Part V - Consumer Protection
51AF Part does not apply to financial services
(1) This Part does not apply to the supply, or possible supply, of services that are financial services.
(2) Without limiting subsection (1):
(a) sections 52 and 55A do not apply to conduct engaged in in relation to financial services; and
(b) if a financial product consists of or includes an interest in land, section 53A does not apply to that interest; and
(c) section 63A does not apply to:
(i) a credit card that is part of, or that provides access to, a credit facility that is a financial product; or
(ii) a debit card that allows access to an account that is a financial product.
(3) In subsection (2):
credit card has the same meaning as in section 63A.
debit card has the same meaning as in section 63A.
(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.
(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
52 Misleading or deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN).
53 False or misleading representations
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;
(aa) falsely represent that services are of a particular standard, quality, value or grade;
(b) falsely represent that goods are new;
(bb) falsely represent that a particular person has agreed to acquire goods or services;
(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d) represent that the corporation has a sponsorship, approval or affiliation it does not have;
(e) make a false or misleading representation with respect to the price of goods or services;
(ea) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods;
(eb) make a false or misleading representation concerning the place of origin of goods;
(f) make a false or misleading representation concerning the need for any goods or services; or
(g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
Note: For rules relating to representations as to the country of origin of goods, see Division 1AA (sections 65AA to 65AN).
53A False representations and other misleading or offensive conduct in relation to land
(1) A corporation shall not, in trade or commerce, in connexion with the sale or grant, or the possible sale or grant, of an interest in land or in connexion with the promotion by any means of the sale or grant of an interest in land:
(a) represent that the corporation has a sponsorship, approval or affiliation it does not have;
(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; or
(c) offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.
(2) A corporation shall not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land.
(2A) Nothing in this section shall be taken as implying that other provisions of this Division do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
(3) In this section, interest, in relation to land, means:
(a) a legal or equitable estate or interest in the land;
(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 connexion with, the land.
53B Misleading conduct in relation to employment
A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.
53C Single price to be stated in certain circumstances
(1) A corporation must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person (the relevant person); or
(b) the promotion by any means of the supply of goods or services to a person (the relevant person) or of the use of goods or services by a person (the relevant person);
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 corporation also:
(c) specifies, in a prominent way and as a single figure, the single price for the goods or services; and
(d) if, in relation to goods:
(i) the corporation does not include in the single price a charge that is payable in relation to sending the goods from the supplier to the relevant person; and
(ii) the corporation knows, at the time of the representation, the minimum amount of a charge in relation to sending the goods from the supplier to the relevant person that must be paid by the relevant person;
specifies that minimum amount.
(2) A corporation 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 relevant person.
(3) Subsection (1) does not apply if the representation is made exclusively to a body corporate.
(4) For the purposes of paragraph (1)(c), the corporation 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.
(5) Subsection (4) does not apply in relation to services to be supplied under a contract if the following apply:
(a) the contract provides for the supply of the services for the term of the contract;
(b) the contract provides for periodic payments for the services to be made during the term of the contract;
(c) if the contract also provides for the supply of goods—the goods are directly related to the supply of the services.
(6) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(7) In this section:
single price means the minimum quantifiable consideration for the supply concerned at the time of the representation concerned, including each of the following amounts (if any) that is quantifiable at that time:
(a) a charge of any description payable by the relevant person to the corporation making the representation (other than a charge that is payable at the option of the relevant person);
(b) the amount which reflects any tax, duty, fee, levy or charge imposed, on the corporation making the representation, in relation to the supply concerned;
(c) any amount paid or payable, by the corporation making the representation, in relation to the supply concerned 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 the relevant person in relation to the supply concerned.
Example 1: A corporation advertises lounge suites for sale. Persons have the option of paying for fabric protection. The fabric protection charge does not form part of the single price because of the exception in paragraph (a).
Example 2: The GST may be an example of an amount covered by paragraph (b).
