Fair Trading Act 2010

 

Fair Trading Act 2010

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Object of Act2

Part 2 — Interpretation and application

Division 1 — General interpretation

4.Which interpretation Act applies to ACL (WA)3

5.Application of s. 6-9 and 173

6.Terms used3

7.Term used: consumer5

8.Term used: services6

9.Further provisions about interpretation7

Division 2 — Application

10.Act binds Crown10

11.Territorial application of Act10

12.Concurrent operation of laws of other jurisdictions not limited11

13.No contracting out12

14.Relationship with other Acts and rules of law12

15.Inconsistencies with other enactments12

Part 3 — The Australian Consumer Law

Division 1 — Object and interpretation

16.Object of this Part14

17.Terms used14

Division 2 — Application of Australian Consumer Law

18.Australian Consumer Law text16

19.Australian Consumer Law text, application of16

21.Certain instruments to be published, and may be disallowed by Parliament17

22.Term used in ACL (WA): regulator18

23.ACL (WA), interpretation of18

24.ACL (WA), application of19

Division 3 — References to Australian Consumer Law

25.References to Australian Consumer Law19

26.References to Australian Consumer Law of other jurisdictions20

Division 4 — Application of Australian Consumer Law to Crown

27.Division does not apply to Commonwealth20

28.Application law of this jurisdiction binds Crown20

29.Application law of other jurisdictions binds Crown20

30.Crown not liable to pecuniary penalty or prosecution21

Division 5 — Miscellaneous

31.No doubling‑up of criminal liabilities21

32.Offences against ACL (WA) are crimes22

33.Pecuniary penalty proceedings under ACL (WA) s. 224, civil rules of evidence etc. apply23

35.Sale of Goods Act 1895, inconsistency with certain provisions of ACL (WA)23

36.Competition and Consumer Act 2010 (Cwlth) Sch. 2 modified23

Division 6 — Transitional

37.Certain injunction proceedings pending at 1 Jan 201124

38.ACL (WA) Part 2-3 (unfair contract terms), application of to contracts made on or after 1 Jan 201125

39.ACL (WA) Part 3-2 Div. 2 (unsolicited consumer agreements), application of to contracts made before 1 Jan 2011 etc.25

40.ACL (WA) s. 101 (requests for itemised bills), application of for services supplied before 1 Jan 201126

41.ACL (WA) s. 224(4)(c), interpretation of26

Part 4 — Codes of practice

Division 1 — Preliminary

42.Outline of this Part27

43.Term used: code of practice27

Division 2 — Development and implementation of codes of practice

44.Draft codes of practice, preparation of27

45.Regulations prescribing code of practice28

46.Interim code of practice, regulations may prescribe29

Division 3 — Enforcement of codes of practice

47.SAT’s powers to deal with contraventions of prescribed code of practice29

48.Commissioner may take or defend, or assume the conduct or defence of, proceedings relating to contravention of code of practice30

49.Provisions for proceedings Commissioner institutes, defends or assumes conduct or defence of32

50.No doubling‑up of liabilities33

51.Action taken for breach of code of practice doesn’t preclude other civil action33

52.Transitional provisions for codes of practice prescribed before 1 Jan 201134

53.Transitional provisions for undertakings under Fair Trading Act 1987 s. 4435

54.Transitional provisions for contraventions of code of practice before 1 Jan 201136

Part 5 — Administrative provisions

Division 1 — Commissioner

55.Commissioner, designation and title of37

56.General functions of Commissioner37

57A.Licensing and regulatory functions of Commissioner39

57.Warnings and information, Commissioner may issue39

58.Instituting, defending or assuming conduct or defence of legal proceedings on behalf of consumers or businesses40

59.Provisions for proceedings Commissioner institutes, defends or assumes conduct or defence of42

60.Delegation by Commissioner43

61.Judicial notice of Commissioner’s signature etc.44

Division 2 — Offence

62.Advertisements not to imply approval by consumer affairs authority44

Division 3 — Advisory committees

Subdivision 1 — Property Industry Advisory Committee

63A.Committee established46

63B.Membership46

63C.Functions47

63D.Procedure47

Subdivision 2 — Motor Vehicle Industry Advisory Committee

63E.Committee established48

63F.Membership48

63G.Functions48

63H.Procedure49

Subdivision 3 — Consumer Advisory Committee

63I.Committee established49

63J.Membership49

63K.Functions50

63L.Procedure50

Subdivision 4 — Regulations prescribing committee procedures, etc.

63M.Regulations50

Part 6 — Investigation and enforcement

Division 1 — Preliminary

63.Terms used52

64A.Authorised persons cannot be public officers under Criminal Investigation Act 200652

Division 2 — Investigators

64.Designating people as investigators53

65.Certificate of authority of investigator53

66.Certificate of authority to be produced on demand53

67.Persons assisting investigators54

Division 3 — General powers

68.Investigations and inquiries, Commissioner’s powers to make54

69.Investigations and inquiries, powers for55

70.Interviews under s. 69(1)(a), conduct of57

71.Warrant to enter premises or motor vehicle57

72.Warrants wanted urgently, may be obtained by telephone etc.58

73.Warrants by telephone etc., further provisions for59

74.Warrants, issue and effect of61

75.Warrants, powers under to obtain access information for computers etc.62

76.Warrants, further powers under63

77.Damage to equipment or data, compensation for64

78.Warrants, execution and duration of65

79.Seizing things66

80.Seized things, copies of to be provided67

81.Seized things, access to by owner67

82.Seized things, return of67

83.Seizure, SAT may review68

84.Seized things, forfeiture of69

85.Forfeited things, dealing with69

86.Privilege against self‑incrimination doesn’t apply70

87.Information obtained, use of etc.70

Division 4A — Specific powers for enforcement of licensing and regulatory provisions

88A.Terms used71

88B.Investigations and inquiries for licensing and regulatory purposes, Commissioner’s powers to make71

88C.Authorised persons’ powers for this Division72

88D.Police assistance with investigations and inquiries72

88E.Compliance checks at regulated person’s business premises, powers for73

Division 4 — Offences

88.Failing to cooperate with investigation74

89.Obstructing authorised person75

Part 7 — Criminal and civil proceedings

Division 1 — Preliminary

90.Term used: person involved in a contravention of a provision of this Act77

Division 2 — Criminal proceedings

91.Time limit for commencing proceedings77

92.Who may institute criminal proceedings77

93.Court of summary jurisdiction to be constituted by magistrate78

94.Courts’ other powers in criminal proceedings78

95.Vicarious liability of directors, employers etc.79

96.Defence: reasonable mistake of fact81

97.Defences: accident, act or default of another etc.82

98.Defence: publication of advertisements in ordinary course of business83

Division 3 — Civil proceedings

99.Injunctions to prevent or stop contraventions of Act83

100.Injunctions to prevent etc. other contraventions84

101.Injunctions, general provisions about85

102.Interim injunctions85

103.Final injunction may be granted if parties consent86

104.Injunction may be rescinded or varied86

105.Supreme and District Courts’ other powers in Part 7 proceedings86

106.Supreme and District Courts’ powers to prohibit payments, transfers of property etc.88

107.Contravening s. 106 order, offence91

108.Findings of fact or admissions in certain proceedings to be evidence in others91

Division 4 — Further provisions relating to proceedings

109.State of mind of person, meaning of in s. 110 and 11192

110.State of mind and conduct of body corporate, establishing92

111.State of mind and conduct of principal (not a body corporate), establishing93

Part 8 — Miscellaneous

112.Personal information obtained officially, when may be divulged etc.95

113.Information obtained officially may be used for certain other purposes and legislation96

114.Protection from liability for wrongdoing97

115.Protection from liability for publishing official statements97

116.Regulations98

Part 9 — Transitional provisions

117.Regulations for transitional matters99

118.Fair Trading (Product Information Standard) Regulation 2005 Part 4 (builders plates for recreational vessels), continuation of100

119.Orders made before 1 Jan 2011 recalling defective goods etc., effect of100

120.Delegations made before 1 Jan 2011, effect of101

121.Interpretation Act 1984, application of to expiring Acts101

Schedule 1 — Acts that override the Australian Consumer Law (WA) Part 3‑3

Schedule 2 — Registration Acts

Notes

Compilation table104

Uncommenced provisions table105

Other notes105

Note — Australian Consumer Law (WA) text

Chapter 1 — Introduction

1.Application of this Schedule106

2.Definitions106

3.Meaning of consumer122

4.Misleading representations with respect to future matters126

5.When donations are treated as supplies or acquisitions127

6.Related bodies corporate127

7.Meaning of manufacturer127

8.Goods affixed to land or premises129

9.Meaning of safety defect in relation to goods129

10.Asserting a right to payment130

11.References to acquisition, supply and re‑supply130

12.Application of Schedule in relation to leases and licences of land and buildings131

13.Loss or damage to include injury132

14.Meaning of continuing credit contract132

15.Contraventions of this Schedule133

16.Severability133

17.References to provisions in this Schedule134

Chapter 2 — General protections

Part 2‑1 — Misleading or deceptive conduct

18.Misleading or deceptive conduct134

19.Application of this Part to information providers134

Part 2‑2 — Unconscionable conduct

20.Unconscionable conduct within the meaning of the unwritten law136

21.Unconscionable conduct in connection with goods or services136

22.Matters the court may have regard to for the purposes of section 21137

22A.Presumptions relating to whether representations are misleading141

Part 2‑3 — Unfair contract terms

23.Unfair terms of consumer contracts and small business contracts141

24.Meaning of unfair142

25.Examples of unfair terms143

26.Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected144

27.Standard form contracts145

28.Contracts to which this Part does not apply145

Chapter 3 — Specific protections

Part 3‑1 — Unfair practices

Division 1 — False or misleading representations etc.

29.False or misleading representations about goods or services146

30.False or misleading representations about sale etc. of land148

31.Misleading conduct relating to employment149

32.Offering rebates, gifts, prizes etc.149

33.Misleading conduct as to the nature etc. of goods151

34.Misleading conduct as to the nature etc. of services151

35.Bait advertising151

36.Wrongly accepting payment152

37.Misleading representations about certain business activities154

38.Application of provisions of this Division to information providers154

Division 2 — Unsolicited supplies

39.Unsolicited cards etc.156

40.Assertion of right to payment for unsolicited goods or services157

41.Liability etc. of recipient for unsolicited goods158

42.Liability of recipient for unsolicited services160

43.Assertion of right to payment for unauthorised entries or advertisements160

Division 3 — Pyramid schemes

44.Participation in pyramid schemes162

45.Meaning of pyramid scheme162

46.Marketing schemes as pyramid schemes164

Division 4 — Pricing

47.Multiple pricing164

48.Single price to be specified in certain circumstances167

Division 5 — Other unfair practices

49.Referral selling170

50.Harassment and coercion170

Part 3‑2 — Consumer transactions

Division 1 — Consumer guarantees

Subdivision A — Guarantees relating to the supply of goods

51.Guarantee as to title171

52.Guarantee as to undisturbed possession171

53.Guarantee as to undisclosed securities etc.172

54.Guarantee as to acceptable quality173

55.Guarantee as to fitness for any disclosed purpose etc.175

56.Guarantee relating to the supply of goods by description176

57.Guarantees relating to the supply of goods by sample or demonstration model176

58.Guarantee as to repairs and spare parts177

59.Guarantee as to express warranties177

Subdivision B — Guarantees relating to the supply of services

60.Guarantee as to due care and skill178

61.Guarantees as to fitness for a particular purpose etc.178

62.Guarantee as to reasonable time for supply179

63.Services to which this Subdivision does not apply179

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

64.Guarantees not to be excluded etc. by contract180

64A.Limitation of liability for failures to comply with guarantees180

Subdivision D — Miscellaneous

65.Application of this Division to supplies of gas, electricity and telecommunications182

66.Display notices182

67.Conflict of laws183

68.Convention on Contracts for the International Sale of Goods184

Division 2 — Unsolicited consumer agreements

Subdivision A — Introduction

69.Meaning of unsolicited consumer agreement184

70.Presumption that agreements are unsolicited consumer agreements186

71.Meaning of dealer186

72.Meaning of negotiation186

Subdivision B — Negotiating unsolicited consumer agreements

73.Permitted hours for negotiating an unsolicited consumer agreement187

74.Disclosing purpose and identity187

75.Ceasing to negotiate on request188

76.Informing person of termination period etc.189

77.Liability of suppliers for contraventions by dealers189

Subdivision C — Requirements for unsolicited consumer agreements etc.

78.Requirement to give document to the consumer190

79.Requirements for all unsolicited consumer agreements etc.190

80.Additional requirements for unsolicited consumer agreements not negotiated by telephone192

81.Requirements for amendments of unsolicited consumer agreements192

Subdivision D — Terminating unsolicited consumer agreements

82.Terminating an unsolicited consumer agreement during the termination period193

83.Effect of termination195

84.Obligations of suppliers on termination196

85.Obligations and rights of consumers on termination196

86.Prohibition on supplies etc.198

87.Repayment of payments received after termination199

88.Prohibition on recovering amounts after termination199

Subdivision E — Miscellaneous

89.Certain provisions of unsolicited consumer agreements void200

90.Waiver of rights201

91.Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.201

92.Application of this Division to supplies to third parties202

93.Effect of contravening this Division202

94.Regulations may limit the application of this Division202

95.Application of this Division to certain conduct covered by the Corporations Act202

Division 3 — Lay‑by agreements

96.Lay‑by agreements must be in writing etc.203

97.Termination of lay‑by agreements by consumers203

98.Termination of lay‑by agreements by suppliers204

99.Effect of termination204

Division 3A—Gift cards

Subdivision A—Introduction

99A.Meaning of gift card205

Subdivision B—Requirements relating to gift cards

99B.Gift cards to be redeemable for at least 3 years205

99C.When gift card ceases to be redeemable to appear prominently on gift card206

99D.Terms and conditions not to allow post‑supply fees206

99E.Post‑supply fees not to be demanded or received207

99F.Certain terms and conditions of gift card void207

Subdivision C—Miscellaneous

99G.Regulations may limit application of this Division208

Division 4 — Miscellaneous

100.Supplier must provide proof of transaction etc.208

101.Consumer may request an itemised bill209

102.Prescribed requirements for warranties against defects210

103.Repairers must comply with prescribed requirements211

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 services211

105.Declaring safety standards for consumer goods and product related services212

106.Supplying etc. consumer goods that do not comply with safety standards213

107.Supplying etc. product related services that do not comply with safety standards215

108.Requirement to nominate a safety standard216

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.216

110.Places in which interim bans apply217

111.Ban period for interim bans218

112.Interaction of multiple interim bans219

113.Revocation of interim bans220

Subdivision B — Permanent bans

114.Permanent bans on consumer goods or product related services220

115.Places in which permanent bans apply221

116.When permanent bans come into force221

117.Revocation of permanent bans221

Subdivision C — Compliance with interim bans and permanent bans

118.Supplying etc. consumer goods covered by a ban221

119.Supplying etc. product related services covered by a ban223

Subdivision D — Temporary exemption from mutual recognition principles

120.Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997224

121.Temporary exemption under the Mutual Recognition Act 1992224

Division 3 — Recall of consumer goods

Subdivision A — Compulsory recall of consumer goods

122.Compulsory recall of consumer goods225

123.Contents of a recall notice226

124.Obligations of a supplier in relation to a recall notice227

125.Notification by persons who supply consumer goods outside Australia if there is compulsory recall228

126.Interaction of multiple recall notices229

127.Compliance with recall notices229

Subdivision B — Voluntary recall of consumer goods

128.Notification requirements for a voluntary recall of consumer goods230

Division 4 — Safety warning notices

129.Safety warning notices about consumer goods and product related services232

130.Announcement of the results of an investigation etc.233

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 person234

132.Suppliers to report product related services associated with the death or serious injury or illness of any person236

132A.Confidentiality of notices given under this Division238

Division 6 — Miscellaneous

133.Liability under a contract of insurance239

Part 3‑4 — Information standards

134.Making information standards for goods and services240

135.Declaring information standards for goods and services241

136.Supplying etc. goods that do not comply with information standards241

137.Supplying etc. services that do not comply with information standards243

137A.Safe harbour for complying with information standards about free range eggs244

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 individual244

139.Liability for loss or damage suffered by a person other than an injured individual245

140.Liability for loss or damage suffered by a person if other goods are destroyed or damaged246

141.Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged246

142.Defences to defective goods actions247

Division 2 — Defective goods actions

143.Time for commencing defective goods actions248

144.Liability joint and several248

145.Survival of actions248

146.No defective goods action where workers’ compensation law etc. applies248

147.Unidentified manufacturer248

148.Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard249

149.Representative actions by the regulator250

Division 3 — Miscellaneous

150.Application of all or any provisions of this Part etc. not to be excluded or modified250

Chapter 4 — Offences

Part 4‑1 — Offences relating to unfair practices

Division 1 — False or misleading representations etc.

151.False or misleading representations about goods or services251

152.False or misleading representations about sale etc. of land253

153.Misleading conduct relating to employment255

154.Offering rebates, gifts, prizes etc.256

155.Misleading conduct as to the nature etc. of goods258

156.Misleading conduct as to the nature etc. of services258

157.Bait advertising259

158.Wrongly accepting payment261

159.Misleading representations about certain business activities264

160.Application of provisions of this Division to information providers265

Division 2 — Unsolicited supplies

161.Unsolicited cards etc.266

162.Assertion of right to payment for unsolicited goods or services268

163.Assertion of right to payment for unauthorised entries or advertisements269

Division 3 — Pyramid schemes

164.Participation in pyramid schemes272

Division 4 — Pricing

165.Multiple pricing273

166.Single price to be specified in certain circumstances273

Division 5 — Other unfair practices

167.Referral selling275

168.Harassment and coercion276

Part 4‑2 — Offences relating to consumer transactions

Division 1 — Consumer guarantees

169.Display notices278

Division 2 — Unsolicited consumer agreements

Subdivision A — Negotiating unsolicited consumer agreements

170.Permitted hours for negotiating an unsolicited consumer agreement278

171.Disclosing purpose and identity279

172.Ceasing to negotiate on request280

173.Informing person of termination period etc.281

Subdivision B — Requirements for unsolicited consumer agreements etc.

