment payments does not give any new participant a legally enforceable right;

(d)

arrangements for the scheme are not recorded in writing (whether entirely or partly);

(e)

the scheme involves the marketing of goods or services (or both).

46 Marketing schemes as pyramid schemes

(1)

To decide, for the purpose of this Schedule, whether a scheme that involves the marketing of goods or services (or both) is a pyramid scheme, a court must have regard to the following matters in working out whether participation payments under the scheme are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments:

(a)

whether the participation payments bear a reasonable relationship to the value of the goods or services that

participants are entitled to be supplied with under the scheme (as assessed, if appropriate, by reference to the price of comparable goods or services available elsewhere);

(b)

the emphasis given in the promotion of the scheme to the entitlement of participants to the supply of goods or services by comparison with the emphasis given to their entitlement to recruitment payments.

(2)

Subsection (1) does not limit the matters to which the court may have regard in working out whether participation payments are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments.

Division 4—Pricing

47 Multiple pricing

(1) A person must not, in trade or commerce, supply goods if:

(a)

the goods have more than one displayed price; and

(b)

the supply takes place for a price that is not the lower, or lowest, of the displayed prices.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A displayed price for goods is a price for the goods, or any representation that may reasonably be inferred to be a representation of a price for the goods:

(a)

that is annexed or affixed to, or is written, printed, stamped or located on, or otherwise applied to, the goods or any covering, label, reel or thing used in connection with the goods; or

(b)

that is used in connection with the goods or anything on which the goods are mounted for display or exposed for supply; or

(c)

that is determined on the basis of anything encoded on or in relation to the goods; or

(d)

that is published in relation to the goods in a catalogue available to the public if:

(i)

a time is specified in the catalogue as the time after which the goods will not be sold at that price and that time has not passed; or

(ii)

in any other case—the catalogue may reasonably be regarded as not out-of-date; or

(e)

that is in any other way represented in a manner from which it may reasonably be inferred that the price or representation is applicable to the goods;

and includes such a price or representation that is partly obscured by another such price or representation that is written, stamped or located partly over that price or representation.

(3) If:

(a)

a price or representation is included in a catalogue; and

(b)

the catalogue is expressed to apply only to goods supplied at

a specified location, or in a specified region; the price or representation is taken, for the purposes of subsection (2)(d), not to have been made in relation to supply of the goods at a different location, or in a different region, as the case may be.

(4)

Despite subsection (2), a price or representation is not a displayed price for goods if:

(a)

the price or representation is wholly obscured by another such price or representation that is written, stamped or located wholly over that price or representation; or

(b)

the price or representation:

(i)

is expressed as a price per unit of mass, volume, length or other unit of measure; and

(ii)

is presented as an alternative means of expressing the price for supply of the goods that is a displayed price for the goods; or

(c)

the price or representation is expressed as an amount in a currency other than Australian currency; or

(d)

the price or representation is expressed in a way that is unlikely to be interpreted as an amount of Australian currency.

(5)

Despite subsection (2), a displayed price for goods that is a displayed price because it has been published in a catalogue or advertisement ceases to be a displayed price for the goods if:

(a)

the displayed price is retracted; and

(b)

the retraction is published in a manner that has at least a similar circulation or audience as the catalogue or advertisement.

48 Single price to be specified in certain circumstances

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

(a)

the supply, or possible supply, to another person of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(b)

the promotion by any means of the supply to another person, or of the use by another person, of goods or services of a kind

ordinarily acquired for personal, domestic or household use

or consumption;

make a representation with respect to an amount that, if paid,

would constitute a part of the consideration for the supply of the

goods or services unless the person also specifies, in a prominent

way and as a single figure, the single price for the goods or

services.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

A person is not required to include, in the single price for goods, a charge that is payable in relation to sending the goods from the supplier to the other person.

(3)

However, if:

(a)

the person does not include in the single price a charge that is payable in relation to sending the goods from the supplier to the other person; and

(b)

the person knows, at the time of the representation, the minimum amount of a charge in relation to sending the goods from the supplier to the other person that must be paid by the other person;

the person must not make the representation referred to in subsection (1) unless the person also specifies that minimum amount.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4)

Subsection (1) does not apply if the representation is made exclusively to a body corporate.

(5)

For the purposes of subsection (1), the person is taken not to have specified a single price for the goods or services in a prominent way unless the single price is at least as prominent as the most prominent of the parts of the consideration for the supply.

(6)

Subsection (5) does not apply in relation to services to be supplied under a contract if:

(a)

the contract provides for the supply of the services for the term of the contract; and

(b)

the contract provides for periodic payments for the services to be made during the term of the contract; and

(c)

if the contract also provides for the supply of goods—the goods are directly related to the supply of the services.

(7)

The single price is the minimum quantifiable consideration for the supply of the goods or services at the time of the representation, including each of the following amounts (if any) that is quantifiable at that time:

(a)

a charge of any description payable to the person making the representation by another person (other than a charge that is payable at the option of the other person);

(b)

the amount which reflects any tax, duty, fee, levy or charge imposed on the person making the representation in relation to the supply;

(c)

any amount paid or payable by the person making the representation in relation to the supply with respect to any tax, duty, fee, levy or charge if:

(i)

the amount is paid or payable under an agreement or arrangement made under a law of the Commonwealth, a State or a Territory; and

(ii)

the tax, duty, fee, levy or charge would have otherwise been payable by another person in relation to the supply.

Example 1: 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:

(a)

giving the person the names of prospective customers; or

(b)

otherwise assisting the person to supply goods or services to

other consumers; if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.

Note: A pecuniary penalty may be imposed for a contravention of this section.

50 Harassment and coercion

(1) A person must not use physical force, or undue harassment or coercion, in connection with:

(a)

the supply or possible supply of goods or services; or

(b)

the payment for goods or services; or

(c)

the sale or grant, or the possible sale or grant, of an interest in land; or

(d)

the payment for an interest in land.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) Subsections (1)(c) and (d) do not affect the application of any other provision of Part 2-1 or this Part in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.

Part 3-2—Consumer transactions

Division 1—Consumer guarantees

Subdivision A—Guarantees relating to the supply of goods

51 Guarantee as to title

(1)

If a person (the supplier) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer.

(2)

Subsection (1) does not apply to a supply (a supply of limited title) if an intention that the supplier of the goods should transfer only such title as the supplier, or another person, may have:

(a)

appears from the contract for the supply; or

(b)

is to be inferred from the circumstances of that contract.

(3)

This section does not apply if the supply is a supply by way of hire or lease.

52 Guarantee as to undisturbed possession

(1) If:

(a)

a person (the supplier) supplies goods to a consumer; and

(b)

the supply is not a supply of limited title;

there is a guarantee that the consumer has the right to undisturbed possession of the goods.

(2)

Subsection (1) does not apply to the extent that the consumer’s undisturbed possession of the goods may be lawfully disturbed by a person who is entitled to the benefit of any security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply.

(3)

If:

(a)

a person (the supplier) supplies goods to a consumer; and

(b)

the supply is a supply of limited title;

there is a guarantee that the following persons will not disturb the consumer’s possession of the goods:

(c)

the supplier;

(d)

if the parties to the contract for the supply intend that the supplier should transfer only such title as another person may have—that other person;

(e)

anyone claiming through or under the supplier or that other person (otherwise than under a security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply).

(4) This section applies to a supply by way of hire or lease only for the period of the hire or lease.

53 Guarantee as to undisclosed securities etc.

(1)

If:

(a)

a person (the supplier) supplies goods to a consumer; and

(b)

the supply is not a supply of limited title; there is a guarantee that:

(c)

the goods are free from any security, charge or encumbrance:

(i)

that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or

(ii)

that was not created by or with the express consent of the consumer; and

(d)

the goods will remain free from such a security, charge or encumbrance until the time when the property in the goods passes to the consumer.

(2)

A supplier does not fail to comply with the guarantee only because of the existence of a floating charge over the supplier’s assets unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.

Note: Section 339 of the Personal Property Securities Act 2009 affects the meaning of the references in this subsection to a floating charge and a fixed charge.

(3) If:

(a)

a person (the supplier) supplies goods to a consumer; and

(b)

the supply is a supply of limited title;

there is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.

(4) This section does not apply if the supply is a supply by way of hire or lease.

54 Guarantee as to acceptable quality

(1)

If:

(a)

a person supplies, in trade or commerce, goods to a consumer; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality.