Example 3: The passenger movement charge imposed under the Passenger Movement Charge Act 1978 may be an example of an amount covered by paragraph (c). Under an arrangement under section 10 of the Passenger Movement Charge Collection Act 1978 airlines may pay an amount equal to the charge that would otherwise be payable by passengers departing Australia.
A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.
55 Misleading conduct to which Industrial Property Convention applies
A person shall 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.
55A Certain misleading conduct in relation to services
A corporation shall 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.
(1) A corporation shall not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation 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 the nature of the market in which the corporation carries on business and the nature of the advertisement.
(2) A corporation that has, in trade or commerce, advertised goods or services for supply at a specified price shall offer such goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the corporation carries on business and the nature of the advertisement.
A corporation shall 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 giving the corporation the names of prospective customers or otherwise assisting the corporation 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.
58 Accepting payment without intending or being able to supply as ordered
A corporation shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance:
(a) the corporation intends:
(i) not to supply the goods or services; or
(ii) to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted; or
(b) there are reasonable grounds, of which the corporation is aware or ought reasonably to be aware, for believing that the corporation will not be able to supply the goods or services within the period specified by the corporation or, if no period is specified, within a reasonable time.
59 Misleading representations about certain business activities
(1) A corporation shall not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that the corporation 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.
(2) Where a corporation, in trade or commerce, invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the persons concerned of work, or the investment of moneys by the persons concerned and the performance by them of work associated with the investment, the corporation shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.
A corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.
63A Unsolicited credit and debit cards
(1) A corporation shall not send a prescribed card to a person except:
(a) in pursuance of a request in writing by the person who will be under a liability to the person who issued the card in respect of the use of the card; or
(b) in renewal or replacement of, or in substitution for:
(i) a prescribed card of the same kind previously sent to the first‑mentioned person in pursuance of a request in writing 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 prescribed card of the same kind previously sent to the first‑mentioned person and used for a purpose for which it was intended to be used.
(2) Subsection (1) applies only in relation to the sending of a prescribed card by or on behalf of the person who issued the card.
(2A) A corporation shall not take any action that enables a person who has a credit card or a debit card to use the card as a debit card or a credit card, as the case may be, except in accordance with a request in writing by the person.
(3) In this section:
article includes a token, card or document.
credit card means an article that is of a kind described in one or more of the following paragraphs:
(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;
or an article that may be used as an article referred to in paragraph (a), (b) or (c).
debit card means:
(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).
prescribed card means a credit card, a debit card or an article that may be used as a credit card and a debit card.
64 Assertion of right to payment for unsolicited goods or services or for making entry in directory
(1) A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited goods unless the corporation has reasonable cause to believe that there is a right to payment.
(2A) A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment.
(3) A corporation shall not assert a right to payment from any person of a charge for the making in a directory of an entry relating to the person or to his or her profession, business, trade or occupation unless the corporation knows or has reasonable cause to believe that the person has authorized the making of the entry.
(4) A person is not liable to make any payment to a corporation, and is entitled to recover by action in a court of competent jurisdiction against a corporation any payment made by the person to the corporation, in full or part satisfaction of a charge for the making of an entry in a directory unless the person has authorized the making of the entry.
(5) For the purposes of this section, a corporation shall be taken to assert a right to a payment from a person for unsolicited goods or services, or of a charge for the making of an entry in a directory, if the corporation:
(a) makes a demand for the payment or asserts a present or prospective right to the payment;
(b) threatens to bring any legal proceedings with a view to obtaining the payment;
(c) places or causes to be placed the name of the person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment;
(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 stating the amount of the payment or setting out the price of the goods or services or the charge for the making of the entry and not stating as prominently (or more prominently) that no claim is made to the payment, or to payment of the price or charge, as the case may be.
(6) A person shall not be taken for the purposes of this section to have authorized the making of an entry in a directory unless:
(a) a document authorizing the making of the entry has been signed by the person or by another person authorized by him or her;
(b) a copy of the document has been given to the person before the right to payment of a charge for the making of the entry is asserted; and
(c) the document specifies:
(i) the name of the directory;
(ii) the name and address of the person publishing the directory;
(iii) particulars of the entry; and
(iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated.