174.Requirement to give document to the consumer282

175.Requirements for all unsolicited consumer agreements etc.283

176.Additional requirements for unsolicited consumer agreements not negotiated by telephone284

177.Requirements for amendments of unsolicited consumer agreements285

Subdivision C — Terminating unsolicited consumer agreements

178.Obligations of suppliers on termination285

179.Prohibition on supplies etc.286

180.Repayment of payments received after termination287

181.Prohibition on recovering amounts after termination287

Subdivision D — Miscellaneous

182.Certain provisions of unsolicited consumer agreements void288

183.Waiver of rights289

184.Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.289

185.Application of this Division to supplies to third parties290

186.Regulations may limit the application of this Division290

187.Application of this Division to certain conduct covered by the Corporations Act290

Division 3 — Lay‑by agreements

188.Lay‑by agreements must be in writing etc.290

189.Termination charges291

190.Termination of lay‑by agreements by suppliers291

191.Refund of amounts292

Division 3A—Gift cards

191A.Gift cards to be redeemable for at least 3 years292

191B.When gift card ceases to be redeemable to appear prominently on gift card293

191C.Terms and conditions not to allow post‑supply fees293

191D.Post‑supply fees not to be demanded or received294

191E.Regulations may limit the application of this Division294

Division 4 — Miscellaneous

192.Prescribed requirements for warranties against defects294

193.Repairers must comply with prescribed requirements295

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 standards296

195.Supplying etc. product related services that do not comply with safety standards297

196.Requirement to nominate a safety standard298

Division 2 — Bans on consumer goods and product related services

197.Supplying etc. consumer goods covered by a ban299

198.Supplying etc. product related services covered by a ban300

Division 3 — Recall of consumer goods

199.Compliance with recall orders302

200.Notification by persons who supply consumer goods outside Australia if there is compulsory recall303

201.Notification requirements for a voluntary recall of consumer goods303

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 person304

Part 4‑4 — Offences relating to information standards

203.Supplying etc. goods that do not comply with information standards304

204.Supplying etc. services that do not comply with information standards306

Part 4‑5 — Offences relating to substantiation notices

205.Compliance with substantiation notices307

206.False or misleading information etc.308

Part 4‑6 — Defences

207.Reasonable mistake of fact309

208.Act or default of another person etc.309

209.Publication of advertisements in the ordinary course of business310

210.Supplying goods acquired for the purpose of re‑supply311

211.Supplying services acquired for the purpose of re‑supply312

Part 4‑7 — Miscellaneous

212.Prosecutions to be commenced within 3 years313

213.Preference must be given to compensation for victims313

214.Penalties for contraventions of the same nature etc.314

215.Penalties for previous contraventions of the same nature etc.315

216.Granting of injunctions etc.315

217.Criminal proceedings not to be brought for contraventions of Chapter 2 or 3316

Chapter 5 — Enforcement and remedies

Part 5‑1 — Enforcement

Division 1 — Undertakings

218.Regulator may accept undertakings316

Division 2 — Substantiation notices

219.Regulator may require claims to be substantiated etc.317

220.Extending periods for complying with substantiation notices319

221.Compliance with substantiation notices319

222.False or misleading information etc.320

Division 3 — Public warning notices

223.Regulator may issue a public warning notice321

Part 5‑2 — Remedies

Division 1 — Pecuniary penalties

224.Pecuniary penalties321

225.Pecuniary penalties and offences328

226.Defence329

227.Preference must be given to compensation for victims329

228.Civil action for recovery of pecuniary penalties330

229.Indemnification of officers330

230.Certain indemnities not authorised and certain documents void331

Division 2 — Injunctions

232.Injunctions331

233.Consent injunctions333

234.Interim injunctions333

235.Variation and discharge of injunctions333

Division 3 — Damages

236.Actions for damages334

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 regulator334

238.Compensation orders etc. arising out of other proceedings335

Subdivision B — Orders for non‑party consumers

239.Orders to redress etc. loss or damage suffered by non‑party consumers336

240.Determining whether to make a redress order etc. for non‑party consumers337

241.When a non‑party consumer is bound by a redress order etc.338

Subdivision C — Miscellaneous

242.Applications for orders338

243.Kinds of orders that may be made339

244.Power of a court to make orders340

245.Interaction with other provisions340

Division 5 — Other remedies

246.Non‑punitive orders340

247.Adverse publicity orders342

248.Order disqualifying a person from managing corporations343

249.Privilege against exposure to penalty or forfeiture — disqualification from managing corporations344

250.Declarations relating to consumer contracts and small business contracts345

Division 6 — Defences

251.Publication of advertisement in the ordinary course of business345

252.Supplying consumer goods for the purpose of re‑supply346

253.Supplying product related services for the purpose of re‑supply347

Part 5‑3 — Country of origin representations

254.Overview348

255.Country of origin representations do not contravene certain provisions348

258.Proceedings relating to false, misleading or deceptive conduct or representations351

Part 5‑4 — Remedies relating to guarantees

Division 1 — Action against suppliers

Subdivision A — Action against suppliers of goods

259.Action against suppliers of goods351

260.When a failure to comply with a guarantee is a major failure353

261.How suppliers may remedy a failure to comply with a guarantee353

262.When consumers are not entitled to reject goods354

263.Consequences of rejecting goods355

264.Replaced goods356

265.Termination of contracts for the supply of services that are connected with rejected goods356

266.Rights of gift recipients357

Subdivision B — Action against suppliers of services

267.Action against suppliers of services357

268.When a failure to comply with a guarantee is a major failure359

269.Termination of contracts for the supply of services359

270.Termination of contracts for the supply of goods that are connected with terminated services360

Division 2 — Action for damages against manufacturers of goods

271.Action for damages against manufacturers of goods361

272.Damages that may be recovered by action against manufacturers of goods363

273.Time limit for actions against manufacturers of goods364

Division 3 — Miscellaneous

274.Indemnification of suppliers by manufacturers364

275.Limitation of liability etc.365

276.This Part not to be excluded etc. by contract366

276A.Limitation in certain circumstances of liability of manufacturer to seller366

277.Representative actions by the regulator367

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 contracts367

279.Action by consumer to recover amount of loss or damage368

280.Cases where a linked credit provider is not liable369

281.Amount of liability of linked credit providers371

282.Counter‑claims and offsets372

283.Enforcement of judgments etc.372

284.Award of interest to consumers374

285.Liability of suppliers to linked credit providers, and of linked credit providers to suppliers375

286.Joint liability proceedings and recovery under section 135 of the National Credit Code375

Division 2 — Non‑linked credit contracts

287.Liability of suppliers and credit providers relating to non‑linked credit contracts376

Chapter 6—Application and transitional provisions

Part 1—Application and transitional provisions relating to the Consumer Credit Legislation Amendment (Enhancements) Act 2012

288.Application of amendments relating to lay‑by agreements378

289.Application of amendment relating to repairs378

290.Saving of regulations relating to repairs378

Part 1A—Application provision relating to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015

290A.Application379

Part 2—Application and transitional provisions relating to the Competition and Consumer Amendment (Competition Policy Review) Act 2017

291.Application of amendments relating to confidentiality of notices380

292.Application of amendments relating to prohibition on supplies380

Part 3—Application provision relating to the Treasury Laws Amendment (2018 Measures No. 3) Act 2018

295.Application of amendments380

Part 4—Application provisions relating to the Treasury Laws Amendment (Australian Consumer Law Review) Act 2018

296.Application—listed public companies380

297.Application—unsolicited supplies381

298.Application—unsolicited consumer agreements381

299.Application—single price381

300.Application—non‑punitive orders381

301.Application—guarantees relating to the supply of services381

Part 5—Application and transitional provisions relating to the Treasury Laws Amendment (Gift Cards) Act 2018

302.Application of amendments relating to gift cards382

Defined terms

 

Fair Trading Act 2010

An Act to —

·promote and encourage fair trading practices and a competitive and fair market, and protect the interests of consumers, by applying the Australian Consumer Law (with modifications) as a law of Western Australia, and providing for codes of practice; and

·provide for the powers and functions of a Commissioner, including powers to carry out investigations into alleged breaches of this Act; and

·provide for the repeal of the Consumer Affairs Act 1971, Fair Trading Act 1987 and Door to Door Trading Act 1987; and

·make consequential amendments to various Acts 1,

and for related purposes.

 

Part 1  Preliminary

1.Short title

This is the Fair Trading Act 2010.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.Object of Act

The object of this Act is to improve consumer well‑being through consumer empowerment and protection, to foster effective competition, and to enable the confident participation of consumers in markets in which both consumers and suppliers trade fairly.

Part 2 — Interpretation and application

Division 1 — General interpretation

4.Which interpretation Act applies to ACL (WA)

Section 23 deals with the application of the Acts Interpretation Act 1901 (Commonwealth) and the Interpretation Act 1984 of Western Australia to the Australian Consumer Law (WA).

5.Application of s. 6-9 and 17

(1)Sections 6 to 9 apply to this Act other than Part 3 and the Australian Consumer Law (WA).

(2)Section 17 applies to the interpretation of terms used in Part 3 and the Australian Consumer Law (WA).

6.Terms used

In this Act (other than Part 3 and the Australian Consumer Law (WA)) —

acquire includes —

(a)in relation to goods — acquire by purchase or exchange or by taking on lease, on hire or on hire‑purchase; and

(b)in relation to services — accept; and

(c)in relation to an interest in land — acquire by purchase or exchange or by taking on lease, or in any other manner in which an interest in land may be acquired for valuable consideration;

Australian Consumer Law (WA) has the meaning given in section 17;

business includes —

(a)a business not carried on for profit; and

(b)a trade or profession;

Commissioner means the person for the time being designated as the Commissioner under section 55;

consumer has the meaning given in section 7;

Department means the department of the Public Service principally assisting the Minister in the administration of this Act;

disposal, in relation to an interest in land, means disposal by sale, exchange or lease or by any other method by which an interest in land may be disposed of for valuable consideration;

document has the meaning given in the Australian Consumer Law (WA) section 2(1);

goods has the meaning given in the Australian Consumer Law (WA) section 2(1);

interest has the meaning given in the Australian Consumer Law (WA) section 2(1);

provision, in relation to an understanding, means any matter forming part of the understanding;

re‑supply, in relation to goods acquired from a person, includes —

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

(b)a supply to another person of goods in which the first‑mentioned goods have been incorporated;

services has the meaning given in section 8;

supplier means a person who, in the course of business, supplies goods or services;

supply includes —

(a)in relation to goods —

(i)supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(ii)exhibit, expose or have in possession for the purpose of sale, exchange, lease, hire or hire‑purchase or for any purpose of advertisement, manufacture or trade;

and

(b)in relation to services — provide, grant or render for valuable consideration; and

(c)in relation both to goods and to services — donate for promotional purposes;

trade or commerce includes any business or professional activity (whether or not carried on for profit).

7.Term used: consumer

(1)In this Act (other than Part 3 and the Australian Consumer Law (WA)) —

consumer means —

(a)a person who purchases or takes on hire or lease, or is a potential purchaser or hirer or lessee of, or borrows money for the purpose of purchasing, goods otherwise than for resale or letting on hire or leasing; or

(b)a person who uses or is a potential user of, or borrows money for the purpose of using, any service rendered for fee or reward; or

(c)a person who purchases or is the potential purchaser of, or borrows money for the purpose of purchasing, an estate or interest in any land or building otherwise than for resale, letting or leasing; or

(d)a person who becomes a tenant or lessee of, or is a potential tenant or lessee of, any land or building or part of a building otherwise than for assignment or underletting.

(2)However, a person who carries on a trade or business is not a consumer for the purposes of subsection (1) in respect of or in relation to —

(a)goods purchased or taken on hire or lease by that person, or of which that person is a potential purchaser, hirer or lessee, in the course of or for the purpose of the carrying on of that trade or business;

(b)a service used by that person, or of which the person is a potential user, in the course of or for the purpose of the carrying on of that trade or business;

(c)an estate or interest in land or a building purchased by that person, or of which the person is a potential purchaser, in the course of or for the purpose of the carrying on of that trade or business;

(d)any land or building or part of a building of which the person becomes the tenant or lessee, or is a potential tenant or lessee, in the course of or for the purpose of the carrying on of that trade or business.

(3)A person who carries on an agricultural, apicultural, pastoral, horticultural, orcharding, viticultural or other farming undertaking does not carry on a trade or business for the purposes of subsection (2).

8.Term used: services

(1)In this Act (other than Part 3 and the Australian Consumer Law (WA)) —

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.

(2)Without limiting the generality of subsection (1), the definition of services includes the rights, benefits, privileges and facilities that are, or are to be, provided, granted or conferred under —

(a)a contract for or in relation to —

(i)the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii)the provision of gas or electricity or the provision of any other form of energy; or

(iii)the provision for reward of lodging or accommodation; or

(iv)the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction; or

(v)the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

or

(b)a contract of insurance; or

(c)a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or

(d)a contract for or in relation to the lending of money.

(3)The definition of services does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

(4)Legal services as defined in the Legal Profession Act 2008 section 3 are not services for the purposes of this section.

9.Further provisions about interpretation

(1)In this Act (other than Part 3 and the Australian Consumer Law (WA)), unless the contrary intention appears —

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

(b)a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods upon a supply of the goods; and

(c)a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services; and

(d)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

(e)a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with goods or other property or other services; and

(f)a reference to the disposal or acquisition of an interest in land includes a reference to the disposal or acquisition of such an interest together with goods or services; and

(g)a reference to goods or services includes a reference to goods and services; and

(h)a reference to the disposal or acquisition of an interest in land includes a reference to agreeing to dispose of or acquire such an interest, whether or not the agreement is in writing or evidenced by writing.

(2)For the purposes of this Act (other than Part 3 and the Australian Consumer Law (WA)) —

(a)the obtaining of credit by a person in connection with the acquisition of goods or services by the person is an acquisition by the person of services; and

(b)any amount by which the price of the goods or services is increased because credit was obtained is the price of the services represented by the obtaining of credit.

(3)In this Act (other than Part 3 and the Australian Consumer Law (WA)) —

(a)a reference to engaging in conduct is to be read as a reference to doing or refusing to do any act, including —

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

(ii)the arriving at, or the giving effect to a provision of, an understanding;

and

(b)a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is to be read as a reference to the doing of or the refusing to do any act, including —

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

(ii)the arriving at, or the giving effect to a provision of, an understanding;

and

(c)a reference to refusing to do an act includes —

(i)a reference to refraining (otherwise than inadvertently) from doing the act; and

(ii)a reference to making it known that the act will not be done;

and

(d)a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making known a willingness to accept applications, offers or proposals for the person to do the act or to do that act on the condition.

(4)In this Act (other than Part 3 and the Australian Consumer Law (WA)) —

(a)a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

(b)a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.

(5)In this Act (other than Part 3 and the Australian Consumer Law (WA)), a reference to the making of a representation includes a reference to the publishing of a statement.

Division 2 — Application

10.Act binds Crown

(1)This Act binds the Crown not only in right of Western Australia but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

(2)This Act applies to and in respect of the Crown in any of its capacities to the same extent as if the Crown were, in that capacity, a body corporate.

(3)Nothing in this Act makes the Crown in any capacity liable to be prosecuted for an offence.

(4)The protection in subsection (3) does not apply to an authority of the Crown.

(5)This section is subject to Part 3 Division 4.

11.Territorial application of Act

(1)This Act applies to and in respect of an acquisition or supply or the proposed acquisition or supply of goods or services, or the disposal or proposed disposal of an interest in land —

(a)if the person by or to whom the goods or services are or are proposed to be acquired or supplied signs in Western Australia a document relating to the acquisition or supply or the proposed acquisition or supply; or

(b)if the person by or to whom the interest in land is or is proposed to be disposed of signs in Western Australia a document relating to the disposal or the proposed disposal of that interest; or

(c)if that person does not so sign such a document, if the goods or services are or are proposed to be delivered or supplied, or that land is situated, in Western Australia.

(2)Subsection (1) applies —

(a)despite anything to the contrary in any other Act or law; but

(b)except as otherwise expressly provided in or under this Act.

(3)This Act applies to and in relation to —

(a)persons carrying on business within this jurisdiction; or

(b)bodies corporate incorporated or registered under the law of this jurisdiction; or

(c)persons ordinarily resident in this jurisdiction; or

(d)persons otherwise connected with this jurisdiction.

(4)Subject to subsection (3), this Act extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

(5)This Act applies to a contract in the following circumstances, despite the terms of the contract —

(a)if the proper law of a contract for the supply of goods or services to a consumer would, but for a term that it should be the law of some other place or a term to the like effect, be the law of Western Australia;

(b)if 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, provisions of the law of some other country or of another State or of a Territory for all or any of the provisions of this Act.

(6)This section is subject to section 24.

12.Concurrent operation of laws of other jurisdictions not limited

This Act is not intended to exclude or limit the concurrent operation of any law of the Commonwealth or of another State or a Territory.

13.No contracting out

(1)This Act has effect despite any stipulation in any contract or agreement to the contrary.

(2)If the making of a contract contravenes this Act because the contract includes a particular provision, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable.

(3)Subsection (2) is subject to subsection (1) and to any order made under section 105 or 106.

14.Relationship with other Acts and rules of law

(1)This Act is to be read and construed as being in addition to, and not in derogation of or in substitution for, any other Act or rule of law for the time being in force in this State that relates to the duty or liability of persons with respect to goods or services supplied to a consumer.

(2)Except as expressly provided by this Act, nothing in this Act is to be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Act had not been enacted.

15.Inconsistencies with other enactments

(1)This section applies if a provision of the Australian Consumer Law (WA) Part 3‑3 or an applied regulation is inconsistent with —

(a)a provision of an Act specified in Schedule 1; or

(b)a provision of an instrument made under an Act so specified.

(2A)In subsection (1) —

applied regulation means a regulation that —

(a)is referred to in section 19(1)(b); and

(b)is applied by section 19(2)(a); and

(c)has effect for the purposes of the Australian Consumer Law (WA) Part 3‑3.

(2)If this section applies, the provision of the Act so specified, or of the instrument, prevails.

[Section 15 amended: No. 11 of 2013 s. 4; No. 19 of 2016 s. 136.]

Part 3 — The Australian Consumer Law

Division 1 — Object and interpretation

16.Object of this Part

The object of this Part is to apply (with modifications) the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth) as a law of Western Australia.