(2)

Goods are of acceptable quality if they are as:

(a)

fit for all the purposes for which goods of that kind are commonly supplied; and

(b)

acceptable in appearance and finish; and

(c)

free from defects; and

(d)

safe; and

(e)

durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods),

would regard as acceptable having regard to the matters in subsection (3).

(3)

The matters for the purposes of subsection (2) are:

(a)

the nature of the goods; and

(b)

the price of the goods (if relevant); and

(c)

any statements made about the goods on any packaging or label on the goods; and

(d)

any representation made about the goods by the supplier or manufacturer of the goods; and

(e)

any other relevant circumstances relating to the supply of the goods.

(4)

If:

(a)

goods supplied to a consumer are not of acceptable quality; and

(b)

the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a)

goods are displayed for sale or hire; and

(b)

the goods would not be of acceptable quality if they were

supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6)

Goods do not fail to be of acceptable quality if:

(a)

the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b)

they are damaged by abnormal use.

(7)

Goods do not fail to be of acceptable quality if:

(a)

the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b)

the examination ought reasonably to have revealed that the goods were not of acceptable quality.

55 Guarantee as to fitness for any disclosed purpose etc.

(1) If:

(a)

a person (the supplier) supplies, in trade or commerce, goods to a consumer; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any

disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

(2)

A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a)

the consumer makes known, expressly or by implication, to:

(i)

the supplier; or

(ii)

a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b)

the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

(3)

This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

56 Guarantee relating to the supply of goods by description

(1)

If:

(a)

a person supplies, in trade or commerce, goods by description to a consumer; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that the goods correspond with the description.

(2)

A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.

(3)

If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

57 Guarantees relating to the supply of goods by sample or demonstration model

(1)

If:

(a)

a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that:

(c)

the goods correspond with the sample or demonstration model in quality, state or condition; and

(d)

if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and

(e)

the goods are free from any defect that:

(i)

would not be apparent on reasonable examination of the sample or demonstration model; and

(ii)

would cause the goods not to be of acceptable quality.

(2)

If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.

58 Guarantee as to repairs and spare parts

(1) If:

(a)

a person supplies, in trade or commerce, goods to a consumer; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the

goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.

(2) This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:

(a)

facilities for the repair of the goods would not be available or would not be available after a specified period; or

(b)

parts for the goods would not be available or would not be available after a specified period.

59 Guarantee as to express warranties

(1) If:

(a)

a person supplies, in trade or commerce, goods to a consumer; and

(b)

the supply does not occur by way of sale by auction; there is a guarantee that the manufacturer of the goods will comply

with any express warranty given or made by the manufacturer in relation to the goods.

(2) If:

(a)

a person supplies, in trade or commerce, goods to a consumer; and

(b)

the supply does not occur by way of sale by auction;

there is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.

Subdivision B—Guarantees relating to the supply of services

60 Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

61 Guarantees as to fitness for a particular purpose etc.

(1) If:

(a)

a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)

the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2) If:

(a)

a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)

the consumer makes known, expressly or by implication, to:

(i)

the supplier; or

(ii)

a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

(3)

This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

(4)

This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.

62 Guarantee as to reasonable time for supply

If:

(a)

a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)

the time within which the services are to be supplied:

(i)

is not fixed by the contract for the supply of the services; or

(ii)

is not to be determined in a manner agreed to by the

consumer and supplier; there is a guarantee that the services will be supplied within a reasonable time.

63 Services to which this Subdivision does not apply

This Subdivision does not apply to services that are, or are to be, supplied under:

(a)

a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored; or

(b)

a contract of insurance.

Subdivision C—Guarantees not to be excluded etc. by contract

64 Guarantees not to be excluded etc. by contract

(1)

A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:

(a)

the application of all or any of the provisions of this Division; or

(b)

the exercise of a right conferred by such a provision; or

(c)

any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.

(2)

A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.

64A Limitation of liability for failures to comply with guarantees

(1)

A term of a contract for the supply by a person of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee (other than a guarantee under section 51, 52 or 53) to one or more of the following:

(a)

the replacement of the goods or the supply of equivalent goods;

(b)

the repair of the goods;

(c)

the payment of the cost of replacing the goods or of acquiring equivalent goods;

(d)

the payment of the cost of having the goods repaired.

(2)

A term of a contract for the supply by a person of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 64 merely because the term limits the person’s liability for failure to comply with a guarantee to:

(a)

the supplying of the services again; or

(b)

the payment of the cost of having the services supplied again.

(3)

This section does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the person who supplied the goods or services to rely on that term of the contract.

(4)

In determining for the purposes of subsection (3) whether or not reliance on a term of a contract is fair or reasonable, a court is to have regard to all the circumstances of the case, and in particular to the following matters:

(a)

the strength of the bargaining positions of the person who supplied the goods or services and the person to whom the goods or services were supplied (the buyer) relative to each other, taking into account, among other things, the availability of equivalent goods or services and suitable alternative sources of supply;

(b)

whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;

(c)

whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

(d)

in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.

Subdivision D—Miscellaneous

65 Application of this Division to supplies of gas, electricity and telecommunications

(1)

This Division does not apply to a supply if the supply:

(a)

is a supply of a kind specified in the regulations; and

(b)

is a supply of gas, electricity or a telecommunications service.

(2)

A telecommunications service is a service for carrying communications by means of guided or unguided electromagnetic energy or both.

66 Display notices

(1)

The Commonwealth Minister may determine, in writing, that persons (the suppliers) who make supplies, or supplies of a specified kind, to which guarantees apply under this Division are required to display, in accordance with the determination, a notice that meets the requirements of the determination.

(2)

A supplier who makes a supply to a consumer to which a guarantee applies under this Division, and to which such a determination relates, must ensure that a notice that meets those requirements is, in accordance with the determination:

(a)

if the consumer takes delivery of the goods or services at the supplier’s premises—displayed at those premises; or

(b)

otherwise—drawn to the consumer’s attention before the consumer agrees to the supply of the goods.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) Without limiting subsection (1), a determination under that subsection may do all or any of the following:

(a)

require the notice to include specified information about the application of all or any of the provisions of this Division and Part 5-4;

(b)

specify where the notice must be displayed;

(c)

specify how the notice must be drawn to the attention of consumers;

(d)

specify requirements as to the form of the notice.

67 Conflict of laws

If:

(a)

the proper law of a contract for the supply of goods or services to a consumer would be the law of any part of Australia but for a term of the contract that provides otherwise; or

(b)

a contract for the supply of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, the following provisions for all or any of the provisions of this Division:

(i)

the provisions of the law of a country other than Australia;

(ii)

the provisions of the law of a State or a Territory;

the provisions of this Division apply in relation to the supply under the contract despite that term.

68 Convention on Contracts for the International Sale of Goods

The provisions of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980, as amended and in force for Australia from time to time, prevail over the provisions of this Division to the extent of any inconsistency.

Note: The text of the Convention is set out in Australian Treaty Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Division 2—Unsolicited consumer agreements

Subdivision A—Introduction

69 Meaning of unsolicited consumer agreement

(1) An agreement is an unsolicited consumer agreement if:

(a)

it is for the supply, in trade or commerce, of goods or services to a consumer; and

(b)

it is made as a result of negotiations between a dealer and the consumer:

(i)

in each other’s presence at a place other than the business or trade premises of the supplier of the goods or services; or

(ii)

by telephone;

whether or not they are the only negotiations that precede the making of the agreement; and

(c)

the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and

(d)

the total price paid or payable by the consumer under the agreement:

(i)

is not ascertainable at the time the agreement is made; or

(ii)

if it is ascertainable at that time—is more than $100 or such other amount prescribed by the regulations.

(1A) The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:

(a)

given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or

(b)

contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.

(2)

An invitation merely to quote a price for a supply is not taken, for the purposes of subsection (1)(c), to be an invitation to enter into negotiations for a supply.

(3)

An agreement is also an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are unsolicited consumer agreements.

(4)

However, despite subsections (1) and (3), an agreement is not an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are not unsolicited consumer agreements.

70 Presumption that agreements are unsolicited consumer agreements

(1)

In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), an agreement is presumed to be an unsolicited consumer agreement if:

(a)

a party to the proceeding alleges that the agreement is an unsolicited consumer agreement; and

(b)

no other party to the proceeding proves that the agreement is not an unsolicited consumer agreement.