(7) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a corporation shall be deemed to have been sent by that corporation unless the contrary is established.
(9) In a proceeding against a corporation in respect of a contravention of this section:
(a) in the case of a contravention constituted by asserting a right to payment from a person for unsolicited goods or unsolicited services—the burden lies on the corporation of proving that the corporation had reasonable cause to believe that there was a right to payment; or
(b) in the case of a contravention constituted by asserting a right to payment from a person of a charge for the making of an entry in a directory—the burden lies on the corporation of proving that the corporation knew or had reasonable cause to believe that the person had authorised the making of the entry.
(10) In this section:
directory includes any publication of a similar nature to a directory but does not include a newspaper published in good faith as a newspaper at regular intervals or a publication published, or to be published, by or under the authority of the Australian Telecommunications Commission.
making, in relation to an entry in a directory, means including, or arranging for the inclusion of, the entry.
65 Liability of recipient of unsolicited goods
(1) A person to whom unsolicited goods are supplied by a corporation, in trade or commerce, is not liable to make any payment for the goods and is not liable for the loss of or damage to the goods other than loss or damage resulting from the doing by him or her of a wilful and unlawful act in relation to the goods during the period specified in subsection (4).
(2) Subject to subsection (3), where, on or after the commencing date, a corporation sends, in trade or commerce, unsolicited goods to a person:
(a) neither the corporation nor any person claiming under the corporation is entitled after the expiration of the period specified in subsection (4) to take action for the recovery of the goods from the person to whom the goods were sent; and
(b) upon the expiration of that period the goods become, by force of this section, the property of the person to whom the goods were sent freed and discharged from all liens and charges of any description.
(3) 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 period specified in subsection (4) unreasonably refused to permit the sender or the owner of the goods to take possession of the goods;
(b) the sender or the owner of the goods has within that 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 period referred to in the foregoing subsections is:
(a) if the person who receives the unsolicited goods gives notice with respect to the goods to the sender in accordance with subsection (5):
(i) the period of 1 month next following the day on which the notice is given; or
(ii) the period of 3 months next following the day on which the person received the goods;
whichever first expires; and
(b) in any other case—the period of 3 months next following the day on which the person received the goods.
(5) A notice under subsection (4) shall be in writing and shall:
(a) state the name and address of the person who received the goods;
(b) state the address at which possession may be taken of the goods if it is an address other than that of the person; and
(c) contain a statement to the effect that the goods are unsolicited goods.
65A Application of provisions of Division to prescribed information providers
(1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than:
(a) a publication of matter in connection with:
(i) the supply or possible supply of goods or services;
(ii) the sale or grant, or possible sale or grant, of interests in land;
(iii) the promotion by any means of the supply or use of goods or services; or
(iv) the promotion by any means of the sale or grant of interests in land;
where:
(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or
(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:
(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:
(a) in any case—the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or
(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)—the publication was by way of a radio or television broadcast by the prescribed information provider.
(3) In this section:
prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:
(a) the holder of a licence granted under the Broadcasting Services Act 1992; and
(aa) a person who is the provider of a broadcasting service under a class licence under that Act; and
(ab) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and
(b) the Australian Broadcasting Corporation; and
(c) the Special Broadcasting Service Corporation.
relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
This Division sets out the meanings of a pyramid selling scheme and other related concepts. A corporation is prohibited from engaging in certain conduct in relation to a pyramid selling scheme (see sections 65AAC and 75AZO).