17.Terms used

(1)In this Part, unless the contrary intention appears —

application law means —

(a)a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

(b)any regulations or other legislative instrument made under a law described in paragraph (a); or

(c)the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications;

Australian Consumer Law means (according to the context) —

(a)the Australian Consumer Law text; or

(b)the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications;

Australian Consumer Law text means the text described in section 18;

Australian Consumer Law (WA) means the provisions applying in this jurisdiction because of section 19;

instrument means any document whatever, including the following —

(a)an Act or an instrument made under an Act;

(b)a law of this jurisdiction or an instrument made under such a law;

(c)an award or other industrial determination or order, or an industrial agreement;

(d)any other order (whether executive, judicial or otherwise);

(e)a notice, certificate or licence;

(f)an agreement;

(g)an application made, prosecution notice lodged, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;

(h)an indictment, presentment, summons or writ;

(i)any other pleading in, or process issued in connection with, a legal or other proceeding;

Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being;

jurisdiction means a State or the Commonwealth;

law, in relation to a Territory, means a law of, or in force in, that Territory;

modifications includes additions, omissions and substitutions;

participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications;

State includes a Territory;

Territory means the Australian Capital Territory or the Northern Territory of Australia;

this jurisdiction means Western Australia.

(2)Terms used in this Part and also in the Australian Consumer Law (WA) have the same meanings in this Part as they have in that Law.

(3)For the purposes of this Part —

(a)a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and

(b)the corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.

Division 2 — Application of Australian Consumer Law

18.Australian Consumer Law text

The Australian Consumer Law text consists of —

(a)Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth); and

(b)the regulations made under section 139G of that Act.

19.Australian Consumer Law text, application of

(1)For the purposes of this section, the Australian Consumer Law text consists of —

(a)Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth), as in force on 26 October 2018 (but as modified by section 36); and

(b)the regulations made under section 139G of that Act, as those regulations are in force from time to time.

(2)The Australian Consumer Law text —

(a)applies as a law of this jurisdiction; and

(b)as so applying, may be referred to as the Australian Consumer Law (WA); and

(c)in so far as it constitutes Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth), is part of this Act; and

(d)in so far as it constitutes regulations made under section 139G of the Competition and Consumer Act 2010 (Commonwealth), is subsidiary legislation for the purposes of this Act.

(3)This section has effect subject to sections 21, 22, 23 and 116(3).

[Section 19 amended: No. 11 of 2013 s. 5; No. 26 of 2019 s. 4.]

[20.Deleted: No. 11 of 2013 s. 6.]

21.Certain instruments to be published, and may be disallowed by Parliament

(1)This section applies to the following instruments —

(a)regulations made under the Competition and Consumer Act 2010 (Commonwealth) section 139G;

(b)a determination under the Australian Consumer Law (WA) section 66(1) (display notices);

(c)a notice under the Australian Consumer Law (WA) section 104(1) or 105(1) (safety standards);

(d)a notice under the Australian Consumer Law (WA) section 114(1) or (2) (permanent bans);

(e)a notice under the Australian Consumer Law (WA) section 117 (revocation of permanent bans);

(f)a notice under the Australian Consumer Law (WA) section 122(1) (recall notices) by a responsible Minister of this jurisdiction;

(g)a notice under the Australian Consumer Law (WA) section 134(1) or 135(1) (information standards).

(2)Where an instrument to which this section applies is made, a copy of the instrument must be published in the Gazette not later than 28 days after the instrument is made.

(3)If a copy of an instrument is not published in the Gazette in accordance with subsection (2) —

(a)the instrument ceases to have effect in this jurisdiction on the expiry of the 28th day after the instrument is made, but without affecting the validity or curing the invalidity of anything done or of the omission of anything in the meantime; but

(b)if a copy of the instrument is subsequently published in the Gazette, the instrument again has effect on and from the day after the day of publication of a copy of the instrument.

(4)Where a copy of an instrument to which this section applies is published in the Gazette, the Interpretation Act 1984 section 42 applies to that instrument as if it were a regulation published in the Gazette.

22.Term used in ACL (WA): regulator

In the Australian Consumer Law (WA) —

regulator means the Commissioner (as defined in section 6).

23.ACL (WA), interpretation of

(1)The Acts Interpretation Act 1901 (Commonwealth) applies as a law of this jurisdiction to the Australian Consumer Law (WA).

(2)For the purposes of subsection (1), the Commonwealth Act mentioned in that subsection applies as if —

(a)the statutory provisions in the Australian Consumer Law (WA) were a Commonwealth Act; and

(b)the regulations in the Australian Consumer Law (WA) or instruments under that Law were regulations or instruments under a Commonwealth Act.

(3)The Interpretation Act 1984 of Western Australia does not apply to —

(a)the Australian Consumer Law (WA); or

(b)any instrument under that Law.

(4)Subsection (3) is subject to section 21.

24.ACL (WA), application of

(1)The Australian Consumer Law (WA) applies to and in relation to —

(a)persons carrying on business within this jurisdiction; or

(b)bodies corporate incorporated or registered under the law of this jurisdiction; or

(c)persons ordinarily resident in this jurisdiction; or

(d)persons otherwise connected with this jurisdiction.

(2)Subject to subsection (1), the Australian Consumer Law (WA) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

Division 3 — References to Australian Consumer Law

25.References to Australian Consumer Law

(1)A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.

(2)Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

26.References to Australian Consumer Law of other jurisdictions

(1)This section has effect for the purposes of an Act, a law of this jurisdiction or an instrument under an Act or such a law.

(2)If a law of a participating jurisdiction other than this jurisdiction provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.

Division 4 — Application of Australian Consumer Law to Crown

27.Division does not apply to Commonwealth

In this Division —

participating jurisdiction or other jurisdiction does not include the Commonwealth.

28.Application law of this jurisdiction binds Crown

The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned.

29.Application law of other jurisdictions binds Crown

(1)The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction.

(2)If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege.

30.Crown not liable to pecuniary penalty or prosecution

(1)Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence.

(2)Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.

(3)The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.

Division 5 — Miscellaneous

31.No doubling‑up of criminal liabilities

(1)For the purposes of this section, a person is convicted of an offence if a court finds the person guilty of the offence, or accepts a plea of guilty of the offence, whether or not a conviction is recorded.

(2)If —

(a)an act or omission is an offence against the Australian Consumer Law (WA) and is also an offence against the application law of another participating jurisdiction; and

(b)the offender has been acquitted or convicted of the offence with which the offender is charged, or has already been convicted or acquitted of an offence of which the offender might be convicted upon the indictment or prosecution notice on which the offender has been charged, under the application law of the other participating jurisdiction,

the offender is not liable to be prosecuted or punished for the offence against the Australian Consumer Law (WA).

(3)Nothing in subsection (2) prevents the Commissioner from making or issuing a statement under section 57.

(4)If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (WA) in respect of the same conduct.

32.Offences against ACL (WA) are crimes

(1)A reference in this section to a person involved in the commission of an offence against the Australian Consumer Law (WA) is to be read as a reference to a person who —

(a)has aided, abetted, counselled or procured the commission of the offence; or

(b)has induced, whether by threats or promises or otherwise, the commission of the offence; or

(c)has been in any way, directly or indirectly, knowingly concerned in, or party to, the commission of the offence; or

(d)has conspired with others to effect the commission of the offence; or

(e)has attempted to commit the offence, or to do any act of a kind referred to in paragraph (a), (b), (c) or (d).

(2)A person who —

(a)commits an offence against the Australian Consumer Law (WA); or

(b)is involved in the commission of an offence against the Australian Consumer Law (WA),

is guilty of a crime.

Penalty: the penalty set out in the Australian Consumer Law (WA).

Summary conviction penalty: the lesser of a fine of $36 000 or the maximum penalty provided by the Australian Consumer Law (WA) for the offence.

[Section 32 inserted: No. 11 of 2013 s. 7.]

33.Pecuniary penalty proceedings under ACL (WA) s. 224, civil rules of evidence etc. apply

The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a pecuniary penalty under the Australian Consumer Law (WA) section 224.

[34.Deleted: No. 19 of 2016 s. 137.]

35.Sale of Goods Act 1895, inconsistency with certain provisions of ACL (WA)

(1)Where a provision of the Australian Consumer Law (WA) Part 3‑2 Division 1 is, in its application to any circumstance, matter or thing, inconsistent with a provision of the Sale of Goods Act 1895 in its application to the same circumstance, matter or thing —

(a)the provision of the Australian Consumer Law (WA) Part 3‑2 Division 1 prevails; and

(b)the provision of the Sale of Goods Act 1895 is inoperative to the extent of the inconsistency.

(2)This section applies despite —

(a)any rule of law or construction to the contrary; and

(b)an agreement that provides otherwise.

36.Competition and Consumer Act 2010 (Cwlth) Sch. 2 modified

(1)This section makes the modifications to the text of Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth), as in force on 1 January 2013, that, together with the regulations referred to in section 19(1)(b), result in the text that section 19(2) applies as the Australian Consumer Law (WA).

(2)In section 73(1) delete paragraphs (b) and (c) and insert:

 

(b)on a Saturday:

(i)between midnight and 9 am; or

(ii)between 5 pm and midnight; or

(c)on any other day:

(i)between midnight and 9 am; or

(ii)between 8 pm and midnight.

 

(3)In section 170(1) delete paragraphs (b) and (c) and insert:

 

(b)on a Saturday:

(i)between midnight and 9 am; or

(ii)between 5 pm and midnight; or

(c)on any other day:

(i)between midnight and 9 am; or

(ii)between 8 pm and midnight.

 

[Section 36 amended: No. 11 of 2013 s. 8.]

[The effect of section 36(2) and (3) is altered by the Fair Trading (Permitted Calling Hours) Regulations 2014 2.]

Division 6 — Transitional

37.Certain injunction proceedings pending at 1 Jan 2011

(1)To the extent that any proceedings to which the Fair Trading Act 1987 section 3C(2)(c) applies are proceedings for an injunction under section 74 or 75 of that Act, the proceedings are taken, after the commencement of this section, to be proceedings for an injunction under the Australian Consumer Law (WA) section 232.

(2)This section overrides the Fair Trading Act 1987 section 3C(2)(c).

38.ACL (WA) Part 2-3 (unfair contract terms), application of to contracts made on or after 1 Jan 2011

(1)The Australian Consumer Law (WA) Part 2‑3 applies to a contract entered into on or after the commencement of this section.

(2)That Part does not apply to a contract entered into before that commencement. However —

(a)if the contract is renewed on or after that commencement — that Part applies to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or

(b)if a term of the contract is varied on or after that commencement, and paragraph (a) has not already applied in relation to the contract — that Part applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.

(3)If subsection (2)(b) applies to a term of a contract, sections 23(2) and 27 of the Australian Consumer Law (WA) apply to the contract.

39.ACL (WA) Part 3-2 Div. 2 (unsolicited consumer agreements), application of to contracts made before 1 Jan 2011 etc.

(1)The Australian Consumer Law (WA) Part 3‑2 Division 2 does not apply to any contract made before the commencement of this section.

(2)The Australian Consumer Law (WA) Part 3‑2 Division 2 applies to a contract made on or after the commencement of this section even though negotiations leading to the formation of the contract may have taken place before the commencement of this section.

(3)The Door to Door Trading Act 1987 section 3C relates to the application of that Act to contracts made before the commencement of this section.

40.ACL (WA) s. 101 (requests for itemised bills), application of for services supplied before 1 Jan 2011

The Australian Consumer Law (WA) section 101 does not apply in relation to a supply of services to the extent that the services were supplied before the commencement of this section.

41.ACL (WA) s. 224(4)(c), interpretation of

The reference in the Australian Consumer Law (WA) section 224(2)(c) to proceedings under Chapter 4 or Part 5‑2 of that Law includes a reference to proceedings, commenced before the commencement of this section, under or in relation to —

(a)Part VC or VI of the Trade Practices Act 1974 (Commonwealth); or

(b)Part II, V, VI or VII of the Fair Trading Act 1987.

Part 4 — Codes of practice

Division 1 — Preliminary

42.Outline of this Part

(1)This Part provides for the making of regulations prescribing a code of practice for fair dealing between a particular class of suppliers and consumers, or by a particular class of persons in relation to consumers.

(2)If a person carries on business in contravention of a prescribed code of practice applying to them, the Commissioner can apply to the State Administrative Tribunal for an order requiring the person to comply with the code and rectify the consequence of the contravention of the code.

(3)This section is intended only as a guide to the general scheme and effect of this Part, and does not limit the other provisions of this Part.

43.Term used: code of practice

In this Part —

code of practice means a code of practice for fair dealing —

(a)between a particular class of suppliers and consumers; or

(b)by a particular class of persons in relation to consumers; or

(c)in relation to the supply of a particular kind of goods or services.

Division 2 — Development and implementation of codes of practice

44.Draft codes of practice, preparation of

(1)The Commissioner may, with the approval of the Minister, prepare a draft code of practice for submission to the Minister for consideration.

(2)The Commissioner must, if the Minister directs, prepare a draft code of practice for submission to the Minister for consideration.

(3)For the purpose of preparing a draft code of practice, the Commissioner must arrange for consultation with, and invite submissions from, persons and organisations that the Commissioner considers would have an interest in the terms of the proposed draft code.

(4)Without limiting subsection (3), the Commissioner must consult with, and invite submissions from, the following —

(a)principal organisations that represent those suppliers that are likely to be affected by the terms of the draft code of practice;

(b)principal organisations representing consumers.

45.Regulations prescribing code of practice

(1)The regulations may prescribe a code of practice that —

(a)has been submitted to the Minister in accordance with section 44; and

(b)has been approved by the Minister with or without amendments.

(2)Regulations prescribing a code of practice must provide that the regulations expire on a date specified in the regulations, which must be a date that is not later than the last day of the period of 3 years after the date on which the code of practice first takes effect.

(3)Regulations prescribing a code of practice may be amended to remove the expiry date of the regulations if —

(a)the Commissioner undertakes a review of the code of practice before the regulations expire; and

(b)in undertaking the review, the Commissioner follows the consultation procedures set out in section 44.

46.Interim code of practice, regulations may prescribe

(1)The regulations may prescribe a code of practice even though the procedures set out in section 44 have not been followed or completed.

(2)A code of practice prescribed under this section is an interim code of practice, and may have effect for a period (not exceeding 6 months) specified in the regulations.

Division 3 — Enforcement of codes of practice

47.SAT’s powers to deal with contraventions of prescribed code of practice

(1)Where it appears to the Commissioner that a person has carried on business in contravention of a prescribed code of practice applicable to that person, the Commissioner may apply to the State Administrative Tribunal for an order under this section.

(2)Where, on the application of the Commissioner, the State Administrative Tribunal is satisfied that a person has carried on business in contravention of a prescribed code of practice applicable to that person, the Tribunal may make either or both of the following orders —

(a)an order that the person cease contravening the code;

(b)an order that the person rectify any consequence of that contravention.

(3)The State Administrative Tribunal may make an order under subsection (2) in relation to a person with that person’s consent, without being satisfied that there are grounds for making the order.

(4)Where the contravention is by a body corporate, and the Tribunal is satisfied that it occurred with the consent or connivance of a person who, at the time of the contravention, was a director of the body corporate or a person concerned in its management, the Tribunal may make the following additional orders —

(a)an order prohibiting the person from continuing to consent to, or connive at, the contravention;

(b)an order prohibiting the person from consenting to, or conniving at, a similar contravention by any other body corporate of which the person is a director or in whose management the person is concerned.

(5)An order under this section may be made subject to any conditions (whether as to the duration of the order or otherwise) the State Administrative Tribunal thinks fit, including —

(a)conditions relating to the future conduct of the person affected; and

(b)conditions specifying the action to be taken by the person to rectify the consequences of the contravention that is the subject of the order.

(6)A person who fails to comply with an order of the State Administrative Tribunal under this section commits an offence.

Penalty: a fine of $50 000.

48.Commissioner may take or defend, or assume the conduct or defence of, proceedings relating to contravention of code of practice

(1)This section applies where —

(a)a person (other than a body corporate) has made a complaint to the Commissioner in respect of a matter arising under a code of practice or in relation to a contravention or suspected contravention of a code of practice; and

(b)the Commissioner, after investigating the complaint, is satisfied —

(i)that the complainant may, with respect to the matter, have a right to take proceedings before a court or the State Administrative Tribunal, or a defence to proceedings taken before a court or the State Administrative Tribunal by another person against the complainant in respect of the matter; and

(ii)that it is in the public interest that —

(I)the Commissioner take or, as the case requires, defend those proceedings on behalf of the complainant; or

(II)if proceedings are already being taken or defended by the complainant with respect to the matter — the Commissioner assume the conduct or defence of those proceedings on behalf of the complainant.

(2)If this section applies, the Commissioner may take, defend or assume the conduct or defence of those proceedings on behalf of, and in the name of, the complainant.

(3)The Commissioner must not take, defend or assume the conduct or defence of any proceedings under this section without first obtaining —

(a)the written consent of the complainant, which once given cannot be revoked unless the Commissioner consents to the revocation; and

(b)the written consent of the Minister, which may be given subject to any conditions the Minister thinks fit.

[Section 48 amended: No. 11 of 2013 s. 9.]

49.Provisions for proceedings Commissioner institutes, defends or assumes conduct or defence of

(1)The following provisions apply in relation to any proceedings the Commissioner institutes, defends or assumes the conduct or defence of under section 48 on behalf of a complainant —

(a)the Commissioner has, on behalf of the complainant, in all respects the same rights in and control over the proceedings, including the right to settle any action or part of any action, as the complainant would have had in the conduct of those proceedings;

(b)the Commissioner may, without consulting or seeking the consent of the complainant, conduct the proceedings in whatever manner the Commissioner thinks appropriate and proper;

(c)any moneys (excluding costs) recovered by the Commissioner belong and must be paid to the complainant without deduction, and any amount awarded against the complainant must be paid by and is recoverable from the complainant;

(d)in all cases the costs of the proceedings must be borne by or paid to and retained by the Commissioner as the case may require;

(e)if any party to the proceedings files a counterclaim, or if the complainant on whose behalf the proceedings are being defended is entitled to file a counterclaim, and that counterclaim is not related to the cause of action, the court or, as the case requires, the State Administrative Tribunal hearing the proceedings —

(i)must, on the application of the Commissioner, order that the counterclaim be heard separately and that the consumer be a party to the counterclaim in the complainant’s own right; and

(ii)may make any other orders or give any directions in that behalf the court or Tribunal thinks fit.

(2)Any money that the Commissioner becomes liable to pay by virtue of this section is to be charged to the Consolidated Account, and this Act, without any further appropriation, is sufficient authority for the payment of the money.

[Section 49 amended: No. 11 of 2013 s. 10.]