(2)

In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), it is presumed that a proposed agreement would be an unsolicited consumer agreement if it were made if:

(a)

a party to the proceeding alleges that the proposed agreement would be an unsolicited consumer agreement if it were made; and

(b)

no other party to the proceeding proves that the proposed agreement would not be an unsolicited consumer agreement if it were made.

71 Meaning of dealer

A dealer is a person who, in trade or commerce:

(a)

enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer; or

(b)

calls on, or telephones, a consumer for the purpose of

entering into such negotiations; whether or not that person is, or is to be, the supplier of the goods or services.

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:

(a)

at any time on a Sunday or a public holiday; or

(b)

before 9 am on any other day; or

(c)

after 6 pm on any other day (or after 5 pm if the other day is a Saturday).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) Subsection (1) does not apply if the dealer calls on the person in accordance with consent that:

(a)

was given by the person to the dealer or a person acting on the dealer’s behalf; and

(b)

was not given in the presence of the dealer or a person acting on the dealer’s behalf.

Note: The Do Not Call Register Act 2006 may apply to a telephone call made for the purpose of negotiating an unsolicited consumer agreement.

74 Disclosing purpose and identity

A dealer who calls on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose, must, as soon as practicable and in any event before starting to negotiate:

(a)

clearly advise the person that the dealer’s purpose is to seek the person’s agreement to a supply of the goods or services concerned; and

(b)

clearly advise the person that the dealer is obliged to leave the premises immediately on request; and

(c)

provide to the person such information relating to the dealer’s identity as is prescribed by the regulations.

Note: A pecuniary penalty may be imposed for a contravention of this section.

75 Ceasing to negotiate on request

(1) A dealer who calls on a person at any premises for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose, must leave the premises immediately on the request of:

(a)

the occupier of the premises, or any person acting with the actual or apparent authority of the occupier; or

(b)

the person (the prospective consumer) with whom the negotiations are being conducted.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If the prospective consumer makes such a request, the dealer must not contact the prospective consumer for the purpose of negotiating an unsolicited consumer agreement (or for an incidental or related purpose) for at least 30 days after the prospective consumer makes the request.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) If the dealer is not, or is not to be, the supplier of the goods or services to which the negotiations relate:

(a)

subsection (2) applies to that supplier, and any person acting on behalf of that supplier, in the same way that it applies to the dealer; but

(b)

subsection (2) does not apply to the dealer contacting the prospective customer in relation to a supply by another supplier.

76 Informing person of termination period etc.

A dealer must not make an unsolicited consumer agreement with a person unless:

(a)

before the agreement is made, the person is given information as to the following:

(i)

the person’s right to terminate the agreement during the termination period;

(ii)

the way in which the person may exercise that right;

(iii) such other matters as are prescribed by the regulations; and

(b)

if the agreement is made in the presence of both the dealer and the person—the person is given the information in writing; and

(c)

if the agreement is made by telephone—the person is given the information by telephone, and is subsequently given the information in writing; and

(d)

the form in which, and the way in which, the person is given the information complies with any other requirements prescribed by the regulations.

Note: A pecuniary penalty may be imposed for a contravention of this section.

77 Liability of suppliers for contraventions by dealers

If:

(a)

a dealer contravenes a provision of this Subdivision in relation to an unsolicited consumer agreement; and

(b)

the dealer is not, or is not to be, the supplier of the goods or

services to which the agreement relates; the supplier of the goods or services is also taken to have contravened that provision in relation to the agreement.

Subdivision C—Requirements for unsolicited consumer agreements etc.

78 Requirement to give document to the consumer

(1) If an unsolicited consumer agreement was not negotiated by telephone, the dealer who negotiated the agreement must give a copy of the agreement to the consumer under the agreement immediately after the consumer signs the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If an unsolicited consumer agreement was negotiated by telephone, the dealer who negotiated the agreement must, within 5 business days after the agreement was made or such longer period agreed by the parties, give to the consumer under the agreement:

(a)

personally; or

(b)

by post; or

(c)

with the consumer’s consent—by electronic communication; a document (the agreement document) evidencing the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) An unsolicited consumer agreement was negotiated by telephone if the negotiations that resulted in the making of the agreement took place by telephone (whether or not other negotiations preceded the making of the agreement).

79 Requirements for all unsolicited consumer agreements etc.

The supplier under an unsolicited consumer agreement must ensure that the agreement, or (if the agreement was negotiated by telephone) the agreement document, complies with the following requirements:

(a)

it must set out in full all the terms of the agreement, including:

(i)

the total consideration to be paid or provided by the consumer under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the way in which it is to be calculated; and

(ii)

any postal or delivery charges to be paid by the consumer;

(b)

its front page must include a notice that:

(i)

conspicuously and prominently informs the consumer of the consumer’s right to terminate the agreement; and

(ii)

conspicuously and prominently sets out any other information prescribed by the regulations; and

(iii) complies with any other requirements prescribed by the regulations;

(c)

it must be accompanied by a notice that:

(i)

may be used by the consumer to terminate the agreement; and

(ii)

complies with any requirements prescribed by the regulations;

(d)

it must conspicuously and prominently set out in full:

(i)

the supplier’s name; and

(ii)

if the supplier has an ABN—the supplier’s ABN; and

(iii) if the supplier does not have an ABN but has an ACN— the supplier’s ACN; and

(iv)

the supplier’s business address (not being a post box) or, if the supplier does not have a business address, the supplier’s residential address; and

(v)

if the supplier has an email address—the supplier’s email address; and

(vi)

if the supplier has a fax number—the supplier’s fax number;

(e)

it must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form, which may be handwritten);

(f)

it must be transparent.

Note: A pecuniary penalty may be imposed for a contravention of this section.

80 Additional requirements for unsolicited consumer agreements not negotiated by telephone

The supplier under an unsolicited consumer agreement that was not negotiated by telephone must ensure that, in addition to complying with the requirements of section 79, the agreement complies with the following requirements:

(a)

the agreement must be signed by the consumer under the agreement;

(b)

if the agreement is signed by a person on the supplier’s behalf—the agreement must state that the person is acting on the supplier’s behalf, and must set out in full:

(i)

the person’s name; and

(ii)

the person’s business address (not being a post box) or, if the person does not have a business address, the person’s residential address; and

(iii) if the person has an email address—the person’s email address.

Note: A pecuniary penalty may be imposed for a contravention of this section.

81 Requirements for amendments of unsolicited consumer agreements

The supplier under an unsolicited consumer agreement must ensure that any amendments to the agreement are signed by both parties to the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this section.

Subdivision D—Terminating unsolicited consumer agreements

82 Terminating an unsolicited consumer agreement during the termination period

(1)

The consumer under an unsolicited consumer agreement may, during the period provided under subsection (3), terminate the agreement by indicating, in an oral or written notice to the supplier under the agreement, an intention to terminate the agreement.

(2)

A right of termination under this section may be exercised:

(a)

despite affirmation of the agreement by the consumer; and

(b)

even though the agreement has been fully executed.

(3)

The period during which the consumer may terminate the agreement is whichever of the following periods is the longest:

(a)

if the agreement was not negotiated by telephone—the period of 10 business days starting at the start of the first business day after the day on which the agreement was made;

(b)

if the agreement was negotiated by telephone—the period of 10 business days starting at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement;

(c)

if one or more of the following were contravened in relation to the agreement:

(i)

section 73 (permitted hours for negotiating an unsolicited consumer agreement);

(ii)

section 74 (disclosing purpose and identity);

(iii) section 75 (ceasing to negotiate on request); the period of 3 months starting at the start of the first day after the day on which the agreement was made or, if the

agreement was negotiated by telephone, the agreement document was given;

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

(i)

section 76 (informing consumer of termination period);

(ii)

a provision of Subdivision C (requirements for unsolicited consumer agreements);

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

days); the period of 6 months starting at the start of the first day after the day on which the agreement was made or, if the agreement was negotiated by telephone, the agreement document was given;

(e) such other period as the agreement provides.

(4)

If the notice under subsection (1) is written, it may be given:

(a)

by delivering it personally to the supplier; or

(b)

by delivering it, or sending it by post, in an envelope addressed to the supplier, to the supplier’s address referred to in section 79(d)(iv); or

(c)

if the supplier has an email address—by sending it to the supplier’s email address referred to in section 79(d)(v); or

(d)

if the supplier has a fax number—by faxing it to the supplier’s fax number referred to in section 79(d)(vi).