In this Division:
new participant, in a pyramid selling scheme, includes a person who has applied, or been invited, to participate in the scheme.
participant, in a pyramid selling scheme, means a person who participates in the scheme.
participate, in a pyramid selling scheme, means:
(a) establish or promote the scheme (whether alone or together with another person); or
(b) 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 otherwise takes part in the scheme).
participation payment has the meaning given by paragraph (a)
of the definition of pyramid selling scheme in subsection
65AAD(1).
payment, to a person or received by a person, means:
(a) the provision of a financial or non‑financial benefit to or for the benefit of the person; or
(b) the provision of a financial or non‑financial benefit partly to or for the benefit of the person, and partly to or for the benefit of someone else.
pyramid selling scheme has the meaning given by section 65AAD.
recruitment payment has the meaning given by paragraph (b) of the definition of pyramid selling scheme in subsection 65AAD(1).
65AAC Pyramid selling schemes—participation
(1) A corporation must not participate in a pyramid selling scheme.
(2) A corporation must not induce, or attempt to induce, a person to participate in a pyramid selling scheme.
65AAD What is a pyramid selling scheme?
(1) In this Act:
pyramid selling scheme means a scheme with both the following characteristics:
(a) to take part in the scheme, some or all new participants must make a payment (a participation payment) to another participant or participants in the scheme;
(b) the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled to a payment (a recruitment payment) in relation to the introduction to the scheme of further new participants.
(2) A scheme may be a pyramid selling 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.
(3) A scheme may be a pyramid selling 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).
65AAE Marketing schemes—are they pyramid selling schemes?
(1) To decide whether a scheme that involves the marketing of goods or services (or both) is a pyramid selling scheme, a court may 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) the extent to which the participation payments bear a reasonable relationship to the value of the goods or services that participants are entitled to be supplied 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 and 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 1AA—Country of origin representations
This Division provides that certain country of origin representations made about goods do not contravene section 52 (which deals with misleading or deceptive conduct), paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) (which all deal with false or misleading representations).
65AB General test for country of origin representations
If:
(a) a corporation makes a representation as to the country of origin of goods; and
(b) the goods have been substantially transformed in that country; and
(c) 50% or more of the cost of producing or manufacturing the goods (as the case may be) is attributable to production or manufacturing processes that occurred in that country; and
(d) the representation is not a representation to which section 65AC (product of/produce of representations) or section 65AD (prescribed logo representations) applies;
the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
65AC Test for representations that goods are product of/produce of a country
If:
(a) a corporation makes a representation that goods are the produce of a particular country (whether the representation uses the words “product of”, “produce of” or any other grammatical variation of the word “produce”); and
(b) the country was the country of origin of each significant ingredient or significant component of the goods; and
(c) all, or virtually all, processes involved in the production or manufacture happened in that country;
the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
65AD Test for representations made by means of prescribed logo
(1) If:
(a) a corporation makes a representation as to the country of origin of goods by means of a logo specified in regulations made under subsection (2); and
(b) the goods have been substantially transformed in the country represented by the logo as the country of origin of the goods; and
(c) the prescribed percentage of the cost of producing or manufacturing the goods (as the case may be) is attributable to production or manufacturing processes that occurred in that country;
the corporation does not contravene section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i) by reason only of making the representation.
(2) The regulations may, in relation to a specified logo, prescribe a percentage in the range of 51% to 100% as the percentage applicable to goods for the purposes of paragraph (1)(c).
65AE Substantial transformation of goods
(1) For the purposes of this Division, goods are substantially transformed in a country if they undergo a fundamental change in that country in form, appearance or nature such that the goods existing after the change are new and different goods from those existing before the change.
(2) Without limiting subsection (1), the regulations may prescribe changes (whether in relation to particular classes of goods or otherwise) that are not fundamental changes for the purposes of subsection (1), and may include examples (in relation to particular classes of goods or otherwise) of changes which are fundamental changes for the purposes of subsection (1).
65AF Method of working out costs of production or manufacture
For the purposes of this Division, the cost of producing or manufacturing goods is to be worked out under Subdivision B.
Subdivision B—Cost of production or manufacture of goods
In this Subdivision:
inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.
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.