50.No doubling‑up of liabilities

(1)For the purposes of this section, a person is convicted of an offence if a court finds the person guilty of the offence, or accepts a plea of guilty of the offence, whether or not a conviction is recorded.

(2)If an act or omission is a contravention of a prescribed code of practice and is also an offence against the Australian Consumer Law (WA), and an order is made under section 47 in respect of that contravention, the offender is not liable to be punished for the offence against the Australian Consumer Law (WA).

(3)If an act or omission is a contravention of a prescribed code of practice and is also an offence against the Australian Consumer Law (WA), and the offender has been convicted of the offence under the Australian Consumer Law (WA), the offender is not liable to have an order made against them under section 47.

51.Action taken for breach of code of practice doesn’t preclude other civil action

(1)The fact that the Commissioner has made an application under section 47 in respect of a matter that is alleged to be a contravention of a prescribed code of practice, or that the State Administrative Tribunal has made an order under that section in respect of that matter, does not prevent any other person from taking proceedings before a court or the State Administrative Tribunal in respect of the matter.

(2)Nothing in this section permits a person other than the Commissioner to make an application under section 47.

52.Transitional provisions for codes of practice prescribed before 1 Jan 2011

(1)Regulations made under the Fair Trading Act 1987 section 84 prescribing a code of practice in accordance with section 43(1) of that Act and that were in force immediately before the commencement of this section continue in force after that commencement as if they were made under section 45, but nothing in section 45(2) and (3) applies in relation to those regulations.

(2)However, in the case of regulations prescribing a code of practice that first took effect at least 3 years before the commencement of this section, those regulations do not continue in force under subsection (1) unless, within the period of 3 years beginning on the date on which that code of practice first took effect, a review, in accordance with the Fair Trading Act 1987 section 42, has been undertaken.

(3)Where regulations (other than regulations to which subsection (2) applies) continue in force under subsection (1), the regulations expire at the close of the last day of the period of 3 years beginning on the date on which the code of practice prescribed by the regulations first took effect unless, within that period —

(a)the Commissioner undertakes a review of the code of practice; and

(b)in undertaking the review, the Commissioner follows the consultation procedures set out in section 44.

(4)Regulations made under the Fair Trading Act 1987 section 84 prescribing an interim code of practice in accordance with section 43(2) of that Act and that were in force immediately before the commencement of this section continue in force after that commencement as if they were made under section 46.

53.Transitional provisions for undertakings under Fair Trading Act 1987 s. 44

(1)The following provisions apply to a deed executed under the Fair Trading Act 1987 section 44 and that was in force immediately before the commencement of this section —

(a)the deed continues in force after that commencement;

(b)a person must observe undertakings given by the person in the deed;

(c)if, on the application of the Commissioner, the State Administrative Tribunal is satisfied that a person has failed to observe an undertaking given by the person in the deed, the State Administrative Tribunal may order the person —

(i)to observe the undertaking; and

(ii)in the case of an undertaking to rectify the consequence of a contravention of a code of practice — to observe the undertaking within a time specified by the State Administrative Tribunal in the order.

(2)A person who contravenes subsection (1)(b) commits an offence.

Penalty: a fine of $10 000.

(3)A prosecution for an offence under subsection (2) can be instituted only by the Commissioner, and only with leave of the State Administrative Tribunal given when making an order under subsection (1)(c).

(4)Section 47(3) to (6) apply in relation to proceedings under subsection (1)(c) as if they were proceedings for an order under that section.

54.Transitional provisions for contraventions of code of practice before 1 Jan 2011

(1)This section applies if —

(a)before the commencement of section 52, a person has carried on business in contravention of a prescribed code of practice applicable to the person; and

(b)the code of practice continues in force under section 52; and

(c)the person did not execute a deed under the Fair Trading Act 1987 section 44 in relation to the contravention of the code of practice before the commencement of this section.

(2)If this section applies —

(a)the Commissioner can make an application under section 47 in respect of the contravention of the code of practice, as long as the application is made not later than 6 months after the commencement of this section; and

(b)the State Administrative Tribunal can deal with the application under that section accordingly.

Part 5 — Administrative provisions

Division 1 — Commissioner

55.Commissioner, designation and title of

(1)In this section —

executive officer has the meaning given by the Public Sector Management Act 1994 section 3(1).

(2)The Minister must, by notice published in the Gazette, designate an executive officer of the Department as the Commissioner for the purposes of this Act.

(3)The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.

56.General functions of Commissioner

(1)The functions of the Commissioner include the following —

(a)to promote the interests of consumers and assist them to a greater awareness in relation to their assessment and use of goods and services;

(b)to collect, collate and disseminate information in respect of matters affecting the interests of consumers;

(c)to receive complaints from consumers concerning matters affecting their interests as consumers, to consider and, if the Commissioner considers it warranted, to investigate those complaints and to take whatever action in respect of those complaints as seems proper to the Commissioner;

(d)to receive complaints of fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers, and to make whatever investigations and inquiries and to take whatever other action in respect of those complaints as seems proper to the Commissioner;

(e)to advise and assist consumers who seek from the Commissioner information or guidance on matters affecting their interests as consumers;

(f)to encourage and undertake the dissemination of information concerning consumer affairs to producers, manufacturers and suppliers of goods or services;

(g)to perform any other functions that are conferred or imposed on the Commissioner by this Act or any other Act.

(2)Without limiting the generality of subsection (1), the Commissioner is to —

(a)make whatever recommendations to the Minister the Commissioner considers necessary or desirable in the interests of consumers and, in particular, investigate and make recommendations to the Minister in relation to any matters that concern the need for, or desirability of, legislative or administrative action in the interests of consumers;

(b)advise the Minister on any matters affecting the interests of consumers that the Minister may refer to the Commissioner;

(c)make recommendations to the Minister for the establishment and maintenance of means by which —

(i)matters that affect the interests of consumers and of persons engaged in the production, manufacture, preparation or supply of goods or in commerce or in the provision of services may receive adequate consideration; and

(ii)information concerning those matters and considerations may be widely disseminated.

(3)The Commissioner may cooperate, associate or consult with organisations that have the power to make investigations of the nature referred to in subsection (2)(a).

57A.Licensing and regulatory functions of Commissioner

The Commissioner has the following functions with respect to the licensing, registration and certification schemes provided for in the Acts specified in Schedule 2 —

(a)to administer the scheme of licensing, registration and certification established under those Acts;

(b)to conduct and promote education and provide advisory services for persons who are licensed, registered or certificated under those Acts, or involved in the administration of those Acts, and for members of the public on —

(i)matters relating to the operation of those Acts;

(ii)matters relating to the operations of persons who are licensed, registered or certificated under those Acts;

(c)to advise the Minister as to the general administration of those Acts;

(d)to make recommendations and submit proposals to the Minister from time to time with respect to regulations to be made under those Acts;

(e)to carry out any other functions conferred on the Commissioner under those Acts.

[Section 57A inserted: No. 58 of 2010 s. 4.]

57.Warnings and information, Commissioner may issue

(1)The Commissioner may publish (in any form) a statement identifying and giving warnings or information about any of the following —

(a)goods that are unsatisfactory or dangerous and persons who supply or are likely to supply those goods;

(b)services supplied in an unsatisfactory or dangerous manner and persons who supply or are likely to supply those services;

(c)unfair business practices and persons who engage or are likely to engage in those practices;

(d)any other matter that adversely affects or may adversely affect the interests of consumers in connection with the acquisition by them of goods or services.

(2)A statement under subsection (1) may identify particular goods, services, business practices, persons, corporate names, business names and trading names.

(3)The Commissioner must not make or issue a statement under this section unless satisfied that it is in the public interest to do so.

58.Instituting, defending or assuming conduct or defence of legal proceedings on behalf of consumers or businesses

(1)This section applies where —

(a)after a complaint or matter has been made or referred to the Department, the Commissioner is satisfied —

(i)that a consumer has a cause of action or a good defence to an action; and

(ii)that it is in the public interest or proper to institute, defend or assume the conduct or defence of legal proceedings on behalf of the consumer;

or

(b)the Commissioner is satisfied that it is proper to institute, defend or assume the conduct or defence of legal proceedings on behalf of a business in relation to the supply or possible supply of goods or services in trade or commerce because a matter of public interest is involved.

(2)If this section applies, the Commissioner may —

(a)where subsection (1)(a) applies, on behalf of the consumer, institute legal proceedings against any other person, or defend any proceedings brought against the consumer, or assume the conduct or defence of proceedings already commenced by or against the consumer, with a view to enforcing or protecting the rights of the consumer in relation to any infringement or suspected infringement by that other person of those rights or of any of the provisions of any Act or any other law relating to the interests of consumers; or

(b)where subsection (1)(b) applies, on behalf of the business, institute legal proceedings against any other person, or defend any proceedings brought against the business, or assume the conduct or defence of proceedings already commenced by or against the business.

(3)The Commissioner must not institute, defend or assume the conduct or defence of any proceedings under this section —

(a)unless either —

(i)the amount claimed or involved in either case does not exceed $100 000 or such greater amount as is prescribed for the purposes of this paragraph; or

(ii)an order for specific performance of a contract, or an order in the nature of an order for specific performance of a contract, is the only remedy sought in the proceedings;

and

(b)without first obtaining —

(i)the written consent of the consumer or, as the case requires, the business, which once given cannot be revoked unless the Commissioner consents to the revocation; and

(ii)the written consent of the Minister, which may be given subject to any conditions the Minister thinks fit.

(4)The Commissioner may make any investigation or inquiry under Part 6 that the Commissioner considers necessary or desirable for the purposes of —

(a)satisfying himself or herself that it is proper to institute, defend or assume the conduct or defence of legal proceedings on behalf of a business under subsection (1)(b); and

(b)instituting, defending or assuming the conduct or defence of those proceedings; and

(c)conducting those proceedings.

(5)Nothing in subsection (4) limits Part 6.

[Section 58 amended: No. 11 of 2013 s. 11.]

59.Provisions for proceedings Commissioner institutes, defends or assumes conduct or defence of

(1)The following provisions apply in relation to any proceedings the Commissioner institutes, defends or assumes the conduct or defence of under section 58 on behalf of a consumer or business —

(a)the Commissioner has, on behalf of the consumer or business, in all respects the same rights in and control over the proceedings, including the right to settle any action or part of any action, as the consumer or business would have had in the conduct of those proceedings;

(b)the Commissioner may, without consulting or seeking the consent of the consumer or business, conduct the proceedings in whatever manner the Commissioner thinks appropriate and proper;

(c)any moneys (excluding costs) recovered by the Commissioner belong and must be paid to the consumer or business without deduction, and any amount awarded against the consumer or business must be paid by and is recoverable from the consumer or business;

(d)in all cases the costs of the proceedings must be borne by or paid to and retained by the Commissioner as the case may require;

(e)if any party to the proceedings files a counterclaim, or if the consumer or business on whose behalf the proceedings are being defended is entitled to file a counterclaim, and that counterclaim is not related to the cause of action and in no way relates to the interests of the consumer as a consumer or, as the case requires, the interests of the business as a business, the court hearing the proceedings —

(i)must, on the application of the Commissioner, order that the counterclaim be heard separately and that the consumer or business be a party to the counterclaim in the consumer’s or business’s own right; and

(ii)may make any other orders or give any directions in that behalf the court thinks fit.

(2)Any money that the Commissioner becomes liable to pay by virtue of this section is to be charged to the Consolidated Account, and this Act, without any further appropriation, is sufficient authority for the payment of the money.

[Section 59 amended: No. 11 of 2013 s. 12.]

60.Delegation by Commissioner

(1)The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under a provision of this or any other Act.

(2)The delegation must be in writing signed by the Commissioner.

(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.

61.Judicial notice of Commissioner’s signature etc.

All courts, judges and persons acting judicially must take judicial notice of —

(a)the official signature of every person who is for the time being, and every person who has at any time been, the Commissioner; and

(b)the fact that the person holds or has held that office.

Division 2 — Offence

62.Advertisements not to imply approval by consumer affairs authority

(1)In this section —

consumer affairs authority —

(a)means —

(i)the Department or the chief executive officer or the Commissioner; or

(iia)an advisory committee appointed under Division 3; or

(ii)any person, or statutory body or authority, appointed or constituted under any law of the Commonwealth or of any State or Territory of the Commonwealth and having powers, functions and duties under the laws of the Commonwealth or that State or Territory similar to those of the Department or the chief executive officer or the Commissioner under the laws of this State;

and

(b)includes —

(i)any officer of the Department; and

(ii)any officer or employee of a statutory body, an advisory committee or an authority referred to in paragraph (a)(iia) or (a)(ii) of this definition;

publish includes —

(a)include in a newspaper or other publication published in this State;

(b)disseminate by the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound;

(c)broadcast by radio or for television;

(d)include on an internet website or otherwise publicly disseminate by means of the internet;

(e)publicly exhibit in, on, over or under any building, vehicle or place, or in the air, in view of persons in or on any street or public place;

(f)include in a document gratuitously sent or delivered to any person or thrown or left on premises occupied by any person or left on a vehicle;

(g)make verbally to any person.

(2)A person must not publish or cause to be published any statement —

(a)that is intended or is apparently intended to promote the sale, hiring or leasing of goods, or the sale of an estate or interest in any land or building, or the letting or leasing of any land or building or part of a building, or the use of a service rendered for fee or reward; and

(b)that states, either expressly or by implication, that any consumer affairs authority has approved, or has refrained from disapproving, the statement or any material particular in the statement or any claim made in the statement or any goods or services depicted or described, whether by a trade name or otherwise, in the statement.

Penalty: a fine of $10 000.

(3)It is a defence in any proceedings for an offence under subsection (2) if the accused satisfies the court that, before the publication of the statement, the Minister consented in writing to its publication.

[Section 62 amended: No. 58 of 2010 s. 5.]

Division 3 — Advisory committees

[Heading inserted: No. 58 of 2010 s. 6.]

Subdivision 1 — Property Industry Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63A.Committee established

A committee called the Property Industry Advisory Committee is established.

[Section 63A inserted: No. 58 of 2010 s. 6.]

63B.Membership

(1)The Committee consists of —

(a)the Commissioner ex officio; and

(b)8 other members or such other number of persons as may be prescribed, appointed by the Minister in accordance with the regulations.

(2)The Minister must appoint a Committee member to be the Chairperson.

[Section 63B inserted: No. 58 of 2010 s. 6; amended: No. 26 of 2019 s. 5.]

63C.Functions

The functions of the Committee are to advise the Minister and the Commissioner on —

(a)the regulation of the real estate, settlement and land valuation industries in Western Australia, including the licensing, regulation and training of persons or businesses who or which undertake the functions of a real estate agent, real estate sales representative, business agent, business sales representative, settlement agent or land valuer; and

(b)the provision by the Commissioner of education, information and advice to consumers and to the real estate, settlement and land valuation industries in Western Australia; and

(c)the criteria required for applications under the Real Estate and Business Agents Act 1978 section 131O; and

(d)any matter referred to the Committee by the Minister or the Commissioner.

[Section 63C inserted: No. 58 of 2010 s. 6.]

63D.Procedure

(1)The Committee may regulate its own procedure.

(2)Subsection (1) is subject to the regulations.

[Section 63D inserted: No. 58 of 2010 s. 6.]

Subdivision 2 — Motor Vehicle Industry Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63E.Committee established

A committee called the Motor Vehicle Industry Advisory Committee is established.

[Section 63E inserted: No. 58 of 2010 s. 6.]

63F.Membership

(1)The Committee consists of —

(a)the Commissioner ex officio; and

(b)8 other members or such other number of persons as may be prescribed, appointed by the Minister in accordance with the regulations.

(2)The Minister must appoint a Committee member to be the Chairperson.

[Section 63F inserted: No. 58 of 2010 s. 6; amended: No. 26 of 2019 s. 6.]

63G.Functions

The functions of the Committee are to advise the Minister and the Commissioner on —

(a)the regulation of the motor vehicle dealing and repair industry in Western Australia, including the licensing, certification and training of persons or businesses who or which engage in motor vehicle dealing and repair; and

(b)the provision by the Commissioner of education, information and advice to consumers and to the motor vehicle dealing and repair industry in Western Australia; and

(c)any matter referred to the Committee by the Minister or the Commissioner.

[Section 63G inserted: No. 58 of 2010 s. 6.]

63H.Procedure

(1)The Committee may regulate its own procedure.

(2)Subsection (1) is subject to the regulations.

[Section 63H inserted: No. 58 of 2010 s. 6.]

Subdivision 3 — Consumer Advisory Committee

[Heading inserted: No. 58 of 2010 s. 6.]

63I.Committee established

A committee called the Consumer Advisory Committee is established.

[Section 63I inserted: No. 58 of 2010 s. 6.]

63J.Membership

(1)The Committee consists of —

(a)the Commissioner ex officio; and

(b)8 other members or such other number of persons as may be prescribed, appointed by the Minister in accordance with the regulations.

(2)The Minister must appoint a Committee member to be the Chairperson.

[Section 63J inserted: No. 58 of 2010 s. 6; amended: No. 26 of 2019 s. 7.]

63K.Functions

The functions of the Committee are to advise the Minister and the Commissioner on —

(a)the activities and policies of the Department as they affect consumers; and

(b)current and emerging consumer issues; and

(c)research and education projects relating to consumers; and

(d)any matter referred to the Committee by the Minister or the Commissioner.

[Section 63K inserted: No. 58 of 2010 s. 6.]

63L.Procedure

(1)The Committee may regulate its own procedure.

(2)Subsection (1) is subject to the regulations.

[Section 63L inserted: No. 58 of 2010 s. 6.]

Subdivision 4 — Regulations prescribing committee procedures, etc.

[Heading inserted: No. 58 of 2010 s. 6.]

63M.Regulations

(1)The regulations may provide for the constitution and operation of the advisory committees established under this Division.

(2)Without limiting the generality of subsection (1), the regulations may —

(a)require that persons appointed as members of a committee —

(i)possess particular expertise or qualifications; or

(ii)represent particular interest groups, industries or occupations;

(b)provide for the number of members, the manner, and terms and conditions of appointment, and the resignation and removal of members of the committees;

(c)provide for the appointment of deputies of members;

(d)provide for the manner in which members of the committees are to disclose interests;

(e)regulate the procedure for meetings of the committees, including the quorum for meetings;

(f)provide for the remuneration of members of the committees (other than a member ex officio).

[Section 63M inserted: No. 58 of 2010 s. 6.]