(5)

A notice under subsection (1) sent by post to a supplier is taken to have been given to the supplier at the time of posting.

(6)

There are no requirements relating to the form or content of a notice under subsection (1).

83 Effect of termination

(1)

If an unsolicited consumer agreement is terminated in accordance with section 82:

(a)

the agreement is taken to have been rescinded by mutual consent; and

(b)

any related contract or instrument is void.

(2)

A related contract or instrument, in relation to an unsolicited consumer agreement, is:

(a)

any contract of guarantee or indemnity that is related to the agreement; or

(b)

any instrument related to the agreement that creates a mortgage or charge in favour of the supplier under the contract or the dealer in relation to the contract (or a person nominated by the supplier or dealer); or

(c)

any contract or instrument (other than an instrument of a kind referred to in paragraph (b)) that is collateral or related to the agreement;

but does not include a tied continuing credit contract (within the meaning of section 127(2) of Schedule 1 to the National Consumer Credit Protection Act 2009), or a tied loan contract (within the meaning of section 127(3) of that Schedule).

(3) The termination of an unsolicited consumer agreement has effect for the purposes of section 82 and this section even if:

(a)

the supplier under the agreement has not received the notice of termination; or

(b)

the goods or services supplied under the agreement have been wholly or partly consumed or used.

84 Obligations of suppliers on termination

If an unsolicited consumer agreement is terminated in accordance with section 82, the supplier under the agreement must, immediately upon being notified of the termination, return or refund to the consumer under the agreement any consideration (or the value of any consideration) that the consumer gave under the agreement or a related contract or instrument.

Note: A pecuniary penalty may be imposed for a contravention of this section.

85 Obligations and rights of consumers on termination

(1)

If an unsolicited consumer agreement is terminated in accordance with section 82, the consumer under the agreement must, within a reasonable time:

(a)

return to the supplier under the agreement any goods:

(i)

that have been received from the supplier under the agreement; and

(ii)

that the consumer has not already consumed; or

(b)

notify the supplier of the place where the supplier may collect the goods.

(2)

The goods become the property of the consumer, freed and discharged from all liens and charges of any description, if:

(a)

the consumer gives notice to the supplier under subsection (1)(b); and

(b)

the supplier does not collect the goods within 30 days after the termination of the contract.

(3)

If:

(a)

the agreement is terminated in accordance with section 82 after the end of the period of 10 business days starting:

(i)

if the agreement was not negotiated by telephone—at the start of the first business day after the day on which the agreement was made; or

(ii)

if the agreement was negotiated by telephone—at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement; and

(b)

the consumer returns the goods to the supplier, or the supplier collects the goods, under this section; and

(c)

the consumer has failed to take reasonable care of the goods;

the consumer is liable to pay compensation to the supplier for the damage to, or depreciation in the value of, the goods.

(4)

The compensation is recoverable in a court of competent jurisdiction.

(5)

However, the consumer is not liable for any such damage or depreciation attributable to normal use of the goods or to circumstances beyond the consumer’s control.

(6)

If:

(a)

an unsolicited consumer agreement is terminated in accordance with section 82 after the end of the period of 10 business days starting:

(i)

if the agreement was not negotiated by telephone—at the start of the first business day after the day on which the agreement was made; or

(ii)

if the agreement was negotiated by telephone—at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement; and

(b)

prior to the termination, but after the end of that period, a

service was supplied under the agreement; the termination does not affect any liability of the consumer under the agreement to provide consideration for the service.

86 Prohibition on supplies etc. for 10 business days

(1) The supplier under an unsolicited consumer agreement must not:

(a)

supply to the consumer under the agreement the goods or services to be supplied under the agreement; or

(b)

accept any payment, or any other consideration, in connection with those goods or services; or

(c)

require any payment, or any other consideration, in

connection with those goods or services; during the period of 10 business days starting:

(d)

if the agreement was not negotiated by telephone—at the start of the first business day after the day on which the agreement was made; or

(e)

if the agreement was negotiated by telephone—at the start of the first business day after the day on which the consumer was given the agreement document relating to the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If the supplier supplies goods to the consumer in contravention of this section, the consumer has the same rights in relation to the goods as if the goods were unsolicited goods.

Note: Section 41 deals with unsolicited goods.

(3) If the supplier supplies services to the consumer in contravention of this section, the consumer has the same rights in relation to the services as if the services were unsolicited services.

Note: Section 42 deals with unsolicited services.

87 Repayment of payments received after termination

If an unsolicited consumer agreement is terminated in accordance with section 82, the supplier under the agreement must immediately refund to the consumer under the agreement any payment:

(a)

that the consumer, or a person acting on the consumer’s behalf, makes to the supplier after the termination; and

(b)

that purports to be made under the agreement or a related contract or instrument.

Note: A pecuniary penalty may be imposed for a contravention of this section.

88 Prohibition on recovering amounts after termination

(1) If an unsolicited consumer agreement is terminated in accordance with section 82, a person must not:

(a)

bring, or assert an intention to bring, legal proceedings against the consumer; or

(b)

take, or assert an intention to take, any other action against

the consumer; in relation to an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(1A) Subsection (1) does not apply to:

(a)

bringing, or asserting an intention to bring, legal proceedings against the consumer; or

(b)

taking, or asserting an intention to take, any other action

against the consumer; to enforce a liability under section 85(3), or a liability of a kind referred to in section 85(6).

(2) If an unsolicited consumer agreement is terminated in accordance with section 82, a person must not, for the purpose of recovering an amount alleged to be payable, under the agreement or a related contract or instrument, by the consumer under the agreement:

(a)

place the consumer’s name, or cause the consumer’s name to be placed, on a list of defaulters or debtors; or

(b)

assert an intention to place the consumer’s name, or cause the consumer’s name to be placed, on such a list.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) Without limiting Division 2 of Part 5-2, an injunction granted under that Division may require a person responsible for keeping a list of defaulters or debtors on which the consumer’s name has been wrongly placed to remove the name from that list.

Subdivision E—Miscellaneous

89 Certain provisions of unsolicited consumer agreements void

(1)

A provision (however described) of an unsolicited consumer agreement is void if it has the effect of, or purports to have the effect of:

(a)

excluding, limiting, modifying or restricting a right of the consumer under the agreement to terminate the agreement under this Division; or

(b)

otherwise excluding, limiting, modifying or restricting the effect or operation of this Division; or

(c)

making a dispute relating to the agreement, or to a supply to which the agreement relates, justiciable by a court by which the dispute would not otherwise be justiciable.

(2)

The supplier under an unsolicited consumer agreement must ensure that the agreement does not include, or purport to include, a provision (however described) that is, or would be, void because of subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) The supplier under an unsolicited consumer agreement must not attempt to enforce or rely on a provision (however described) that is void because of subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

90 Waiver of rights

(1)

The consumer under an unsolicited consumer agreement is not competent to waive any right conferred by this Division.

(2)

The supplier under the unsolicited consumer agreement must not induce, or attempt to induce, the consumer to waive any right conferred by this Division.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

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

(1)

This Division applies in relation to a person to whom the rights of a consumer (the original consumer) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original consumer or from another person) as if the person were the original consumer.

(2)

This Division applies in relation to a person to whom the rights of a supplier (the original supplier) under a contract for the supply of goods or services are assigned or transferred, or pass by operation of law, (whether from the original supplier or from another person) as if the person were the original supplier.

92 Application of this Division to supplies to third parties

This Division applies in relation to a contract for the supply of goods or services to a consumer (the original consumer) on the order of another person as if the other person were also the consumer.

93 Effect of contravening this Division

(1)

The supplier under an unsolicited consumer agreement cannot enforce the agreement against the consumer under the agreement if a provision of this Division (other than section 85) has been contravened in relation to the agreement.

(2)

This section does not prevent any action being taken under this Schedule in relation to the contravention.

94 Regulations may limit the application of this Division

This Division (other than section 73) does not apply, or provisions of this Division (other than section 73) that are specified in the regulations do not apply, to or in relation to:

(a)

circumstances of a kind specified in the regulations; or

(b)

agreements of a kind specified in the regulations; or

(c)

the conduct of businesses of a kind specified in the regulations.

95 Application of this Division to certain conduct covered by the Corporations Act

This Division does not apply in relation to conduct to which section 736, 992A or 992AA of the Corporations Act 2001 applies.