65AH Cost of producing or manufacturing goods
The cost of producing or manufacturing goods means the sum of:
(a) the expenditure on materials in respect of the goods, worked out under section 65AJ; and
(b) the expenditure on labour in respect of the goods, worked out under section 65AK; and
(c) the expenditure on overheads in respect of the goods, worked out under section 65AL.
Calculation of expenditure on materials
(1) Expenditure on materials in respect of goods means the cost of materials:
(a) incurred by the producer or manufacturer of the goods (as the case may be); and
(b) that are used in the production or manufacture of the goods; and
(c) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe materials that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
(a) the cost of a particular material, or a part of such a cost, that is not allowable in respect of goods, or classes of goods; and
(b) the manner of working out the cost of a material, or part of the cost.
Calculation of expenditure on labour
(1) Expenditure on labour in respect of goods means the sum of each labour cost:
(a) that is incurred by the producer or manufacturer of the goods (as the case may be); and
(b) that relates to the production or manufacture of the goods; and
(c) that can reasonably be allocated to the production or manufacture of the goods; and
(d) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe labour costs that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
(a) a particular labour cost, or a part of a labour cost, that is not allowable in respect of goods, or classes of goods; and
(b) the manner of working out a labour cost, or part of the cost.
Calculation of expenditure on overheads
(1) Expenditure on overheads in respect of goods means the sum of each overhead cost:
(a) that is incurred by the producer or manufacturer of the goods (as the case may be); and
(b) that relates to the production or manufacture of the goods; and
(c) that can reasonably be allocated to the production or manufacture of the goods; and
(d) that has not been prescribed under paragraph (2)(a).
Regulations may prescribe overhead costs that are not allowable
(2) The regulations may prescribe, for the purposes of subsection (1):
(a) a particular overhead cost, or a part of an overhead cost, that is not allowable in respect of goods, or classes of goods; and
(b) the manner of working out an overhead cost, or part of the cost.
65AM Regulations may prescribe rules for determining the local percentage costs of production or manufacture
(1) Subject to subsection (2), the regulations may prescribe rules for determining the percentage of the total cost of production or manufacture of goods attributable to production or manufacturing processes that occurred in a particular country.
Note: Section 65AH deals with the cost of production or manufacture of goods.
(2) Rules prescribed under subsection (1) must not discriminate (whether favourably or unfavourably) between countries or classes of countries.
Subdivision C—Evidentiary matters
65AN Proceedings relating to false, misleading or deceptive conduct or representations
(1) If:
(a) proceedings are brought against a person in respect of section 52, paragraph 53(a) or (eb) or paragraph 75AZC(1)(a) or (i); and
(b) the person seeks to rely on a provision of this Division, or of a regulation made under this Division, in the proceedings;
the person bears an evidential burden in relation to the matters set out in the provision on which the person seeks to rely.
(2) In this section:
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.
Division 1A—Product safety and product information
(1) The Minister may publish a notice in writing in the Gazette containing one or both of the following:
(a) a statement that goods of a kind specified in the notice are under investigation to determine whether the goods will or may cause injury to any person;
(b) a warning of possible risks involved in the use of goods of a kind specified in the notice.
(2) Where:
(a) an investigation referred to in subsection (1) has been completed; and
(b) neither a notice under section 65J inviting a supplier to notify the Commission whether the supplier wishes the Commission to hold a conference nor a notice under section 65L has been published in relation to the goods since the commencement of the investigation;
the Minister shall, as soon as practicable after the investigation has been completed, by notice in writing published in the Gazette, announce the results of the investigation, and may announce in the notice whether, and if so, what action is proposed to be taken in relation to the goods under this Division.
65C Product safety standards and unsafe goods
(1) A corporation shall not, in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of a kind:
(a) in respect of which there is a prescribed consumer product safety standard and which do not comply with that standard;
(b) in respect of which there is in force a notice under this section declaring the goods to be unsafe goods; or
(c) in respect of which there is in force a notice under this section imposing a permanent ban on the goods.