Part 6 — Investigation and enforcement

Division 1 — Preliminary

[Heading inserted: No. 23 of 2014 s. 10.]

63.Terms used

In this Part —

authorised person means —

(a)the Commissioner; and

(b)in relation to a power of the Commissioner under a provision of this Act or any other Act, a person to whom that power is delegated under section 60; and

(c)an investigator, or a police officer assisting in an investigation under section 88D;

investigator means a person designated under section 64 as an investigator;

motor vehicle has the meaning given in the Road Traffic (Administration) Act 2008 section 4.

[Section 63 amended: No. 58 of 2010 s. 7; No. 8 of 2012 s. 102.]

64A.Authorised persons cannot be public officers under Criminal Investigation Act 2006

The office held by an authorised person cannot be prescribed by an Act or regulations under the Criminal Investigation Act 2006 section 9(1)(a).

[Section 64A inserted: No. 23 of 2014 s. 11.]

Division 2 — Investigators

64.Designating people as investigators

The Commissioner may designate any of the following persons as an investigator for the purposes of this Part —

(a)any person employed in the Department;

(b)any person who —

(i)is an officer of a Public Sector agency that provides services to the Department; and

(ii)assists in the exercise of the Commissioner’s functions under this Act;

(c)any person engaged by the chief executive officer to assist in the exercise of the Commissioner’s functions under this Act.

65.Certificate of authority of investigator

(1)The Commissioner is to provide each investigator with a document, signed by the Commissioner, certifying that the person is entitled to exercise the powers of an investigator.

(2)A person to whom a document is provided under this section and who ceases to be an investigator must return the document to the Commissioner as soon as practicable.

(3)A person who contravenes subsection (2) without reasonable excuse, the onus of proving which is on the person, commits an offence.

Penalty: a fine of $1 000.

66.Certificate of authority to be produced on demand

An investigator must produce the document provided under section 65 when demanded by a person in respect of whom the investigator performs, has performed, or is proposing to perform any function under this Act or another Act.

67.Persons assisting investigators

(1)Where an investigator is exercising any of the investigator’s powers under this Part, a person (the assistant), including an interpreter, may accompany the investigator to assist the investigator if the investigator considers the assistance is necessary.

(2)The assistant —

(a)may do such things and in such manner as the investigator reasonably requires to assist the investigator to exercise the investigator’s powers; but

(b)must not do anything that the investigator does not have power to do, except as permitted under a warrant under Division 3.

(3)Anything done lawfully by the assistant is taken for all purposes to have been done by the investigator.

Division 3 — General powers

68.Investigations and inquiries, Commissioner’s powers to make

(1)The Commissioner may, of the Commissioner’s own motion, make any investigation or inquiry that the Commissioner considers necessary or expedient for the purposes of carrying out the Commissioner’s functions under this Act or any other Act.

(2)An authorised person may make an investigation or inquiry under this section on behalf of the Commissioner.

69.Investigations and inquiries, powers for

(1)For the purposes of carrying out any investigation or inquiry in the course of carrying out the Commissioner’s functions under this Act or any other Act, an authorised person may —

(a)require any person —

(i)to give whatever information the authorised person requires in relation to any matter the subject of an investigation or inquiry; and

(ii)to answer any question put to the person in relation to any matter the subject of an investigation or inquiry;

and

(b)require any person to produce any document or thing relating to an investigation or inquiry; and

(c)enter at all reasonable times and search any premises or motor vehicle named in a warrant obtained in accordance with this Division and exercise the powers set out in the warrant; and

(d)make a copy or abstract of any document produced or inspected under this section, or of any entry made in the document.

(2)A requirement made under subsection (1)(a) —

(a)may be made orally or by notice in writing served on the person required to give information or answer a question, as the case requires; and

(b)must specify the time at or within which the information is to be given or the question is to be answered, as the case requires; and

(c)may, by its terms, require that the information or answer required —

(i)be given orally or in writing; and

(ii)be given at or sent or delivered to any place specified in the requirement; and

(iii)in the case of written information or answers, be sent or delivered by any means specified in the requirement; and

(iv)be given on oath or affirmation or by statutory declaration.

(3)An authorised person may administer an oath or affirmation or witness a statutory declaration for the purposes of subsection (2)(c)(iv).

(4)A requirement made under subsection (1)(b) —

(a)must be made by notice in writing served on the person required to produce a document or thing, unless the circumstances require the authorised person to have immediate access to the document or thing, in which case the requirement may be given orally; and

(b)must specify the time at or within which the document or thing is to be produced; and

(c)may, by its terms, require that the document or thing required be produced —

(i)at any place specified in the requirement; and

(ii)by any means specified in the requirement.

(5)Where, under subsection (1)(a) or (b), an authorised person orally requires a person to give any information, answer any question or produce any document or thing, the authorised person must inform the other person that the other person is required, under this Act or another Act, to give the information, answer the question or produce the document or thing, as the case requires.

(6)Where, under subsection (1)(a) or (b), a person is required by notice in writing to give any information, answer any question or produce any document or thing, the notice must state that the person is required, under this Act or another Act, to give the information, answer the question or produce the document or thing, as the case requires.

70.Interviews under s. 69(1)(a), conduct of

(1)An interview conducted by an authorised person under section 69(1)(a) must be conducted in private if —

(a)the authorised person considers it appropriate; or

(b)the person being interviewed so requests.

(2)Subsection (1) does not limit the operation of section 67 or prevent a representative of the person being interviewed from being present at the interview.

(3)Subsection (1) may be invoked during an interview by —

(a)the authorised person; or

(b)the person being interviewed.

(4)If subsection (1) is invoked during an interview, the subsection applies to the remainder of the interview.

71.Warrant to enter premises or motor vehicle

(1)If an authorised person considers in a particular case that there are reasonable grounds for believing that entry to premises or a motor vehicle is necessary for the purposes of carrying out any investigation or inquiry in the course of carrying out the Commissioner’s functions under this Act or any other Act, the authorised person may apply to a magistrate or justice of the peace for a warrant to be issued in respect of those premises or that motor vehicle.

(2)An application for a warrant must —

(a)be in writing; and

(b)be accompanied by a notice in writing from the authorised person stating that the person considers in the particular case that there are reasonable grounds for believing that entry to premises or a motor vehicle is necessary for the purposes of carrying out an investigation or inquiry in the course of carrying out the Commissioner’s functions under this Act or another Act; and

(c)set out the grounds for seeking the warrant; and

(d)describe the premises or motor vehicle that are to be entered.

(3)A magistrate or justice of the peace to whom an application is made under this section must refuse it if —

(a)the application does not comply with the requirements of this Act; or

(b)when required to do so by the magistrate or justice of the peace, the applicant does not give to the magistrate or justice of the peace more information about the application.

(4)The information in an application or given to a magistrate or justice of the peace under this section must be verified before the magistrate or justice of the peace on oath or affirmation or by affidavit, and the magistrate or justice of the peace may for that purpose administer an oath or affirmation or take an affidavit.

72.Warrants wanted urgently, may be obtained by telephone etc.

(1)If an authorised person requires a warrant urgently, or a magistrate or justice of the peace is not available within a reasonable distance of the authorised person, the authorised person may apply to a magistrate or justice of the peace by telephone, fax or other electronic means for a warrant under section 71.

(2)The magistrate or justice of the peace may —

(a)require communication by voice to the extent that it is practicable in the circumstances; and

(b)make a recording of the whole or any part of any such communication by voice.

(3)Before applying for the warrant, the authorised person must prepare an affidavit that sets out the grounds on which the warrant is sought.

(4)If it is necessary to do so, the authorised person may apply for the warrant before the affidavit is sworn or affirmed.

(5)The magistrate or justice of the peace may complete and sign the same warrant that the magistrate or justice of the peace would issue under section 74 if the application had been made under section 71 if the magistrate or justice of the peace is satisfied that there are reasonable grounds for issuing the warrant, after having —

(a)considered the terms of the affidavit; and

(b)received such further information (if any) as the magistrate or justice of the peace requires concerning the grounds on which the issue of the warrant is sought.

73.Warrants by telephone etc., further provisions for

(1)If a magistrate or justice of the peace completes and signs a warrant under section 72(5) —

(a)the magistrate or justice of the peace must —

(i)tell the authorised person what the terms of the warrant are; and

(ii)tell the authorised person the day on which and the time at which the warrant was signed; and

(iii)tell the authorised person the day (not more than one week after the magistrate or justice of the peace completes and signs the warrant) on which the warrant ceases to have effect; and

(iv)record on the warrant the reasons for issuing the warrant;

and

(b)the authorised person must —

(i)complete a form of warrant in the same terms as the warrant completed and signed by the magistrate or justice of the peace; and

(ii)write on the form the name of the magistrate or justice of the peace and the day on which and the time at which the warrant was signed.

(2)The authorised person must also, not later than the day after the day of expiry or execution of the warrant, whichever is the earlier, send to the magistrate or justice of the peace —

(a)the form of warrant completed by the authorised person; and

(b)the affidavit referred to in section 72(3), which must have been duly sworn or affirmed.

(3)When the magistrate or justice of the peace receives those documents, the magistrate or justice of the peace must —

(a)attach them to the warrant that the magistrate or justice of the peace completed and signed; and

(b)deal with them in the way in which the magistrate or justice of the peace would have dealt with them if the application had been made under section 71.

(4)A form of warrant duly completed under subsection (1)(b) is authority for the same powers as are authorised by the warrant signed by the magistrate or justice of the peace.

(5)If a magistrate or justice of the peace completes and signs a warrant under section 72(5), in any proceedings a court must assume, unless the contrary is proved, that the exercise of a power was not authorised by the warrant if —

(a)it is material, in those proceedings, for the court to be satisfied that the exercise of the power was authorised by this section; and

(b)the warrant is not produced in evidence.

74.Warrants, issue and effect of

(1)A magistrate or justice of the peace to whom an application is made under section 71 may issue a warrant if satisfied that the authorised person has reasonable grounds for believing that entry and inspection of the premises or motor vehicle are necessary for the purposes of carrying out an investigation or inquiry under this Act or another Act.

(2)A warrant under subsection (1) authorises the person to whom the warrant is issued —

(a)to enter the premises or motor vehicle named in the warrant and search the premises or motor vehicle and any thing that is found on the premises or in or on the motor vehicle; and

(b)to inspect documents and other things, and take copies or extracts from documents found on the premises or in or on the motor vehicle; and

(c)to inspect, examine, take measurements of, or conduct tests on, any thing found on the premises, or in or on the motor vehicle, that is relevant to the investigation or inquiry; and

(d)to take and remove for examination, analysis or testing a sample of any thing found on the premises, or in or on the motor vehicle, that is relevant to the investigation or inquiry, without paying for the sample; and

(e)to inspect any service carried on in the premises or from the motor vehicle; and

(f)to take measurements or recordings of any sort; and

(g)to take photographs, sound and video recordings and drawings of the premises or motor vehicle searched, and of any thing found in those premises or in or on that motor vehicle, if the person exercising the power has reasonable grounds for believing that the photographs or sound or video recordings or drawings may be relevant to the purposes of the entry and search; and

(h)to seize things that may be seized under section 79.

(3)The warrant must state —

(a)the purpose for which the warrant is issued; and

(b)the name of the person to whom the warrant is issued; and

(c)a description of the premises or motor vehicle that may be entered.

(4)The magistrate or justice of the peace who issues a warrant must cause a record to be made of particulars of the grounds that the magistrate or justice of the peace has relied on to justify the issue of the warrant.

75.Warrants, powers under to obtain access information for computers etc.

(1)In this section —

access information includes access codes, passwords, and encryption keys, and any related information that enables access to a computer or other data storage device;

specified person means a person who —

(a)is the owner or lessee of the computer or other data storage device, or is in possession or control of the computer or other data storage device, an employee of any of the above, or any service provider who provides service to the above and holds access information; and

(b)has relevant knowledge of —

(i)the computer or a computer network of which the computer or other data storage device forms a part; or

(ii)measures applied to protect data held in, or accessible from, the computer or other data storage device.

(2)A person executing a warrant under section 74 may require a specified person to provide access information and other information or assistance that is reasonable and necessary to allow the person executing the warrant to access data held in, or accessible from —

(a)a computer that is on the premises or in or on the motor vehicle named in the warrant; or

(b)any other data storage device that is on the premises or in or on the motor vehicle named in the warrant.

76.Warrants, further powers under

(1)A warrant under section 74 also authorises the person to whom the warrant is issued —

(a)to bring and use in the premises or in or on the motor vehicle named in the warrant any equipment, to use any equipment found in the premises or in or on the motor vehicle, and to extract any electricity or other form of energy from the premises or vehicle to operate the equipment that it is reasonable to use in the circumstances, for the purposes of executing the warrant; and

(b)to access and copy intangible material from computers and other data storage devices located at or accessible from the premises or vehicle named in the warrant (including copying by means of previewing, cloning, or other forensic methods either before or after removal for examination); and

(c)to use any reasonable measures to —

(i)gain access to any computer or other data storage device that is at the premises or in or on the vehicle named in the warrant, or that can be accessed from a computer or other data storage device that is at those premises or in or on that vehicle; and

(ii)create a forensic copy of any material in such a computer or other data storage device.

(2)This section does not limit section 74, 75 or 78.

77.Damage to equipment or data, compensation for

(1)This section applies where —

(a)either —

(i)damage is caused to equipment as a result of it being operated as mentioned in section 76; or

(ii)the data recorded on or accessible from the equipment is damaged;

and

(b)the damage was caused as a result of —

(i)insufficient care being exercised in selecting the person who was to operate the equipment; or

(ii)insufficient care being exercised by the person operating the equipment.

(2)Where this section applies, the owner of the equipment or the user of data recorded on or accessible from the equipment is entitled to compensation for the damage.

(3)For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.

(4)An application for compensation is to be made to the Commissioner.

(5)In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises (or the person in charge of the motor vehicle, as the case requires) and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.

(6)Any compensation that is payable under this section is to be charged to the Consolidated Account, and this Act, without further appropriation, is sufficient authority for the payment of the compensation.

78.Warrants, execution and duration of

(1)Entry authorised by a warrant under section 74 may be made with whatever assistance and equipment is reasonably necessary for the purpose for which entry is required.

(2)A person executing a warrant under section 74, and a person assisting that person, may use any force that is reasonably necessary for the execution of the warrant.

(3)A warrant authorising the entry and search of a motor vehicle authorises the person executing the warrant to enter any place where the person has reasonable grounds to believe that the vehicle is, for the purpose of locating it and searching it.

(4)Before entering any premises or motor vehicle under a warrant, the person executing the warrant must show the person, if any, who gives the person entry to the premises or motor vehicle —

(a)in the case of the Commissioner, a document signed by the Minister and certifying that the person is the Commissioner; and

(b)in the case of an authorised person other than the Commissioner, a document signed by the Commissioner and certifying that that person is an authorised person.

(5)The person executing the warrant must produce it for inspection if asked by —

(a)the occupier or a person in charge of the premises; or

(b)a person in charge of the motor vehicle.

(6)When executing a warrant, an authorised person may require any person who has the control of any premises, motor vehicle or thing that the authorised person is authorised to enter or inspect to furnish reasonable access to it and to give other reasonable assistance.

(7)A warrant ceases to have effect on the earliest of the following —

(a)at the end of the period of one month after its issue;

(b)if it is withdrawn by the magistrate or justice of the peace who issued it;

(c)when it is executed.

79.Seizing things

(1)An authorised person may seize a document or other thing that is produced or given in response to a requirement under this Division, or that is found as the result of executing a warrant under this Division.

(2)However, a document or other thing cannot be seized unless the authorised person reasonably suspects that the document or thing —

(a)is being, or has been, used to commit a breach of this Act or another Act that confers functions on the Commissioner; or

(b)may provide evidence of the commission of a breach of this Act or another Act that confers functions on the Commissioner.

(3)As soon as practicable after the document or other thing is seized, the authorised person must give a receipt for it to the person from whom it was seized.

(4)The receipt must clearly describe the document or thing seized and its condition.

(5)If, for any reason, it is not practicable to comply with subsection (3), the authorised person must —

(a)leave the receipt at the place of seizure; and

(b)ensure the receipt is left in a reasonably secure way and in a conspicuous position.

80.Seized things, copies of to be provided

(1)This section applies if the person executing a warrant relating to premises seizes, under section 79 —

(a)a document, film, computer file or other thing that can be readily copied; or

(b)a storage device, the information in which can be readily copied.

(2)Where this section applies, the person executing the warrant must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the document, film, computer file, thing or information to that person as soon as practicable after the seizure.

(3)Subsection (2) does not apply if possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

81.Seized things, access to by owner

(1)Until a thing seized under section 79 is forfeited or returned, the person in whose custody the seized thing is must allow its owner to inspect it and, if it is a document, to copy it.

(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

82.Seized things, return of

(1)Where a document or other thing is seized under section 79, an authorised person may retain the document or other thing for as long as is reasonably necessary for the purposes of —

(a)the investigation to which the document or other thing is relevant; and

(b)any proceedings to which the document or other thing is relevant.

(2)When the retention of the document or other thing ceases to be reasonably necessary for those purposes, the authorised person must ensure that the document or other thing is delivered to the person who appears to the authorised person to be entitled to possession of it.

83.Seizure, SAT may review

(1)A person aggrieved by the seizure of any thing under section 79 may apply to the State Administrative Tribunal for a review of the decision to seize the thing.

(2)In dealing with an application under subsection (1), the State Administrative Tribunal may determine whether the thing seized must be destroyed, disposed of, forfeited to the State, restored to the person from whom it was seized or otherwise dealt with.

(3)Subsection (2) does not limit the powers that the State Administrative Tribunal Act 2004 gives the State Administrative Tribunal.

(4)If an application under subsection (1) consists of or includes a claim that legal professional privilege applies to the thing seized, the State Administrative Tribunal hearing the application is to be constituted by —

(a)a judicial member; and

(b)such other members, if any, as the President considers appropriate.

(5)In subsection (4), each of these terms has the meaning given in the State Administrative Tribunal Act 2004 section 3(1) —

judicial member

President

[Section 83 amended: No. 23 of 2014 s. 12.]

84.Seized things, forfeiture of

(1)The Commissioner may determine that a thing seized under section 79 is forfeited to the State if the authorised person who seized the thing —

(a)cannot find its owner, after making reasonable inquiries; or

(b)cannot return the thing to the owner or other person entitled to possession of the thing, after making reasonable efforts.