Note: Section 736 of the Corporations Act 2001 prohibits hawking of securities. Section 992A of that Act prohibits hawking of certain financial products. Section 992AA of that Act prohibits hawking of 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:

(a)

the agreement is in writing; and

(b)

a copy of the agreement is given to the consumer to whom the goods are, or are to be, supplied.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

A supplier of consumer goods who is a party to a lay-by agreement must ensure that the agreement is transparent.

(3)

A lay-by agreement is an agreement between a supplier of consumer goods and a consumer for the supply, in trade or commerce, of the consumer goods on terms (whether express or implied) which provide that:

(a)

the goods will not be delivered to the consumer until the total price of the goods has been paid; and

(b)

the price of the goods is to be paid by:

(i)

3 or more instalments; or

(ii)

if the agreement specifies that it is a lay-by agreement— 2 or more instalments.

(4)

For the purposes of subsection (3)(b), any deposit paid by the consumer for the consumer goods is taken to be an instalment.

97 Termination of lay-by agreements by consumers

(1)

A consumer who is party to a lay-by agreement may terminate the agreement at any time before the consumer goods to which the agreement relates are delivered to the consumer under the agreement.

(2)

A supplier of consumer goods who is a party to a lay-by agreement must ensure that the agreement does not require the consumer to pay a charge (a termination charge) for the termination of the agreement unless:

(a)

the agreement is terminated by the consumer; and

(b)

the supplier has not breached the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A supplier of consumer goods who is a party to a lay-by agreement must ensure that, if the agreement provides that a termination charge is payable, the amount of the charge is not more than the supplier’s reasonable costs in relation to the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

98 Termination of lay-by agreements by suppliers

A supplier of consumer goods who is a party to a lay-by agreement must not terminate the agreement unless:

(a)

the consumer who is a party to the agreement breached a term of the agreement; or

(b)

the supplier is no longer engaged in trade or commerce; or

(c)

the consumer goods to which the agreement relates are no longer available.

Note: A pecuniary penalty may be imposed for a contravention of this section.

99 Effect of termination

(1) If a lay-by agreement is terminated by a party to the agreement, the supplier must refund to the consumer all the amounts paid by the consumer under the agreement other than any termination charge that is payable under the agreement.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

The supplier is entitled to recover any unpaid termination charge from the consumer as a debt if the amounts paid by the consumer under the lay-by agreement are not enough to cover the charge.

(3)

If a lay-by agreement is terminated by a party to the agreement, the supplier is not entitled to damages, or to enforce any other remedy, in relation to that termination except as provided for by this section.

Division 4—Miscellaneous

100 Supplier must provide proof of transaction etc.

(1) If:

(a)

a person (the supplier), in trade or commerce, supplies goods or services to a consumer; and

(b)

the total price (excluding GST) of the goods or services is

$75 or more; the supplier must give the consumer a proof of transaction as soon as practicable after the goods or services are so supplied.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If:

(a)

a person (the supplier), in trade or commerce, supplies goods or services to a consumer; and

(b)

the total price (excluding GST) of the goods or services is

less than $75; the consumer may request a proof of transaction from the supplier as soon as practicable after the goods or services are so supplied.

(3) If a request is made under subsection (2), the supplier must give the proof of transaction within 7 days after the request is made.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4) A proof of transaction for a supply of goods or services to a consumer is a document that:

(a)

identifies the supplier of the goods or services; and

(b)

if the supplier has an ABN—states the supplier’s ABN; and

(c)

if the supplier does not have an ABN but has an ACN—states the supplier’s ACN; and

(d)

states the date of the supply; and

(e)

states the goods or services supplied to the consumer; and

(f)

states the price of the goods or services.

Note: The following are examples of a proof of transaction:

(a)

a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999;

(b)

a cash register receipt;

(c)

a credit card or debit card statement;

(d)

a handwritten receipt;

(e)

a lay-by agreement;

(f)

a confirmation or receipt number provided for a telephone or internet transaction.

(5) The supplier must ensure that the proof of transaction given under subsection (1) or (3) is transparent.

101 Consumer may request an itemised bill

(1)

If a person (the supplier), in trade or commerce, supplies services to a consumer, the consumer may request that the supplier give the consumer an itemised bill that:

(a)

specifies how the price of the services was calculated; and

(b)

includes, if applicable, the number of hours of labour that related to the supply of the services and the hourly rate for that labour; and

(c)

includes, if applicable, a list of the materials used to supply the services and the amount charged for those materials.

(2)

The request under subsection (1) must be made within 30 days after:

(a)

the services are supplied; or

(b)

the consumer receives a bill or account from the supplier for

the supply of the services; whichever occurs later.

(3) The supplier must give the consumer the itemised bill within 7 days after the request is made.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4) The supplier must not charge the consumer for the itemised bill.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(5) The supplier must ensure that the itemised bill is transparent.

102 Prescribed requirements for warranties against defects

(1)

The regulations may prescribe requirements relating to the form and content of warranties against defects.

(2)

A person must not, in connection with the supply, in trade or commerce, of goods or services to a consumer:

(a)

give to the consumer a document that evidences a warranty against defects that does not comply with the requirements prescribed for the purposes of subsection (1); or

(b)

represent directly to the consumer that the goods or services are goods or services to which such a warranty against defects relates.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A warranty against defects is a representation communicated to a consumer in connection with the supply of goods or services, at or about the time of supply, to the effect that a person will (unconditionally or on specified conditions):

(a)

repair or replace the goods or part of them; or

(b)

provide again or rectify the services or part of them; or

(c)

wholly or partly recompense the consumer;

if the goods or services or part of them are defective, and includes any document by which such a representation is evidenced.

103 Repairers must comply with prescribed requirements

(1)

The regulations may prescribe requirements relating to the form and content of notices to be given relating to the repair of consumer goods.

(2)

A person (the repairer) must not, in trade or commerce, accept from another person goods that the other person acquired as a consumer if the repairer:

(a)

accepts the goods for the purpose of repairing them; and

(b)

does not give to the other person a notice that complies with the requirements prescribed for the purposes of subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

Part 3-3—Safety of consumer goods and product related services

Division 1—Safety standards

104 Making safety standards for consumer goods and product related services

(1)

The Commonwealth Minister may, by written notice published on the internet, make a safety standard for one or both of the following:

(a)

consumer goods of a particular kind;

(b)

product related services of a particular kind.

(2)

A safety standard for consumer goods of a particular kind may consist of such requirements about the following matters as are reasonably necessary to prevent or reduce risk of injury to any person:

(a)

the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of consumer goods of that kind;

(b)

the testing of consumer goods of that kind during, or after the completion of, manufacture or processing;

(c)

the form and content of markings, warnings or instructions to accompany consumer goods of that kind.

(3)

A safety standard for product related services of a particular kind may consist of such requirements about the following matters as are reasonably necessary to prevent or reduce risk of injury to any person:

(a)

the manner in which services of that kind are supplied (including, but not limited to, the method of supply);

(b)

the skills or qualifications of persons who supply such services;

(c)

the materials used in supplying such services;

(d)

the testing of such services;

(e)

the form and content of warnings, instructions or other information about such services.

105 Declaring safety standards for consumer goods and product related services

(1)

The Commonwealth Minister may, by written notice published on the internet, declare that the following is a safety standard for consumer goods, or product related services, of a kind specified in the instrument:

(a)

a particular standard, or a particular part of a standard, prepared or approved by Standards Australia International Limited or by an association prescribed by the regulations;

(b)

such a standard, or such a part of a standard, with additions or variations specified in the notice.

(2)

The Commonwealth Minister must not declare under subsection (1) that a standard, or a part of a standard, referred to in that subsection is a safety standard for:

(a)

consumer goods of a particular kind; or

(b)

product related services of a particular kind; if that standard or part is inconsistent with a safety standard for

those goods or services that is in force and that was made under section 104(1).

106 Supplying etc. consumer goods that do not comply with safety standards

(1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:

(a)

a safety standard for consumer goods of that kind is in force; and

(b)

those goods do not comply with the standard.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4)

In a proceeding under Part 5-2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s manufacture, possession or control of the goods was not for the purpose of supplying the goods (other than for export).

(5)

A person must not, in trade or commerce, export consumer goods the supply of which is prohibited by subsection (1) unless:

(a)

the person applies, in writing, to the Commonwealth Minister for an approval to export those goods; and

(b)

the Commonwealth Minister gives such an approval by written notice given to the person.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(6)

If the Commonwealth Minister gives an approval under subsection (5), he or she must cause a statement setting out particulars of the approval to be tabled in each House of the Parliament of the Commonwealth within 7 sitting days of that House after the approval is given.