(2) The regulations may, in respect of goods of a particular kind, prescribe a consumer product safety standard consisting of such requirements as to:
(a) performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods;
(b) testing of the goods during, or after the completion of, manufacture or processing; and
(c) the form and content of markings, warnings or instructions to accompany the goods;
as are reasonably necessary to prevent or reduce risk of injury to any person.
(3) A corporation shall not export goods the
supply in
(4) Where the Minister approves the export of goods under subsection (3), the Minister shall cause a statement setting out particulars of the approval to be laid before each House of the Parliament within 7 sitting days of that House after the approval is given.
(5) Subject to section 65J, where it appears to the Minister that goods of a particular kind will or may cause injury to any person, the Minister may, by notice in writing published in the Gazette, declare the goods to be unsafe goods.
(6) A notice under subsection (5) remains in force until the end of 18 months after the date of publication of the notice in the Gazette unless it is revoked before the end of that period.
(7) Subject to section 65J, where:
(a) a period of 18 months has elapsed after the date of publication of a notice in the Gazette declaring goods to be unsafe goods; and
(b) there is not a prescribed consumer product safety standard in respect of the goods;
the Minister may, by notice in writing published in the Gazette, impose a permanent ban on the goods.
(8) Where:
(a) the supplying of goods by a corporation constitutes a contravention of this section by reason that the goods do not comply with a prescribed consumer product safety standard;
(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information in relation to the goods; and
(c) the person would not have suffered the loss or damage if the goods had complied with that standard;
the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.
(9) Where:
(a) the supplying of goods by a corporation constitutes a contravention of this section by reason that there is in force a notice under this section declaring the goods to be unsafe goods or imposing a permanent ban on the goods; and
(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods;
the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.
65D Product information standards
(1) A corporation shall not, in trade or commerce, supply goods that are intended to be used, or are of a kind likely to be used, by a consumer, being goods of a kind in respect of which a consumer product information standard has been prescribed, unless the corporation has complied with that standard in relation to those goods.
(2) The regulations may, in respect of goods of a particular kind, prescribe a consumer product information standard consisting of such requirements as to:
(a) the disclosure of information relating to the performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and
(b) the form and manner in which that information is to be disclosed on or with the goods;
as are reasonably necessary to give persons using the goods information as to the quantity, quality, nature or value of the goods.
(3) Subsection (1) does not apply to goods
that are intended to be used outside
(4) If there is applied to goods:
(a) a statement that the goods are for export only; or
(b) a statement indicating by the use of words authorised by the regulations to be used for the purposes of this subsection that the goods are intended to be used outside Australia;
it shall be presumed for the purposes of this section, unless the contrary is established, that the goods are intended to be so used.
(5) For the purposes of subsection (4), a statement shall be deemed to be applied to goods if:
(a) the statement is woven in, impressed on, worked into or annexed or affixed to the goods; or
(b) the statement is applied to a covering, label, reel or thing in or with which the goods are supplied.
(6) A reference in subsection (5) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and a reference in that subsection to a label includes a reference to a band or ticket.
(7) Where:
(a) the supplying of goods by a corporation constitutes a contravention of this section by reason that the corporation has not complied with a prescribed consumer product information standard in relation to the goods;
(b) a person suffers loss or damage by reason of not having particular information in relation to the goods; and
(c) the person would not have suffered the loss or damage if the corporation had complied with that standard in relation to the goods;
the person shall be deemed, for the purposes of this Act, to have suffered the loss or damage by the supplying of the goods.
65E Power of Minister to declare product safety or information standards
(1) The Minister may, by notice in writing published in the Gazette, declare that, in respect of goods of a kind specified in the notice, a particular standard, or a particular part of a standard, prepared or approved by Standards Australia International Limited or by a prescribed association or body, or such a standard or part of a standard with additions or variations specified in the notice, is a consumer product safety standard for the purposes of section 65C or a consumer product information standard for the purposes of section 65D.