(2)In applying subsection (1) —

(a)subsection (1)(a) does not require the authorised person to make inquiries if it would be unreasonable to make inquiries to find the owner; and

(b)subsection (1)(b) does not require the authorised person to make efforts if it would be unreasonable to make efforts to return the thing to the owner or other person entitled to possession of the thing.

(3)Regard must be had to a thing’s nature, condition and value in deciding —

(a)whether it is reasonable to make inquiries or efforts; and

(b)if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.

85.Forfeited things, dealing with

(1)On the forfeiture of a thing to the State under section 84, the thing becomes the property of the State, and may be dealt with as the chief executive officer considers appropriate.

(2)Without limiting subsection (1), the chief executive officer may cause the thing to be destroyed, sold or disposed of.

86.Privilege against self‑incrimination doesn’t apply

(1)Where under section 69 a person is required to give any information, or answer any question or produce any document or thing —

(a)that person cannot refuse to comply with that requirement on the ground that the information, answer, document or thing may tend to incriminate the person or render the person liable to any penalty; but

(b)the information or answer given, or document or thing produced, by the person is not admissible in evidence in any proceedings against the person other than proceedings in respect of an offence against section 88(1)(b).

(2)This section is without prejudice to the provisions of the Evidence Act 1906 section 11.

87.Information obtained, use of etc.

(1)Information concerning the affairs of a person that is obtained under this Division by an authorised person may (for the purposes of section 112 (which relates to the confidentiality of information officially obtained)) be recorded, used or disclosed on the basis that it has been acquired by the authorised person for the purposes of this Act.

(2)Where an authorised person copies a document under section 69(1)(d) or when executing a warrant —

(a)the authorised person may certify the copy as being a true and accurate copy of the document; and

(b)in the absence of proof to the contrary, the certified copy is to be accepted by any court or tribunal as evidence of, and as having equal validity as, the original.

Division 4A — Specific powers for enforcement of licensing and regulatory provisions

[Heading inserted: No. 58 of 2010 s. 8.]

88A.Terms used

In this Division —

authorisation means a licence, registration, approval, permit, exemption, certificate or other form of authority;

registration Act means an Act listed in Schedule 2;

regulated activity means an occupation or activity that can be lawfully carried on only under an authorisation granted or obtained under a registration Act;

regulated person means a person who carries on a regulated activity.

[Section 88A inserted: No. 58 of 2010 s. 8.]

88B.Investigations and inquiries for licensing and regulatory purposes, Commissioner’s powers to make

(1)For the purposes of performing the Commissioner’s functions under section 57A, the Commissioner may, of the Commissioner’s own motion, make any investigation or inquiry that the Commissioner considers necessary or expedient for any of the following purposes —

(a)determining any application or other matter before the Commissioner;

(b)determining whether or not a regulated person is or has been complying with —

(i)the conditions, if any, of their authorisation; or

(ii)the requirements of the registration Act under which he or she holds an authorisation; or

(iii)a code of conduct applying to the regulated person under a registration Act;

(c)determining whether or not any other cause exists that might be considered by the Commissioner to be grounds for disciplinary action against a regulated person under a registration Act;

(d)detecting offences against a registration Act.

(2)An authorised person may make an investigation or inquiry under this section on behalf of the Commissioner.

[Section 88B inserted: No. 58 of 2010 s. 8.]

88C.Authorised persons’ powers for this Division

Authorised persons may exercise the powers set out in Division 3 for the purposes of the performance of any function under this Division.

[Section 88C inserted: No. 58 of 2010 s. 8.]

88D.Police assistance with investigations and inquiries

(1)The Commissioner of Police must, at the request of the Commissioner, arrange for one or more police officers —

(a)to make an investigation or inquiry relating to any matter that is the subject of investigation or inquiry under section 88B; and

(b)to report on the results of their investigation or inquiry.

(2)The report must be forwarded to the Commissioner.

(3)Where a police officer makes an investigation or inquiry or report relating to any matter that is the subject of investigation or inquiry under section 88B —

(a)in addition to any power, authority, and immunity of the police officer apart from this Act, the police officer has the same powers, authorities, and immunities as an investigator appointed under this Act has in respect of the same matter; and

(b)for the purposes of section 66, it is sufficient if the police officer identifies himself or herself as a police officer to the person, if any, affording entry to the police officer.

[Section 88D inserted: No. 58 of 2010 s. 8.]

88E.Compliance checks at regulated person’s business premises, powers for

(1A)This section does not apply to the extent that the purpose of exercising a power under subsection (1) is in relation to a regulated activity carried on by a regulated person under the Charitable Collections Act 1946.

(1)An authorised person may, for all or any of the purposes listed in subsection (2) —

(a)during normal business hours, enter premises where the business of a regulated person is being carried on, without obtaining a warrant under section 74; and

(b)exercise the powers in sections 69, 79 and 87 once entry is made.

(2)The purposes referred to in subsection (1) are as follows —

(a)to determine whether or not a regulated person is or has been complying with the conditions, if any, of their authorisation;

(b)to determine whether or not a regulated person is or has been complying with the requirements of the registration Act under which he or she holds an authorisation;

(c)to determine whether or not a regulated person is or has been complying with a code of conduct applying to the registered person under a registration Act.

(3)An authorised person may invoke the powers in subsection (1) even though an investigation is not under way in relation to any particular regulated person.

[Section 88E inserted: No. 58 of 2010 s. 8; amended: No. 25 of 2019 s. 28.]

Division 4 — Offences

88.Failing to cooperate with investigation

(1)A person commits an offence who, without reasonable excuse (proof of which lies on the person), when required under Division 3 or 4A to give any information, answer any question or produce any document or thing —

(a)fails to give that information or answer that question at or within the time specified in the requirement; or

(b)gives any information or answer that is false or misleading in any material particular; or

(c)fails to produce that document or thing at or within the time specified in the requirement.

Penalty: a fine of $10 000.

(2)It is a defence in any proceeding for an offence under subsection (1)(a) or (c) for the accused to show —

(a)that, in the case of an alleged offence arising out of a requirement made orally under section 69, the authorised person did not, when making the requirement, inform the accused that he or she was required under this Act or the other Act that is relevant to give the information, answer the question or produce the document or thing, as the case requires; or

(b)that, in the case of an alleged offence arising out of a requirement made by notice in writing under section 69, the notice did not state that the accused was required under this Act or the other Act that is relevant to give the information, answer the question or produce the document or thing, as the case requires; or

(c)that the time specified in the requirement did not give the accused sufficient notice to enable him or her to comply with the requirement; or

(d)that, in any case, the authorised person did not, before making the requirement, have reasonable grounds to believe that compliance with the requirement would materially assist in the investigation or inquiry being carried out.

[Section 88 amended: No. 58 of 2010 s. 9.]

89.Obstructing authorised person

(1)A person must not prevent or attempt to prevent an authorised person from entering premises or a motor vehicle in the exercise of the authorised person’s powers under section 69.

Penalty: a fine of $2 000.

(2A)A person must not prevent or attempt to prevent an authorised person from entering business premises in the exercise of the authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(2)A person must not obstruct or impede an authorised person in the exercise of the authorised person’s powers under section 69 or 88E.

Penalty: a fine of $2 000.

(3)A person must comply with a requirement to assist an authorised person executing a warrant under section 74 when requested to do so under section 75(2).

Penalty: a fine of $2 000.

(4)A person must comply with a requirement to furnish reasonable access to a place or motor vehicle, or to give other reasonable assistance to an authorised person under section 78(6).

Penalty: a fine of $2 000.

(5A)A person must comply with a requirement to furnish reasonable access to business premises, or to give other reasonable assistance to an authorised person, when the authorised person is exercising the authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(5)For the purposes of this section, a reference to an authorised person includes an assistant accompanying an investigator in accordance with section 67.

[Section 89 amended: No. 58 of 2010 s. 10.]

Part 7 — Criminal and civil proceedings

Division 1 — Preliminary

90.Term used: person involved in a contravention of a provision of this Act

A reference in this Part to a person involved in a contravention of a provision of this Act is to be read as a reference to a person who —

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

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

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

(d)has conspired with others to effect the contravention; or

(e)has attempted to contravene the provision, or to do any act of a kind referred to in paragraph (a), (b), (c) or (d).

[Section 90 amended: No. 11 of 2013 s. 13.]

Division 2 — Criminal proceedings

91.Time limit for commencing proceedings

Proceedings for an offence against this Act may be commenced within 3 years after the alleged commission of the offence.

92.Who may institute criminal proceedings

(1)Prosecutions for offences against this Act may be instituted by the Commissioner or by a person authorised in writing by the Commissioner.

(2)No other person may institute a prosecution for an offence against this Act unless written consent to the institution of the prosecution is given by —

(a)the Commissioner; or

(b)a person authorised in writing by the Commissioner to give consents under this section.

(3)In proceedings for an offence against this Act, a document giving consent to the institution of a prosecution and purporting to have been signed by the Commissioner, or by an authorised person, is evidence of that consent without proof of the signature.

93.Court of summary jurisdiction to be constituted by magistrate

A court of summary jurisdiction dealing with an offence under this Act is to be constituted by a magistrate.

94.Courts’ other powers in criminal proceedings

(1)Where proceedings in the Supreme Court or the District Court are taken against a person for contravening, or being involved in a contravention of, a provision of this Act, the Court, in addition to dealing with the offence charged, may —

(a)grant an injunction under section 99 or 100 against the person in relation to —

(i)the conduct that constitutes, or is alleged to constitute, the contravention; or

(ii)other conduct of that kind;

and

(b)make an order under section 105 in relation to the contravention.

(2)If a person is convicted of an offence against this Act, the court by which the conviction was effected may order the offender to reimburse the Department for the cost of purchasing or testing any goods to which the conviction relates.

(3)Where a person is, by any conviction or order of a court, adjudged to pay a fine, or costs or other sum of money in respect of an offence against this Act, the court by which the conviction or order was effected or made may —

(a)exercise any power that the court has apart from this section; or

(b)on the application of the Minister or the Commissioner, order that the amount unpaid be recoverable as if it were a judgment debt payable by the defaulter to the Crown under a judgment entered up in the court.

95.Vicarious liability of directors, employers etc.

(1)Where a corporation within the meaning of the Corporations Act 2001 (Commonwealth) or any other body of persons, corporate or unincorporate, is convicted of an offence against this Act, each person who, at the time of the commission of that offence, was a director of the corporation or was the manager, secretary or other similar officer of that body, or who purported to act in any of those capacities, is also guilty of an offence unless the person proves —

(a)that the offence was committed without the person’s knowledge, or that the person did not authorise or permit the commission of the offence; and

(b)that the person was not in a position to influence the conduct of that corporation or body or, being in such a position, could not by the exercise of reasonable diligence have prevented the commission of the offence.

(2)A person who is guilty of an offence by virtue of subsection (1) is liable to a penalty not exceeding the penalty prescribed for the offence of which the corporation or body was convicted.

(3)Where the affairs of a body of persons are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s function of management as if the person were the manager of that body.

(4)Where the employee or agent of a person (person A) is convicted of an offence against this Act, each person (person B) who, at the time of the commission of the offence, was person A’s employer or principal —

(a)is also guilty of an offence, unless person B proves that person B could not by the exercise of reasonable diligence have prevented the commission of the offence of which person A was convicted; and

(b)is liable to a penalty not exceeding the penalty prescribed for the offence of which person A was convicted.

(5)Where a person has committed an offence against the Australian Consumer Law (WA) Part 2‑1 or Part 2‑2 or Part 3‑1 (other than Divisions 2 and 3), or would have committed an offence but for the fact that the person could establish a defence under section 96 or 97, and the contravention, or what would have constituted the contravention, was due to the act or default of another person —

(a)that other person —

(i)is also guilty of an offence and liable to the same penalty as is provided for the offence against the Australian Consumer Law (WA) Part 2‑1 or Part 2‑2 or Part 3‑1 (other than Divisions 2 and 3); and

(ii)may be charged and convicted of the offence, whether or not proceedings are taken against the first‑mentioned person for the offence against the Australian Consumer Law (WA) Part 2‑1 or Part 2‑2 or Part 3‑1 (other than Divisions 2 and 3);

and

(b)the first‑mentioned person is a competent and compellable witness in any proceedings taken against that other person in respect of the offence.

96.Defence: reasonable mistake of fact

(1)In a prosecution under this Part for an offence against this Act, it is a defence if the accused establishes that the contravention in respect of which the proceeding was instituted was due to reasonable mistake of fact, including a mistake of fact caused by reasonable reliance on information supplied by another person.

(2)However, subsection (1) does not apply in relation to information relied upon by the accused that was supplied to the accused by another person who was, at the time when the contravention occurred —

(a)an employee or agent of the accused; or

(b)if the accused is a body corporate, a director, employee or agent of the accused.

(3)If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person, the accused is not entitled to rely on that defence unless —

(a)the court gives leave; or

(b)the accused has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a notice in writing giving whatever information the accused then had that would identify or assist in identifying the other person.

97.Defences: accident, act or default of another etc.

(1)In a prosecution under this Part for an offence against this Act, it is a defence if the accused establishes that —

(a)the contravention in respect of which the proceeding was instituted was due to —

(i)the act or default of another person; or

(ii)an accident; or

(iii)some other cause beyond the accused’s control;

and

(b)the accused took reasonable precautions and could not by the exercise of due diligence have prevented the commission of the offence.

(2)However, subsection (1) does not apply in relation to the act or default of another person who was, at the time when the contravention occurred —

(a)an employee or agent of the accused; or

(b)if the accused is a body corporate, a director, employee or agent of the accused.

(3)If a defence provided by subsection (1) involves an allegation that a contravention was due to the act or default of another person, the accused is not entitled to rely on that defence unless —

(a)the court gives leave; or

(b)the accused has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a notice in writing giving whatever information the accused then had that would identify or assist in identifying the other person.

98.Defence: publication of advertisements in ordinary course of business

In a proceeding under this Part in relation to a contravention of this Act committed by the publication of an advertisement, it is a defence if it is established —

(a)that the accused is a person whose business it is to publish or arrange for the publication of advertisements; and

(b)that the accused received the advertisement for publication in the ordinary course of business; and

(c)that the accused did not know and had no reason to suspect that its publication would amount to a contravention of this Act.

Division 3 — Civil proceedings

99.Injunctions to prevent or stop contraventions of Act

(1)The Supreme Court or the District Court, on the application of the Minister, the Commissioner or any other person, may grant an injunction in whatever terms the Court determines to be appropriate where the Court is satisfied that a person —

(a)has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of a provision of this Act; or

(b)is involved in a contravention of a provision of this Act.

(2)The power of the Court to grant an injunction restraining a person (person A) from engaging in conduct may be exercised —

(a)whether or not it appears to the Court that person A intends to engage again, or to continue to engage, in conduct of that kind; and

(b)whether or not person A has previously engaged in conduct of that kind; and

(c)whether or not there is an imminent danger of substantial damage to any person if person A engages in conduct of that kind.

100.Injunctions to prevent etc. other contraventions

(1)The Supreme Court or the District Court, on the application of the Commissioner, may grant an injunction in whatever terms the Court determines to be appropriate where the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes, or would constitute, or is involved in, a contravention of —

(a)an interim ban or a permanent ban under the Australian Consumer Law (WA) Part 3‑3 Division 2; or

(b)a provision of any other legislation administered by the Minister or of an order made under any such legislation, being a provision relevant to the alleged contravention; or

(c)a provision of a prescribed code of practice in force under Part 4 in respect of which the Commissioner has applied to the State Administrative Tribunal under section 47; or

(d)a provision of an order of the State Administrative Tribunal under section 47.

(2)If the Court is satisfied, on the application of the Commissioner, that a person has engaged in conduct constituting, or is involved in, a contravention of a provision of this Act, the Court may grant an injunction requiring that person to take specified action to remedy any adverse consequence of that conduct, including —

(a)an order requiring that person or a person involved in the contravention to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to; or

(b)an order requiring the person or a person involved in the contravention to publish, at the person’s own expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order.

101.Injunctions, general provisions about

(1)An injunction granted under this Division may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) —

(a)for a specified period; or

(b)except on specified terms and conditions.

(2)The power of the Court to grant an injunction under this Division requiring a person to do an act or thing may be exercised —

(a)whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

(b)whether or not the person has previously refused or failed to do that act or thing; and

(c)whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.

102.Interim injunctions

(1)An interim injunction may be granted under this Division pending final determination of the application.

(2)Where the Minister or the Commissioner makes an application to the Court for the grant of an injunction under this Division, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages or costs.

(3)If, in a case to which subsection (2) does not apply, the Court would, but for this subsection, require a person to give an undertaking as to damages or costs, then —

(a)if the Minister gives the undertaking, the Court must accept the undertaking by the Minister; and

(b)the Court must not require a further undertaking from any other person.

103.Final injunction may be granted if parties consent

A final injunction may, by consent of the parties, be granted under this Division without proof that proper grounds for the injunction exist.

104.Injunction may be rescinded or varied

An injunction under this Division may be rescinded or varied at any time.

105.Supreme and District Courts’ other powers in Part 7 proceedings

(1)Without limiting the generality of section 99 or 100, if, in a proceeding instituted under this Part, or for an offence against this Act, the Supreme Court or the District Court is satisfied that a person has suffered, or is likely to suffer, loss or damage by reason of conduct of another person that contravened a provision of this Act, the Court may make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention for the purpose of compensating the first‑mentioned person wholly or in part for the loss or damage or of preventing or reducing the extent of the loss or damage.

(2)The Court may make an order under this section whether or not an injunction under this Division or any other relief is granted or any other order is made in the proceedings.

(3)Whether or not other proceedings have been instituted under this Act in relation to a contravention, the Court may make orders under this section —

(a)on the application of a person who has suffered, or is likely to suffer, loss or damage by reason of the contravention; or

(b)on the application of the Commissioner on behalf of one or more such persons made with the written consent of each such person.

(4)The orders that may be made under this section include the following —

(a)an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void from its beginning or at all times on and after such date, before the date on which the order is made, as is specified in the order;

(b)an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date, before the date on which the order is made, as is so specified;

(c)an order refusing to enforce any or all of the provisions of such a contract or arrangement;

(d)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage;

(e)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage;

(f)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person’s own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage;

(g)an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that —

(i)varies, or has the effect of varying, the first‑mentioned instrument; or

(ii)terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first‑mentioned instrument.

(5)The powers conferred on the Supreme Court and the District Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement.