(7)

If:

(a)

a person supplies consumer goods in contravention of this section; and

(b)

another person suffers loss or damage:

(i)

because of a defect in, or a dangerous characteristic of, the goods; or

(ii)

because of a reasonably foreseeable use (including a misuse) of the goods; or

(iii) because, contrary to the safety standard, he or she was not provided with particular information in relation to the goods; and

(c)

the other person would not have suffered the loss or damage

if the goods had complied with the safety standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

107 Supplying etc. product related services that do not comply with safety standards

(1) A person must not, in trade or commerce, supply product related services of particular kind if:

(a)

a safety standard for services of that kind is in force; and

(b)

those services do not comply with the standard.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) If:

(a)

a person supplies product related services in contravention of this section; and

(b)

another person suffers loss or damage:

(i)

because of defect in, or a dangerous characteristic of, consumer goods that results from the services being supplied; or

(ii)

because of a reasonably foreseeable use (including a misuse) of consumer goods that results from the services being supplied; or

(iii) because, contrary to the safety standard, he or she was not provided with particular information in relation to the services; and

(c)

the other person would not have suffered the loss or damage

if the services had complied with the safety standard; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

108 Requirement to nominate a safety standard

If:

(a)

a safety standard for consumer goods of a particular kind is in force; and

(b)

the standard specifies, as alternative methods of complying with the standard (or part of the standard), 2 or more sets of requirements relating to goods of that kind; and

(c)

the regulator gives to a supplier of goods of that kind a written request that the supplier nominate which of those sets of requirements the supplier intends to comply with as the supplier’s method of complying with the standard;

the supplier must, within the period specified in the request, give to the regulator a written notice specifying which of those sets of requirements the supplier intends to comply with as the supplier’s method of complying with the standard.

Division 2—Bans on consumer goods and product related services

Subdivision A—Interim bans

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

(1)

A responsible Minister may, by written notice published on the internet, impose an interim ban on consumer goods of a particular kind if:

(a)

it appears to the responsible Minister that:

(i)

consumer goods of that kind will or may cause injury to any person; or

(ii)

a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person; or

(b)

another responsible Minister has imposed, under paragraph (a), an interim ban:

(i)

on consumer goods of the same kind; or

(ii)

on consumer goods of a kind that includes those goods; and that ban is still in force.

(2)

A responsible Minister may, by written notice published on the internet, impose an interim ban on product related services of a particular kind if:

(a)

it appears to the responsible Minister that:

(i)

as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

(ii)

a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied; or

(b)

another responsible Minister has imposed, under paragraph (a), an interim ban:

(i)

on product related services of the same kind; or

(ii)

on product related services that include those services;

and that ban is still in force.

110 Places in which interim bans apply

(1)

An interim ban imposed by the Commonwealth Minister applies in all States and Territories.

(2)

An interim ban imposed by a responsible Minister who is Minister of a State applies in the State.

(3)

An interim ban imposed by a responsible Minister who is a Minister of a Territory applies in the Territory.

111 Ban period for interim bans

(1)

An interim ban imposed by a responsible Minister is in force during the period (the ban period) that:

(a)

starts on the day (the start day) specified in the notice imposing the ban; and

(b)

subject to this Subdivision, ends at the end of 60 days after the start day.

(2)

Before the ban period for the interim ban ends, the responsible Minister may, by written notice published on the internet, extend the ban period for the ban by a period of up to 30 days.

(3)

If:

(a)

the ban period for the interim ban is extended under subsection (2); and

(b)

the extended ban period for the ban has not ended; and

(c)

the interim ban was not imposed by the Commonwealth

Minister; the responsible Minister may, in writing, request the Commonwealth Minister to extend the extended ban period for the ban.

(4)

If a request is made under subsection (3), the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.

(5)

If:

(a)

a request is made under subsection (3); and

(b)

the Commonwealth Minister has not made a decision on the request immediately before the extended ban period for the interim ban is to end;

the Commonwealth Minister is taken to have decided to extend the extended ban period for the ban by a further period of 30 days.

(6) If:

(a)

the ban period for the interim ban is extended under subsection (2); and

(b)

the extended ban period for the ban has not ended; and

(c)

the interim ban was imposed by the Commonwealth

Minister; the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.

112 Interaction of multiple interim bans

(1) If:

(a)

an interim ban (the original ban) on consumer goods of a particular kind (the banned goods) is imposed by a responsible Minister other than the Commonwealth Minister; and

(b)

while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):

(i)

on the banned goods; or

(ii)

on consumer goods of a kind that includes the banned

goods; the original ban, to the extent that it is a ban on the banned goods, ceases to be in force immediately before the Commonwealth ban comes into force.

(2) If:

(a)

an interim ban (the original ban) on product related services of a particular kind (the banned services) is imposed by a responsible Minister other than the Commonwealth Minister; and

(b)

while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):

(i)

on the banned services; or

(ii)

on product related services of a kind that includes the

banned services; the original ban, to the extent that it is a ban on the banned services, ceases to be in force immediately before the Commonwealth ban comes into force.

113 Revocation of interim bans

If a responsible Minister imposes an interim ban:

(a)

the responsible Minister may, by written notice published on the internet, revoke the ban at any time; and

(b)

the ban ceases to be in force on the day specified by the responsible Minister in the notice.

Subdivision B—Permanent bans

114 Permanent bans on consumer goods or product related services

(1)

The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on consumer goods of a particular kind if:

(a)

one or more interim bans on consumer goods of that kind (the banned goods), or on consumer goods of a kind that include the banned goods, are in force; or

(b)

it appears to the Commonwealth Minister that:

(i)

consumer goods of that kind will or may cause injury to any person; or

(ii)

a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person.

(2)

The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on product related services of a particular kind if:

(a)

one or more interim bans on product related services of that kind (the banned services), or on product related services of a kind that include the banned services, are in force; or

(b)

it appears to the Commonwealth Minister that:

(i)

as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

(ii)

a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied.

115 Places in which permanent bans apply

A permanent ban applies in all States and Territories.

116 When permanent bans come into force

A permanent ban comes into force on the day specified by the Commonwealth Minister in the instrument imposing the ban.

117 Revocation of permanent bans

If the Commonwealth Minister imposes a permanent ban:

(a)

the Commonwealth Minister may, by written notice published on the internet, revoke the ban at any time; and

(b)

the ban ceases to be in force on the day specified by the Commonwealth Minister in the notice.

Subdivision C—Compliance with interim bans and permanent bans

118 Supplying etc. consumer goods covered by a ban

(1) A person must not, in trade or commerce, supply consumer goods of a particular kind if:

(a)

an interim ban on consumer goods of that kind is in force in the place where the supply occurs; or

(b)

a permanent ban on consumer goods of that kind is in force.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, offer for supply (other than for export) consumer goods the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) A person must not, in or for the purposes of trade or commerce, manufacture, possess or have control of consumer goods the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(4)

In a proceeding under Part 5-2 in relation to a contravention of subsection (3), it is a defence if the defendant proves that the defendant’s manufacture, possession or control of the goods was not for the purpose of supplying the goods (other than for export).

(5)

A person must not, in trade or commerce, export consumer goods the supply of which is prohibited by subsection (1) unless:

(a)

the person applies, in writing, to the Commonwealth Minister for an approval to export those goods; and

(b)

the Commonwealth Minister gives such an approval by written notice given to the person.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(6)

If the Commonwealth Minister gives an approval under subsection (5), he or she must cause a statement setting out particulars of the approval to be tabled in each House of the Parliament of the Commonwealth within 7 sitting days of that House after the approval is given.

(7)

If:

(a)

a person supplies consumer goods in contravention of subsection (1); and

(b)

another person suffers loss or damage:

(i)

because of a defect in, or a dangerous characteristic of, the goods; or

(ii)

because of a reasonably foreseeable use (including a

misuse) of the goods; the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

119 Supplying etc. product related services covered by a ban

(1) A person must not, in trade or commerce, supply product related services of a particular kind if:

(a)

an interim ban on services of that kind is in force in the place where the supply occurs; or

(b)

a permanent ban on services of that kind is in force.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) A person must not, in trade or commerce, offer for supply product related services the supply of which is prohibited by subsection (1).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) If:

(a)

a person supplies product related services in contravention of subsection (1); and

(b)

another person suffers loss or damage:

(i)

because of a defect in, or a dangerous characteristic of, consumer goods that results from the services being supplied; or

(ii)

because of a reasonably foreseeable use (including a misuse) of consumer goods that results from the services being supplied;

the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

Subdivision D—Temporary exemption from mutual recognition principles

120 Temporary exemption under the Trans-Tasman Mutual Recognition Act 1997

(1) If:

(a)

an interim ban on consumer goods of a particular kind is in force; or

(b)

a permanent ban on consumer goods of a particular kind is in

force; the goods are taken, for the purposes of section 46 of the Trans-Tasman Mutual Recognition Act 1997, to be goods of a kind that are declared, in the manner provided by section 46(2) of that Act, to be exempt from the operation of that Act.

(2) This section does not affect the application of section 46(4) of that Act in relation to such an exemption.

121 Temporary exemption under the Mutual Recognition Act 1992

(1) If:

(a)

an interim ban on consumer goods of a particular kind is in force; and

(b)

the interim ban was not imposed by the Commonwealth

Minister; the goods are taken, for the purposes of section 15 of the Mutual Recognition Act 1992, to be goods of a kind that are declared, in the manner provided by section 15(1) of that Act, to be goods to which that section applies.

(2) This section does not affect the application of section 15(3) of that Act in relation to such an exemption.

Division 3—Recall of consumer goods

Subdivision A—Compulsory recall of consumer goods

122 Compulsory recall of consumer goods

(1)

A responsible Minister may, by written notice published on the internet, issue a recall notice for consumer goods of a particular kind if:

(a)

a person, in trade or commerce, supplies consumer goods of that kind; and

(b)

any of the following applies:

(i)

it appears to the responsible Minister that such goods will or may cause injury to any person;

(ii)

it appears to the responsible Minister that a reasonably foreseeable use (including a misuse) of such goods will or may cause injury to any person;

(iii) a safety standard for such goods is in force and the goods do not comply with the standard; (iv) an interim ban, or a permanent ban, on such goods is in force; and

(c)

it appears to the responsible Minister that one or more suppliers of such goods have not taken satisfactory action to prevent those goods causing injury to any person.

(2)

It is not necessary for the purposes of subsection (1)(c) for the responsible Minister to know the identities of any of the suppliers of the consumer goods of that kind.

(3)

A recall notice for consumer goods may be issued under subsection (1) even if the consumer goods have become fixtures since the time they were supplied.

123 Contents of a recall notice

(1)

A recall notice for the consumer goods may require one or more suppliers of the goods, or (if no such supplier is known to the responsible Minister who issued the notice) the regulator, to take one or more of the following actions:

(a)

recall the goods;

(b)

disclose to the public, or to a class of persons specified in the notice, one or more of the following:

(i)

the nature of a defect in, or a dangerous characteristic of, the goods as identified in the notice;

(ii)

the circumstances as identified in the notice in which a reasonably foreseeable use or misuse of the goods is dangerous;

(iii) procedures as specified in the notice for disposing of the goods;

(c)

if the identities of any of those suppliers are known to the responsible Minister—inform the public, or a class of persons specified in the notice, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:

(i)

unless the notice identifies a dangerous characteristic of the goods—repair the goods;

(ii)

replace the goods;

(iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods.

(2)

The recall notice may specify:

(a)

the manner in which the action required to be taken by the notice must be taken; and

(b)

the period within which the action must be taken.

(3)

If the recall notice requires the regulator to take action to recall the consumer goods, the responsible Minister may specify in the notice that the regulator must retain, destroy or otherwise dispose of the goods.

(4)

If the recall notice requires a supplier of the consumer goods to take action of a kind referred to in subsection (1)(c), the responsible Minister may specify in the notice that, if:

(a)

the supplier undertakes to refund the price of the goods; and

(b)

a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier;

the amount of a refund may be reduced by the supplier by an amount calculated in a manner specified in the notice that is attributable to the use which a person has had of the goods.

124 Obligations of a supplier in relation to a recall notice

(1)

This section applies if a recall notice for consumer goods requires a supplier to take action of a kind referred to in section 123(1)(c).

(2)

If the supplier undertakes to repair the consumer goods, the supplier must cause the goods to be repaired so that:

(a)

any defect in the goods identified in the recall notice is remedied; and

(b)

if a safety standard for the goods is in force—the goods comply with that standard.

(3)

If the supplier undertakes to replace the consumer goods, the supplier must replace the goods with similar consumer goods which:

(a)

if a defect in, or a dangerous characteristic of, the goods to be replaced was identified in the recall notice—do not contain that defect or have that characteristic; and

(b)

if a safety standard for the goods to be replaced is in force— comply with that standard.

(4)

If the supplier undertakes:

(a)

to repair the consumer goods; or

(b)

to replace the consumer goods;

the cost of the repair or replacement, including any necessary transportation costs, must be paid by the supplier.

125 Notification by persons who supply consumer goods outside Australia if there is compulsory recall

(1)

If consumer goods of a particular kind are recalled as required by a recall notice, a person who has supplied or supplies those consumer goods to a person outside Australia must give the person outside Australia a written notice that complies with subsection (2).

(2)

The notice given under subsection (1) must:

(a)

state that the consumer goods are subject to recall; and

(b)

if the consumer goods contain a defect or have a dangerous characteristic—set out the nature of that defect or characteristic; and

(c)

if a reasonably foreseeable use or misuse of the consumer goods is dangerous—set out the circumstances of that use or misuse; and

(d)

if the consumer goods do not comply with a safety standard for such goods that is in force—set out the nature of the non-compliance; and

(e)

if an interim ban, or a permanent ban, on the consumer goods is in force—state that fact.

(3)

The notice under subsection (1) must be given as soon as practicable after the supply of the consumer goods to the person outside Australia.

(4)

A person who is required to give a notice under subsection (1) must, within 10 days after giving the notice, give a copy of the notice to the responsible Minister who issued the recall notice.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

126 Interaction of multiple recall notices

If:

(a)

a recall notice (the original recall notice) for consumer goods of a particular kind (the recalled goods) is issued by a responsible Minister other than the Commonwealth Minister; and

(b)

while the original recall notice is in force, the Commonwealth Minister issues a recall notice (the Commonwealth recall notice):

(i)

for the recalled goods; or

(ii)

for consumer goods of a kind that includes the recalled

goods; the original recall notice, to the extent that it relates to the recalled goods, ceases to be in force immediately before the Commonwealth recall notice is issued.

127 Compliance with recall notices

(1) If:

(a)

a recall notice for consumer goods is in force; and

(b)

the notice requires a person (other than the regulator) to do

one or more things; the person must comply with the notice.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) If a recall notice for consumer goods is in force, a person must not, in trade or commerce:

(a)

if the notice identifies a defect in, or a dangerous characteristic of, the consumer goods—supply consumer goods of the kind to which the notice relates which contain that defect or have that characteristic; or

(b)

in any other case—supply consumer goods of the kind to which the notice relates.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3) If:

(a)

a person contravenes subsection (1) or (2) in relation to consumer goods; and

(b)

another person suffers loss or damage:

(i)

because of a defect in, or a dangerous characteristic of, the goods; or

(ii)

because of a reasonably foreseeable use (including a misuse) of the goods; or

(iii) because, contrary to the recall notice, the other person was not provided with particular information in relation to the goods;

the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of the contravention.

Subdivision B—Voluntary recall of consumer goods

128 Notification requirements for a voluntary recall of consumer goods

(1)

This section applies if a person voluntarily takes action to recall consumer goods of a particular kind (including consumer goods that have become fixtures since being supplied) because:

(a)

the consumer goods will or may cause injury to any other person; or

(b)

a reasonably foreseeable use (including a misuse) of the consumer goods will or may cause injury to any other person; or

(c)

a safety standard for the consumer goods is in force and they do not, or it is likely that they do not, comply with the standard; or

(d)

an interim ban, or a permanent ban, on the consumer goods is in force.

(2)

The person must, within 2 days after taking the action, give the Commonwealth Minister a written notice that complies with subsection (7).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(3)

The Commonwealth Minister may publish a copy of the notice on the internet.

(4)

A person who has supplied or supplies consumer goods of that kind to another person outside Australia must give the other person a written notice that complies with subsection (7).