106.Supreme and District Courts’ powers to prohibit payments, transfers of property etc.

(1)In this section, a person (the first person) is an associate of another person if —

(a)the first person holds money or other property on behalf of the other person; or

(b)if the other person is a body corporate, the first person is a wholly‑owned subsidiary (within the meaning of the Corporations Act 2001 (Commonwealth)) of the other person.

(2)A Court may, on the application of the Minister or the Commissioner, make an order or orders of the kind specified in subsection (4) if —

(a)proceedings of a kind referred to in subsection (3) have been taken against a person, or proceedings of a kind referred to in subsection (3)(d) may be taken against a person; and

(b)the Court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable or may become liable under this Act —

(i)to pay moneys by way of a fine, damages, compensation, refund or otherwise; or

(ii)to transfer, sell or return other property;

and

(c)the Court is satisfied that the making of the order or orders will not unduly prejudice the rights and interests of any other person.

(3)For the purposes of subsection (2)(a), the kinds of proceedings taken against the person are as follows —

(a)proceedings in the Supreme Court or the District Court against the person for an offence against this Act;

(b)an application under section 99 or 100 for an injunction against the person in relation to a contravention of a provision of this Act;

(c)an action under the Australian Consumer Law (WA) section 236(1) against the person in relation to a contravention of a provision of this Act;

(d)an application for an order under section 105 against a person in relation to a contravention of a provision of this Act.

(4)The Court may make the following orders under subsection (2) in relation to money or other property held by, or on behalf of, a person (the respondent) —

(a)an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt —

(i)to the respondent; or

(ii)to another person at the direction or request of the respondent;

(b)an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent —

(i)from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or

(ii)from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property;

(c)an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State;

(d)an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State;

(e)if the respondent is a natural person, an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.

(5)If the Court makes an order under this section, the order operates —

(a)for a period specified in the order (which must not be longer than 30 days if the application for the order was made in the absence of the person against whom the order is sought); or

(b)if proceedings in relation to which the order is made are concluded before the end of that period, until the conclusion of those proceedings.

(6)This section —

(a)has effect subject to the Bankruptcy Act 1966 (Commonwealth); and

(b)does not affect any other powers of the Supreme Court or the District Court.

107.Contravening s. 106 order, offence

A person who contravenes or fails to comply with an order by the Supreme Court or the District Court under section 106 that is applicable to the person is guilty of a crime.

Penalty:

(a)in the case of a body corporate, a fine of $1 100 000;

(b)in the case of a person other than a body corporate, a fine of $220 000.

Summary conviction penalty: a fine of $36 000.

[Section 107 amended: No. 11 of 2013 s. 14.]

108.Findings of fact or admissions in certain proceedings to be evidence in others

(1)In an action against a person under the Australian Consumer Law (WA) section 236(1) —

(a)a finding of a fact by a court, or an admission of a fact by the person, in proceedings to which subsection (3) applies is prima facie evidence of that fact; and

(b)the finding or admission may be proved by production of a document under the seal of the court from which the finding or admission appears.

(2)In proceedings for an order against a person under section 105(3) or the Australian Consumer Law (WA) section 237(1), 238(1) or 239(1) —

(a)a finding of a fact by a court, or an admission of a fact by the person, in proceedings to which subsection (3) applies is prima facie evidence of that fact; and

(b)the finding or admission may be proved by production of a document under the seal of the court from which the finding or admission appears.

(3)This subsection applies to proceedings under section 99 or 100, or the Australian Consumer Law (WA) section 228, 232, 246, 247 or 248, or for an offence against this Act, in which the person has been found to have contravened, or to have been involved in a contravention of, a provision of the Australian Consumer Law (WA) Chapter 2, 3 or 4.

[Section 108 amended: No. 26 of 2019 s. 8.]

Division 4 — Further provisions relating to proceedings

109.State of mind of person, meaning of in s. 110 and 111

A reference in sections 110 and 111 to the state of mind of a person includes a reference to —

(a)the knowledge, intention, opinion, belief or purpose of the person; and

(b)the person’s reasons for that intention, opinion, belief or purpose.

110.State of mind and conduct of body corporate, establishing

(1)Where, in a proceeding under this Part or the Australian Consumer Law (WA) in respect of conduct that is engaged in by a body corporate and to which this Part or the Australian Consumer Law (WA) applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show —

(a)that a director, employee or agent of the body corporate engaged in that conduct within the scope of the person’s actual or apparent authority; and

(b)that the director, employee or agent had that state of mind.

(2)Conduct of the kind set out in paragraph (a) or (b) that is engaged in on behalf of a body corporate is to be treated, for the purposes of this Act, as having been engaged in by the body corporate as well —

(a)conduct by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or

(b)conduct by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent.

111.State of mind and conduct of principal (not a body corporate), establishing

(1)Where, in a proceeding under this Part or the Australian Consumer Law (WA) in respect of conduct that is engaged in by a person (the principal) other than a body corporate and to which this Part or the Australian Consumer Law (WA) applies, it is necessary to establish the state of mind of the principal, it is sufficient to show —

(a)that an employee or agent of the principal engaged in that conduct within the scope of the person’s actual or apparent authority; and

(b)that the employee or agent had that state of mind.

(2)Conduct of the kind set out in paragraph (a) or (b) that is engaged in on behalf of a person (the principal) other than a body corporate is to be treated, for the purposes of this Act, as having been engaged in by the principal as well —

(a)conduct by an employee or agent of the principal within the scope of the person’s actual or apparent authority; or

(b)conduct by any other person, at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the principal, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent.

Part 8  Miscellaneous

112.Personal information obtained officially, when may be divulged etc.

(1)In this section —

personal information means information concerning the affairs of a person;

regulated person has the meaning given in section 88A.

(2)A person must not, either directly or indirectly, make a record of, or divulge or communicate to any other person, any personal information obtained by him or her by reason of his or her office, position, employment or engagement under or for the purposes of this Act.

Penalty: a fine of $20 000.

(3)Subsection (2) does not prohibit the recording, divulging or communicating of any personal information —

(a)with the consent of the person to whom the information relates, or each of them if there is more than one; or

(b)in a manner that could not reasonably be expected to lead to the identification of any person to whom the information relates; or

(c)for the purposes of performing a function under or in connection with —

(i)this Act; or

(ii)an Act listed in Schedule 2;

or

(da)for the purposes of giving information to a body established under a written law if —

(i)the information concerns the affairs of a regulated person or former regulated person; and

(ii)the information is given in relation to the performance by that body of a function under or in connection with that written law;

or

(d)for the purposes of legal proceedings arising out of the administration of this Act or another written law; or

(e)for the purpose of the investigation of any suspected offence or the conduct of proceedings against any person for any offence; or

(f)by the Commissioner for the purpose of making the public aware of —

(i)investigations or inquiries being conducted into the conduct of a regulated person, former regulated person or purported regulated person, and the results of those inquiries; and

(ii)disciplinary action being contemplated or undertaken in relation to a regulated person, former regulated person or purported regulated person, and the outcome of that action.

(4)Nothing in this section affects the operation of the Parliamentary Privileges Act 1891.

[Section 112 amended: No. 58 of 2010 s. 11; No. 23 of 2014 s. 13.]

113.Information obtained officially may be used for certain other purposes and legislation

(1)This section applies to information that is obtained by a person by reason of his or her office, position, employment or engagement under or for the purposes of this Act.

(2)Without limiting section 112(3), the fact that information to which this section applies is obtained in connection with the performance of a particular function under this Act does not prevent that information from being used or disclosed in connection with the performance of —

(a)any other function under this Act; or

(b)any function under any other written law that is administered through the Department.

114.Protection from liability for wrongdoing

(1)In this section —

(a)a reference to the doing of anything includes a reference to an omission to do anything; and

(b)liability includes liability for defamation.

(2)A person is not liable for anything that the person has done, in good faith, in the course of the operations of the Department or the administration of this Act.

(3)The Crown is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (2).

(4)The protection given by this section applies even though the thing done as described in subsection (2) may have been capable of being done whether or not this Act had been enacted.

(5)This section is subject to the Chattel Securities Act 1987 sections 24 and 25.

115.Protection from liability for publishing official statements

(1)In this section —

liability includes liability for defamation.

(2)This section applies to statements made or issued by a person in the course of the operations of the Department or the administration of this Act.

(3)A person is not liable for publishing, in good faith —

(a)a statement to which this section applies; or

(b)a fair report or summary of a statement to which this section applies.

(4)Nothing in this section limits section 114.

116.Regulations

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2)A regulation may create an offence punishable by a penalty of a fine not exceeding $2 000.

(3)Without limiting subsection (1), regulations made under that subsection may —

(a)prescribe calling hours with respect to unsolicited consumer agreements under the Australian Consumer Law (WA) section 73;

(b)provide that the Australian Consumer Law (WA) Part 3‑2 Division 2 (unsolicited consumer agreements) does not apply, or provisions of that Division that are specified in the regulations do not apply, to or in relation to agreements of a kind specified in the regulations.

(4)Regulations made under subsection (3)(a) may alter the operation of the Australian Consumer Law (WA) sections 73(1) and 170(1).

(5)Regulations made under subsection (3)(b) may alter the operation of the Australian Consumer Law (WA) Part 3‑2 Division 2.

Part 9  Transitional provisions

117.Regulations for transitional matters

(1)If there is not sufficient provision in this Act for dealing with a transitional matter, regulations under this Act may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.

(2)In subsection (1) —

transitional matter —

(a)means a matter that needs to be dealt with for the purpose of effecting the transition from the provisions of the Consumer Affairs Act 1971, Door to Door Trading Act 1987 and Fair Trading Act 1987 to the provisions of this Act; and

(b)includes a saving or application matter.

(3)Regulations made under subsection (1) may provide that specified provisions of a written law —

(a)do not apply to or in relation to any matter; or

(b)apply with specified modifications to or in relation to any matter.

(4)If regulations under subsection (1) provide that a specified state of affairs is taken to have existed, or not to have existed, on and from a day that is earlier than the day on which the regulations are published in the Gazette but not earlier than the day this section comes into operation, the regulations have effect according to their terms.

(5)In subsections (3) and (4) —

specified means specified or described in the regulations.

(6)If regulations contain a provision referred to in subsection (4), the provision does not operate so as —

(a)to affect, in a manner prejudicial to any person (other than the State), the rights of that person existing before the day of publication of those regulations; or

(b)to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.

(7)Regulations made under subsection (1) in relation to a matter referred to in subsection (3) must be made within such period as is reasonably and practicably necessary to deal with a transitional matter that arises as a result of the enactment of this Act.

118.Fair Trading (Product Information Standard) Regulation 2005 Part 4 (builders plates for recreational vessels), continuation of

(1)The Fair Trading (Product Information Standard) Regulations 2005 (other than Parts 2 and 3) continue in force after the commencement of this section as if those regulations were an information standard under the Australian Consumer Law (WA) Part 3‑4, and may be enforced accordingly.

(2)The regulations continued in force by subsection (1) may be repealed as if they were regulations made under section 116.

119.Orders made before 1 Jan 2011 recalling defective goods etc., effect of

If an order under the Fair Trading Act 1987 section 54(2) has effect immediately before the commencement of Part 10, that order continues to have effect on and after that commencement as if it were a recall notice issued under the Australian Consumer Law (WA) section 122(1).

120.Delegations made before 1 Jan 2011, effect of

(1)If a delegation under the Consumer Affairs Act 1971 section 23 has effect immediately before the commencement of Part 10, that delegation continues to have effect on and after that commencement as if it had taken place under section 60.

(2)This section does not limit the Interpretation Act 1984 Part V.

121.Interpretation Act 1984, application of to expiring Acts

To avoid doubt, the provisions of the Interpretation Act 1984 (for example, sections 16(1), 36 and 38) about the repeal of written laws and the substitution of other written laws for those so repealed apply to the Consumer Affairs Act 1971, Door to Door Trading Act 1987 and Fair Trading Act 1987 as if, on the commencement of Part 10, those Acts were repealed and re‑enacted by this Act.

[Part 10 omitted under the Reprints Act 1984 s. 7(4)(e).]

 

 

Schedule 1  Acts that override the Australian Consumer Law (WA) Part 3‑3

[s. 15]

[Heading inserted: No. 11 of 2013 s. 15.]

The following enactments are specified for the purpose of section 15(1)(a) —

Biosecurity and Agriculture Management Act 2007

Dangerous Goods Safety Act 2004

Firearms Act 1973

Food Act 2008

Health (Miscellaneous Provisions) Act 1911

Medicines and Poisons Act 2014

Mines Safety and Inspection Act 1994

Motor Vehicle Dealers Act 1973

Occupational Safety and Health Act 1984

Radiation Safety Act 1975

Road Traffic Act 1974

Road Traffic (Administration) Act 2008.

Road Traffic (Authorisation to Drive) Act 2008.

Road Traffic (Vehicles) Act 2012.

Trade Measurement Act 2006

Veterinary Chemical Control and Animal Feeding Stuffs Act 1976.

[Schedule 1 amended: No. 24 of 2007 s. 23, 29, 61, 64, 75 and 86 (as amended: No. 58 of 2010 s. 192(1)-(6) and (8)); No. 8 of 2012 s. 103; No. 13 of 2014 s. 185; No. 19 of 2016 s. 138; No. 50 of 2016 s. 22.]

Schedule 2 — Registration Acts

[s. 88A]

[Heading inserted: No. 58 of 2010 s. 12.]

The following Acts are specified for the purposes of section 88A —

Charitable Collections Act 1946

Debt Collectors Licensing Act 1964

Employment Agents Act 1976

Land Valuers Licensing Act 1978

Motor Vehicle Dealers Act 1973

Motor Vehicle Repairers Act 2003

Real Estate and Business Agents Act 1978

Settlement Agents Act 1981

[Schedule 2 inserted: No. 58 of 2010 s. 12; amended: No. 11 of 2013 s. 16; No. 21 of 2014 s. 8; No. 25 of 2019 s. 29.]

 

Notes

This is a compilation of the Fair Trading Act 2010 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title

Number and year

Assent

Commencement

Fair Trading Act 2010

57 of 2010

8 Dec 2010

s. 1 and 2: 8 Dec 2010 (see s. 2(a));
Act other than s. 1 and 2: 1 Jan 2011 (see s. 2(b) and
Gazette 24 Dec 2010 p. 6805)

Biosecurity and Agriculture Management (Repeal and Consequential Provisions) Act 2007 s. 23, 29, 61, 64 75 and 86

24 of 2007 (as amended by No. 58 of 2010 s. 192(2)-(6) and (8))

12 Oct 2007

1 May 2013 (see s. 2(2) and Gazette 5 Feb 2013 p. 823)

Acts Amendment (Fair Trading) Act 2010 Pt. 2

58 of 2010

8 Dec 2010

1 Jul 2011 (see s. 2(c) and Gazette 7 Jun 2011 p. 2057)

Reprint 1: The Fair Trading Act 2010 as at 3 Feb 2012 (includes amendments listed above except those in the Biosecurity and Agriculture Management (Repeal and Consequential Provisions) Act 2007)

Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 21

8 of 2012

21 May 2012

27 Apr 2015 (see s. 2(d) and Gazette 17 Apr 2015 p. 1371)

Fair Trading Amendment Act 2013

11 of 2013

4 Oct 2013

s. 1 and 2: 4 Oct 2013 (see s. 2(a));
Act other than s. 1 and 2: 30 Nov 2013 (see s. 2(b) and
Gazette 29 Nov 2013 p. 5455)

Medicines and Poisons Act 2014 s. 185

13 of 2014

2 Jul 2014

30 Jan 2017 (see s. 2(b) and Gazette 17 Jan 2017 p. 403)

Travel Agents Amendment and Expiry Act 2014 s. 8

21 of 2014

29 Aug 2014

25 Jan 2017 (see s. 2(c) and Gazette 24 Jan 2017 p. 741)

Consumer Protection Legislation Amendment Act 2014 Pt. 4

23 of 2014

9 Oct 2014

19 Nov 2014 (see s. 2(b) and Gazette 18 Nov 2014 p. 4315)

Public Health (Consequential Provisions) Act 2016 Pt. 3 Div. 12

19 of 2016

25 Jul 2016

24 Jan 2017 (see s. 2(1)(c) and Gazette 10 Jan 2017 p. 165)

Statutes (Repeals) Act 2016 Pt. 4 Div. 2

50 of 2016

28 Nov 2016

29 Nov 2016 (see s. 2(b))

Reprint 2: The Fair Trading Act 2010 as at 22 Jun 2018 (includes amendments listed above)

Consumer Protection Legislation Amendment Act 2019 Pt. 5

25 of 2019

24 Oct 2019

1 Jan 2020 (see s. 2(b) and Gazette 24 Dec 2019 p. 4415)

Fair Trading Amendment Act 2019

26 of 2019

24 Oct 2019

25 Oct 2019 (see s. 2(b))

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title

Number and year

Assent

Commencement

Biosecurity and Agriculture Management (Repeal and Consequential Provisions) Act 2007 s. 83

24 of 2007 (as amended by No. 58 of 2010 s. 192(7))

12 Oct 2007

To be proclaimed (see s. 2(2))

Public Health (Consequential Provisions) Act 2016 Pt. 5 Div. 7

19 of 2016

25 Jul 2016

To be proclaimed (see s. 2(1)(c))

Other notes

1The provisions in this Act amending these Acts have been omitted under the Reprints Act 1984 s. 7(4)(e).

2Section 36 as altered by the Fair Trading (Permitted Calling Hours) Regulations 2014 r. 4 and 5 no longer has effect in relation to the Australian Consumer Law (WA) Text.

 

 

 

Note — Australian Consumer Law (WA) text

This note is not part of the Act. Section 19(1) of the Act provides that the Australian Consumer Law text that, under section 19(2) of the Act, applies as the Australian Consumer Law (WA) consists of:

(a)Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth) (the Cwth Act), as in force on 26 October 2018 (as modified by section 36 of the Act); and

(b)the regulations made under section 139G the Cwth Act, as those regulations are in force from time to time.

Regulations may also be made under section 116(3) of the Act that alter the operation of certain provisions of the Australian Consumer Law (WA).

This note shows the version of the text of Schedule 2 to the Cwth Act, as in force on 26 October 2018 (as modified by section 36 of the Act and regulations made under section 116(3) of the Act) that, together with the regulations made under section 139G of the Cwth Act, applies as the Australian Consumer Law (WA).

The text of the regulations made under section 139G of the Cwth Act is not reproduced. The regulations can be accessed at www.comlaw.gov.au.]