(5)

The notice under subsection (4) must be given as soon as practicable after the supply of the consumer goods to the person outside Australia.

(6)

A person who is required to give a notice under subsection (4) must, within 10 days after giving the notice, give a copy of the notice to the Commonwealth Minister.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(7) A notice given under subsection (2) or (4) must:

(a)

state that the consumer goods are subject to recall; and

(b)

if the consumer goods contain a defect or have a dangerous characteristic—set out the nature of that defect or characteristic; and

(c)

if a reasonably foreseeable use or misuse of the consumer goods is dangerous—set out the circumstances of that use or misuse; and

(d)

if the consumer goods do not, or it is likely that they do not, comply with a safety standard for the goods that is in force—

set out the nature of the non-compliance or likely non-compliance; and

(e)

if an interim ban, or a permanent ban, on the consumer goods is in force—state that fact.

Division 4—Safety warning notices

129 Safety warning notices about consumer goods and product related services

(1)

A responsible Minister may publish on the internet a written notice containing one or both of the following:

(a)

a statement that consumer goods of a kind specified in the notice are under investigation to determine whether:

(i)

those goods will or may cause injury to any person; or

(ii)

a reasonably foreseeable use (including a misuse) of those goods will or may cause injury to any person;

(b)

a warning of possible risks involved in the use of consumer goods of a kind specified in the notice.

(2)

A responsible Minister may publish on the internet a written notice containing one or both of the following:

(a)

a statement that product related services of a kind specified in the notice are under investigation to determine whether:

(i)

consumer goods of a particular kind will or may cause injury to any person as a result of services of that kind being supplied; or

(ii)

a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied;

(b)

a warning of possible risks involved in the supply of product related services of a kind specified in the notice.

130 Announcement of the results of an investigation etc.

(1) If:

(a)

an investigation of consumer goods, or product related services, specified in a notice under section 129(1) or (2) has been completed; and

(b)

none of the following have been published or issued in relation to those goods or services:

(i)

a proposed ban notice under section 132 of the Competition and Consumer Act;

(ii)

a proposed recall notice under section 132A of that Act;

(iii) a notice under section 132J(1) or (2) of that Act; the responsible Minister who issued the notice under section 129(1) or (2) must, as soon as practicable after the

completion of the investigation, announce, by written notice published on the internet, the results of the investigation.

(2) The responsible Minister may announce in a notice published under subsection (1) of this section:

(a)

whether any action under this Part is proposed to be taken in relation to the consumer goods or product related services; and

(b)

if it is proposed to take any such action—what action is proposed to be taken.

Division 5—Consumer goods, or product related services, associated with death or serious injury or illness

131 Suppliers to report consumer goods associated with the death or serious injury or illness of any person

(1) If:

(a)

a person (the supplier), in trade or commerce, supplies consumer goods; and

(b)

the supplier becomes aware of the death or serious injury or illness of any person and:

(i)

considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods; or

(ii)

becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods;

the supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

Subsection (1) does not apply if:

(a)

it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods; or

(b)

it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods; or

(c)

the supplier, or another person, is required to notify the death or serious injury or illness in accordance with a law of the Commonwealth, a State or a Territory that is a law specified in the regulations; or

(d)

the supplier, or another person, is required to notify the death or serious injury or illness in accordance with an industry code of practice that:

(i)

applies to the supplier or other person; and

(ii)

is specified in the regulations.

(3)

Subsection (1) applies whether or not the consumer goods were being used before or at the time the death or serious injury or illness occurred.

(4)

Without limiting subsection (1), the ways in which the supplier may become aware as mentioned in subsection (1)(b) include receiving the relevant information from any of the following:

(a)

a consumer;

(b)

a person who re-supplies the consumer goods;

(c)

a repairer or insurer of the goods;

(d)

an industry organisation or consumer organisation.

(5)

The notice must:

(a)

identify the consumer goods; and

(b)

include information about the following matters to the extent that it is known by the supplier at the time the notice is given:

(i)

when, and in what quantities, the consumer goods were manufactured in Australia, supplied in Australia, imported into Australia or exported from Australia;

(ii)

the circumstances in which the death or serious injury or illness occurred;

(iii) the nature of any serious injury or illness suffered by any person; (iv) any action that the supplier has taken, or is intending to take, in relation to the consumer goods.

(6)

The giving of the notice under subsection (1) is not to be taken for any purpose to be an admission by the supplier of any liability in relation to:

(a)

the consumer goods; or

(b)

the death or serious injury or illness of any person.

132 Suppliers to report product related services associated with the death or serious injury or illness of any person

(1) If:

(a)

a person (the supplier), in trade or commerce, supplies product related services; and

(b)

the supplier becomes aware of the death or serious injury or illness of any person and:

(i)

considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate; or

(ii)

becomes aware that a person other than the supplier considers that the death or serious injury or illness was caused, or may have been caused, by the use or foreseeable misuse of the consumer goods to which the services relate;

the supplier must, within 2 days of becoming so aware, give the Commonwealth Minister a written notice that complies with subsection (5).

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2)

Subsection (1) does not apply if:

(a)

it is clear that the death or serious injury or illness was not caused by the use or foreseeable misuse of the consumer goods to which the services relate; or

(b)

it is very unlikely that the death or serious injury or illness was caused by the use or foreseeable misuse of the consumer goods to which the services relate; or

(c)

the supplier, or another person, is required to notify the death or serious injury or illness in accordance with a law of the Commonwealth, a State or a Territory that is a law specified in the regulations; or

(d)

the supplier, or another person, has notified the death or serious injury or illness in accordance with an industry code of practice that:

(i)

applies to the supplier or other person; and

(ii)

is specified in the regulations.

(3)

Subsection (1) applies whether or not consumer goods to which the product related services relate were being used before or at the time the death or serious injury or illness occurred.

(4)

Without limiting subsection (1), the ways in which the supplier may become aware as mentioned in subsection (1)(b) include receiving the relevant information from any of the following:

(a)

a consumer;

(b)

a person who re-supplies the product related services;

(c)

an insurer of the services;

(d)

an industry organisation or consumer organisation.

(5)

The notice must:

(a)

identify the product related services and the consumer goods to which the services relate; and

(b)

include information about the following matters to the extent that it is known by the supplier at the time the notice is given:

(i)

when the services have been supplied;

(ii)

the circumstances in which the death or serious injury or illness occurred;

(iii) the nature of any serious injury or illness suffered by any person; (iv) any action that the supplier has taken, or is intending to take, in relation to the services.

(6)

The giving of the notice under subsection (1) is not to be taken for any purpose to be an admission by the supplier of any liability in relation to:

(a)

the product related services; or

(b)

the consumer goods to which the services relate; or

(c)

the death or serious injury or illness of any person.

132A Confidentiality of notices given under this Division

(1)

A person must not disclose to any other person a notice given under this Division, or any part of or information contained in such a notice, unless the person who gave the notice has consented to the notice, or that part or information, not being treated as confidential.

(2)

This section does not apply if:

(a)

the disclosure is made by the Commonwealth Minister to:

(i)

another responsible Minister; or

(ii)

the regulator; or

(iii) an associate regulator; or

(b)

the disclosure is made by the Commonwealth Minister and the Commonwealth Minister considers that the disclosure is in the public interest; or

(c)

the disclosure is made by a member of the staff of the regulator, or an associate regulator, in the performance of his or her duties as such a member of staff, and is made:

(i)

to another member of the staff of the regulator or associate regulator; or

(ii)

if the person making the disclosure is a member of the staff of the regulator—to an associate regulator; or

(iii) if the person making the disclosure is a member of the staff of an associate regulator—to the regulator or another associate regulator; or

(d)

the disclosure is required or authorised by or under law; or

(e)

the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty.

Division 6—Miscellaneous

133 Liability under a contract of insurance

If:

(a)

a contract of insurance between an insurer and a person relates to:

(i)

the recall of consumer goods that are supplied by the person, or which the person proposes to supply; or

(ii)

the liability of the person with respect to possible defects in such consumer goods; and

(b)

the person gives information relating to any such consumer goods to:

(i)

a responsible Minister; or

(ii)

the regulator; or

(iii) a person appointed or engaged under the Public Service Act 1999, or under a corresponding law of a State or a Territory; or

(iv) an officer of an authority of the Commonwealth or of a

State or Territory; the liability of the insurer under the contract is not affected only because the person gave the information.