Chapter 1 — Introduction

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).

annual turnover, of a body corporate during a 12‑month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12‑month period, other than:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or

(b)supplies that are input taxed; or

(c)supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or

(d)supplies that are not made in connection with an enterprise that the body corporate carries on; or

(e)supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.

application law has the same meaning as in section 140 of the Competition and Consumer Act.

article includes a token, card or document.

ASIC means the Australian Securities and Investments Commission.

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

associate regulator:

(a)for the purposes of the application of this Schedule as a law of the Commonwealth — means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or

(b)for the purposes of the application of this Schedule as a law of a State or a Territory — means:

(i)the Commission; or

(ii)a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.

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

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

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

authority of the Commonwealth means:

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

(b)an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

banker has the same meaning as in section 4(1) of the Competition and Consumer Act.

ban period for an interim ban: see section 111(1).

business includes a business not carried on for profit.

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

(a)a Saturday or Sunday; or

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

business or professional relationship includes a relationship between employer and employee, or a similar relationship.

call on, in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.

Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.

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

Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.

Competition and Consumer Act means the Competition and Consumer Act 2010.

consumer: see section 3.

consumer contract: see section 23(3).

consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:

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

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

continuing credit contract: see section 14(1).

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

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

covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.

credit card: see section 39(5).

credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.

dealer: see section 71.

debit card: see section 39(6).

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

defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.

disclosed purpose: see section 55(2).

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

document means any record of information, and includes:

(a)anything on which there is writing; and

(b)anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d)a map, plan, drawing or photograph.

egg has the meaning given by subsection 137A(3).

enforcement proceeding means:

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

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

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

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

(a)that relates to:

(i)the quality, state, condition, performance or characteristics of the goods; or

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

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

(iv)the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and

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

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

financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.

financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001.

free item includes a free service.

free range egg has the meaning given by subsection 137A(4).

gift card: see section 99A.

goods includes:

(a)ships, aircraft and other vehicles; and

(b)animals, including fish; and

(c)minerals, trees and crops, whether on, under or attached to land or not; and

(d)gas and electricity; and

(e)computer software; and

(f)second‑hand goods; and

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

grown: see section 255(7).

GST has the meaning given by section 195‑1 of the A New Tax System (Goods and Services Tax) Act 1999.

industry code has the meaning given by section 51ACA of the Competition and Consumer Act.

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

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

inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.

interest, in relation to land, means:

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

(b)a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or

(c)a right, power or privilege over, or in connection with, the land.

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

involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:

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

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

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

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

joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.

label includes a band or ticket.

lay‑by agreement: see section 96(3).

linked credit contract: see section 278(2).

linked credit provider, in relation to a supplier of goods or services, means a credit provider:

(a)with whom the supplier has a contract, arrangement or understanding relating to:

(i)the supply to the supplier of goods in which the supplier deals; or

(ii)the business carried on by the supplier of supplying goods or services; or

(iii)the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or

(b)to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or

(c)whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or

(d)with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.

loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways:

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

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

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

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

(e)by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.

major failure: see sections 260 and 268.

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

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

(b)that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such non‑compliance;

but does not include a standard which may be complied with by meeting a higher standard.

manufacturer: see section 7.

market has the same meaning as in section 4E of the Competition and Consumer Act.

materials, in relation to goods, means:

(a)if the goods are unmanufactured raw products — those products; and

(b)if the goods are manufactured goods — all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and

(c)in either case — the inner containers in which the goods are packed.

mixed supply: see section 3(11).

National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.

negotiated by telephone: see section 78(3).

negotiation: see section 72.

new participant: see section 45(2).

nonlinked credit contract: see section 287(5).

nonparty consumer means:

(a)in relation to conduct referred to in section 239(1)(a)(i) — a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; and

(b)in relation to a term of a contract referred to in section 239(1)(a)(ii) — a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.

participant, in a pyramid scheme, means a person who participates in the scheme.

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

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

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

post‑supply fee: see section 99D(2).

premises means:

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

(b)a building or other structure; or

(c)a vehicle, vessel or aircraft; or

(d)a part of any such premises.

price, of goods or services, means:

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

(b)if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:

(i)the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or

(ii)if they could not reasonably have been acquired separately from another supplier — their value at the time of the transaction.

prior negotiations or arrangements, in relation to the acquisition of goods by a consumer, means negotiations or arrangements:

(a)that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and

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

product related service means a service for or relating to:

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

(b)the maintenance, repair or cleaning of consumer goods of a particular kind; or

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

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

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

proof of transaction: see section 100(4).

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

pyramid scheme: see section 45(1).

recall notice: see section 122(1).

recovery period: see section 41(4).

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

regulations means regulations made under section 139G of the Competition and Consumer Act.

regulator:

(a)for the purposes of the application of this Schedule as a law of the Commonwealth — means the Commission; or

(b)for the purposes of the application of this Schedule as a law of a State or a Territory — has the meaning given by the application law of the State or Territory.

rejection period: see section 262(2).

related, in relation to a body corporate: see section 6.

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

rely on, in relation to a term of a consumer contract or small business contract, includes the following:

(a)attempt to enforce the term;

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

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

responsible Minister means:

(a)the Commonwealth Minister; or

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

(c)the Minister of a Territory who administers the application law of the Territory.

safety defect, in relation to goods: see section 9.

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

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

send includes deliver, and sent and sender have corresponding meanings.

serious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:

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

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

services includes:

(a)any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

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

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

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

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

(iv)a contract of insurance; or

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

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

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

share includes stock.

ship has the meaning given by section 3(1) of the Admiralty Act 1988.

single price: see section 48(7).

small business contract: see subsection 23(4).

standard form contract has a meaning affected by section 27.

substantially transformed, in relation to goods: see section 255(2).

substantiation notice means a notice under section 219.

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

supply, when used as a verb, includes:

(a)in relation to goods — supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b)in relation to services — provide, grant or confer;

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

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

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

telecommunications service: see section 65(2).

termination charge: see section 97(2).

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

tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.

tied loan contract means a loan contract entered into between a credit provider and a consumer where:

(a)the credit provider knows, or ought reasonably to know, that the consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and

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

trade or commerce means:

(a)trade or commerce within Australia; or

(b)trade or commerce between Australia and places outside Australia;

and includes any business or professional activity (whether or not carried on for profit).

transparent:

(a)in relation to a document — means:

(i)expressed in reasonably plain language; and

(ii)legible; and

(iii)presented clearly; and

(b)in relation to a term of a consumer contract or small business contract — see section 24(3).

unfair, in relation to a term of a consumer contract or small business contract: see section 24(1).

unsolicited consumer agreement: see section 69.

unsolicited goods means goods sent to a person without any request made by the person or on his or her behalf.

unsolicited services means:

(a)services supplied to a person; or

(b)services purported to have been supplied to a person which have not been supplied;

without any request made by the person or on his or her behalf.

upfront price: see section 26(2).

warranty against defects: see section 102(3).

(2)In this Schedule:

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

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

(ii)the arriving at, or the giving effect to a provision of, an understanding; or

(iii)the requiring of the giving of, or the giving of, a covenant; and

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

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

(ii)the arriving at, or the giving effect to a provision of, an understanding; or

(iii)the requiring of the giving of, or the giving of, a covenant; and

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

(i)refraining (otherwise than inadvertently) from doing that act; or

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

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

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 following purpose:

(i)for goods other than gift cards—for the purpose of re‑supply;

(ii)for gift cards—for the purpose of re‑supply in trade or commerce; or

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

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

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

Acquiring services as a consumer

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

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

(i)$40,000; or

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

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

Amounts paid or payable for purchases

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

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

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

(b)if:

(i)paragraph (a) does not apply; but

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

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

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

Amounts paid or payable for other acquisitions

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

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

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

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

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

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

Amounts paid or payable for obtaining credit

(9)If:

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

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

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

Presumption that persons are consumers

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

Mixed supplies

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

Supplies to consumers

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

4.Misleading representations with respect to future matters

(1)If:

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

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

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

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

(a)a party to the proceeding; or

(b)any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

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

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

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

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

(a)a misleading representation; or

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

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

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

5.When donations are treated as supplies or acquisitions

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

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

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

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

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

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

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.

13.Loss or damage to include injury

In this Schedule:

(a)a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

(b)a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.

14.Meaning of continuing credit contract

(1)If:

(a)a person (the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to:

(i)payment for goods or services; or

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

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

(b)the creditor:

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

(ii)is engaged in a course of dealing (the credit dealing) with the consumer in relation to the provision of the credit; and

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

(i)all amounts owing; and

(ii)all payments made;

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

the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract.

(2)If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.

15.Contraventions of this Schedule

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

(a)section 23(1); or

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

(c)a provision of Part 3‑5.

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.

Chapter 2 — General protections

Part 2‑1 — Misleading or deceptive conduct

18.Misleading or deceptive conduct

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

(2)Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

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

19.Application of this Part to information providers

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

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

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

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

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

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

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

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

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

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

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

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

(5)An information provider is a person who carries on a business of providing information.

(6)Without limiting subsection (5), each of the following is an information provider:

(a)the holder of a licence granted under the Broadcasting Services Act 1992;

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

[(c)deleted.]

(d)the Australian Broadcasting Corporation;

(e)the Special Broadcasting Service Corporation.

Part 2‑2 — Unconscionable conduct

20.Unconscionable conduct within the meaning of the unwritten law

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

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

(2)This section does not apply to conduct that is prohibited by section 21.

21.Unconscionable conduct in connection with goods or services

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

(a)the supply or possible supply of goods or services to a person; or

(b)the acquisition or possible acquisition of goods or services from a person;

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

(2)This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

(a)institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

(b)refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

(3)For the purpose of determining whether a person has contravened subsection (1):

(a)the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b)the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4)It is the intention of the Parliament that:

(a)this section is not limited by the unwritten law relating to unconscionable conduct; and

(b)this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c)in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

(i)the terms of the contract; and

(ii)the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

22.Matters the court may have regard to for the purposes of section 21

(1)Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:

(a)the relative strengths of the bargaining positions of the supplier and the customer; and

(b)whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c)whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

(e)the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f)the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and

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

(h)the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

(i)the extent to which the supplier unreasonably failed to disclose to the customer:

(i)any intended conduct of the supplier that might affect the interests of the customer; and

(ii)any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

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

(i)the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

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

(iii)the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv)any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l)the extent to which the supplier and the customer acted in good faith.

(2)Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier), the court may have regard to:

(a)the relative strengths of the bargaining positions of the acquirer and the supplier; and

(b)whether, as a result of conduct engaged in by the acquirer, the supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and

(c)whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and

(d)whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and

(e)the amount for which, and the circumstances in which, the supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and

(f)the extent to which the acquirer’s conduct towards the supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like suppliers; and

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

(h)the requirements of any other industry code, if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

(i)the extent to which the acquirer unreasonably failed to disclose to the supplier:

(i)any intended conduct of the acquirer that might affect the interests of the supplier; and

(ii)any risks to the supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the supplier); and

(j)if there is a contract between the acquirer and the supplier for the acquisition of the goods or services:

(i)the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

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

(iii)the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

(iv)any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k)without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the goods or services; and

(l)the extent to which the acquirer and the supplier acted in good faith.

22A.Presumptions relating to whether representations are misleading

Section 4 applies for the purposes of sections 21 and 22 in the same way as it applies for the purposes of Division 1 of Part 3‑1.

Part 2‑3 — Unfair contract terms

23.Unfair terms of consumer contracts and small business contracts

(1)A term of a consumer contract or small business contract is void if:

(a)the term is unfair; and

(b)the contract is a standard form contract.

(2)The contract continues to bind the parties if it is capable of operating without the unfair term.

(3)A consumer contract is a contract for:

(a)a supply of goods or services; or

(b)a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

(4)A contract is a small business contract if:

(a)the contract is for a supply of goods or services, or a sale or grant of an interest in land; and

(b)at the time the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and

(c)either of the following applies:

(i)the upfront price payable under the contract does not exceed $300,000;

(ii)the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000.

(5)In counting the persons employed by a business for the purposes of paragraph (4)(b), a casual employee is not to be counted unless he or she is employed by the business on a regular and systematic basis.

24.Meaning of unfair

(1)A term of a consumer contract or small business contract is unfair if:

(a)it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b)it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c)it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

(2)In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

(a)the extent to which the term is transparent;

(b)the contract as a whole.

(3)A term is transparent if the term is:

(a)expressed in reasonably plain language; and

(b)legible; and

(c)presented clearly; and

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

(4)For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

25.Examples of unfair terms

Without limiting section 24, the following are examples of the kinds of terms of a consumer contract or small business contract that may be unfair:

(a)a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

(b)a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

(c)a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

(d)a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

(e)a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

(f)a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

(g)a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;

(h)a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

(i)a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;

(j)a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;

(k)a term that limits, or has the effect of limiting, one party’s right to sue another party;

(l)a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

(m)a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

(n)a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

26.Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected

(1)Section 23 does not apply to a term of a consumer contract or small business contract to the extent, but only to the extent, that the term:

(a)defines the main subject matter of the contract; or

(b)sets the upfront price payable under the contract; or

(c)is a term required, or expressly permitted, by a law of the Commonwealth, a State or a Territory.

(2)The upfront price payable under a contract is the consideration that:

(a)is provided, or is to be provided, for the supply, sale or grant under the contract; and

(b)is disclosed at or before the time the contract is entered into;

but does not include any other consideration that is contingent on the occurrence or non‑occurrence of a particular event.

27.Standard form contracts

(1)If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise.

(2)In determining whether a contract is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following:

(a)whether one of the parties has all or most of the bargaining power relating to the transaction;

(b)whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;

(c)whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;

(d)whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in section 26(1);

(e)whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the specific characteristics of another party or the particular transaction;

(f)any other matter prescribed by the regulations.

28.Contracts to which this Part does not apply

(1)This Part does not apply to:

(a)a contract of marine salvage or towage; or

(b)a charterparty of a ship; or

(c)a contract for the carriage of goods by ship.

(2)Without limiting subsection (1)(c), the reference in that subsection to a contract for the carriage of goods by ship includes a reference to any contract covered by a sea carriage document within the meaning of the amended Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991.

(3)This Part does not apply to a contract that is the constitution (within the meaning of section 9 of the Corporations Act 2001) of a company, managed investment scheme or other kind of body.

(4)This Part does not apply to a small business contract to which a prescribed law of the Commonwealth, a State or a Territory applies.

Chapter 3 — Specific protections

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 unsolicited goods or unsolicited services; and

(b)does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person has reasonable cause to believe that there is a right to the payment or charge.

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

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

41.Liability etc. of recipient for unsolicited goods

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

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

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

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

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

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

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

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

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

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

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

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

(b)if the person who receives the unsolicited goods gives notice with respect to the goods to the supplier or sender in accordance with subsection (5) — the period of one month starting on the day after the day on which the notice is given.

(5)A notice under subsection (4)(b):

(a)must be in writing; and

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

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

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

42.Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies, or purports to supply but does not supply, unsolicited services to another person, the other person:

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

(b)is not liable for loss or damage as a result of the supply or purported supply of the services.

43.Assertion of right to payment for unauthorised entries or advertisements

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

(a)the other person; or

(b)the other person’s profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

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

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

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

(i)the other person; or

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

(b)does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

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

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

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

(b)a body corporate related to such a publisher; or

(c)the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or

(d)a person specified in the regulations.

(4)A person:

(a)is not liable to make any payment to another person; and

(b)is entitled to recover by action in a court against another person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication, an entry or advertisement, unless the person authorised the placing of the entry or advertisement.

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

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

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

(c)the document specifies:

(i)the name and address of the person publishing the entry or advertisement; and

(ii)particulars of the entry or advertisement; and

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

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

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.

(4A)Subsection (1) does not apply if:

(a)the representation is in a class of representations prescribed by the regulations; and

(b)the conditions (if any) prescribed by the regulations in relation to representations in that class have been complied with.

Note:If the representation is in a class prescribed for paragraph (a) of this subsection and subsection (1) is complied with in relation to the representation, there is no need to also comply with any conditions prescribed for paragraph (b) of this subsection.

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

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

(a)the contract provides for the supply of the services for the term of the contract; and

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

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

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

(a)a charge of any description payable to the person making the representation by another person unless:

(i)the charge is payable at the option of the other person; and

(ii)at or before the time of the representation, the other person has either deselected the charge or not expressly requested that the charge be applied;

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

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

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

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

Example 1:An airline advertises a flight for sale. Persons have the option of paying for a carbon offset. If the carbon offset is preselected on the airline’s online booking system, the single price for the flight must include the carbon offset charge. This is because the person has not, at or before the time of the representation, deselected the charge on the online booking site. If the person deselects the optional carbon offset charge later in the online booking process, the single price does not need to include the carbon offset charge after the charge is deselected because of the exception provided by paragraphs (a)(i) and (ii).

Example 2:The GST may be an example of an amount covered by paragraph (b).

Example 3:The passenger movement charge imposed under the Passenger Movement Charge Act 1978 may be an example of an amount covered by paragraph (c). Under an arrangement under section 10 of the Passenger Movement Charge Collection Act 1978, airlines may pay an amount equal to the charge that would otherwise be payable by passengers departing Australia.

Division 5 — Other unfair practices

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

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

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

(b)a contract of insurance.

(2)To avoid doubt, subsection (1)(a) does not apply if the consignee of the goods is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods.

Note:This subsection was inserted as a response to the decision of the High Court of Australia in Wallis v Downard‑Pickford (North Queensland) Pty Ltd [1994] HCA 17.

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

64.Guarantees not to be excluded etc. by contract

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

(a)the application of all or any of the provisions of this Division; or

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

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

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

64A.Limitation of liability for failures to comply with guarantees

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

(a)the replacement of the goods or the supply of equivalent goods;

(b)the repair of the goods;

(c)the payment of the cost of replacing the goods or of acquiring equivalent goods;

(d)the payment of the cost of having the goods repaired.

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

(a)the supplying of the services again; or

(b)the payment of the cost of having the services supplied again.

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

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

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

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

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

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

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.

(1AA)To avoid doubt, a place mentioned in subsection (1)(b)(i) may be a public place, and need not be a place the dealer cannot enter without the consumer’s consent or invitation.

Note:This subsection was inserted as a response to the decision of the Federal Court of Australia in Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403.

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

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

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

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

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

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

70.Presumption that agreements are unsolicited consumer agreements