(2) Where a notice is so published, the standard, or the part of the standard, referred to in the notice, or the standard or part of a standard so referred to with additions or variations specified in the notice, is taken to be (as the case requires):
(a) for the purposes of section 65C—a prescribed consumer product safety standard; or
(b) for the purposes of section 65D—a prescribed consumer product information standard; or
(c) for the purposes of section 75AZS—a consumer product safety standard prescribed by regulations made for the purposes of section 65C; or
(d) for the purposes of section 75AZT—a consumer product information standard prescribed by regulations made for the purpose of subsection 65D(2).
(3) Subsection (1) does not authorise the publication of a notice in relation to goods of a particular kind if the standard or the part of the standard referred to in the notice, or the standard or the part of the standard so referred to with additions and variations specified in the notice, is inconsistent with a standard prescribed in relation to goods of that kind by regulations made for the purposes of section 65C or 65D.
(1) Subject to section 65J, where:
(a) a corporation (in this section referred to as the supplier), in trade or commerce, supplies on or after 1 July 1986 goods that are intended to be used, or are of a kind likely to be used, by a consumer;
(b) one of the following subparagraphs applies:
(i) it appears to the Minister that the goods are goods of a kind which will or may cause injury to any person;
(ii) the goods are goods of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard;
(iii) the goods are goods of a kind in relation to which there is in force a notice under subsection 65C(5) or (7); and
(c) it appears to the Minister that the supplier has not taken satisfactory action to prevent the goods causing injury to any person;
the Minister may, by notice in writing published in the Gazette, require the supplier to do one or more of the following:
(d) take action within the period specified in the notice to recall the goods;
(e) disclose to the public, or to a class of persons specified in the notice, in the manner and within the period specified in the notice, one or more of the following:
(i) the nature of a defect in, or a dangerous characteristic of, the goods identified in the notice;
(ii) the circumstances, being circumstances identified in the notice, in which the use of the goods is dangerous; or
(iii) procedures for disposing of the goods specified in the notice;
(f) inform the public, or a class of persons specified in the notice, in the manner and within the period specified in the notice, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:
(i) except where the notice identifies a dangerous characteristic of the goods—repair the goods;
(ii) replace the goods;
(iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods;
within the period specified in the notice.
(2) Notwithstanding subparagraph (1)(f)(iii), where the Minister, in a notice under subsection (1), requires the supplier to take action under paragraph (1)(f), the Minister may specify in the notice that, where:
(a) the supplier chooses to refund the price of the goods; and
(b) a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier;
the amount of a refund may be reduced by the supplier by an amount attributable to the use which a person has had of the goods, being an amount calculated in a manner specified in the notice.
(3) The Minister may, by notice in writing published in the Gazette, give directions as to the manner in which the supplier is to carry out a recall of goods required under subsection (1).
(4) Where the supplier, under subsection (1), undertakes to repair goods, the supplier shall cause the goods to be repaired so that:
(a) any defect in the goods identified in the notice under subsection (1) is remedied; and
(b) if there is a prescribed consumer product safety standard in respect of the goods—the goods comply with that standard.
(5) Where the supplier, under subsection (1), undertakes to replace goods, the supplier shall replace the goods with like goods which:
(a) if a defect in, or a dangerous characteristic of, the first‑mentioned goods was identified in the notice under subsection (1)—do not contain that defect or have that characteristic; and
(b) if there is a prescribed consumer product safety standard in respect of goods of that kind—comply with that standard.
(6) Where the supplier, under subsection (1), undertakes to repair goods or replace goods, the cost of the repair or replacement, including any necessary transportation costs, shall be borne by the supplier.
(7) Where goods are recalled, whether voluntarily or in accordance with a requirement made by the Minister under paragraph (1)(d), a person who has supplied or supplies any of the recalled goods to another person outside Australia shall, as soon as practicable after the supply of those goods, give a notice in writing to that other person:
(a) stating that the goods are subject to recall;
(b) if the goods contain a defect or have a dangerous characteristic—setting out the nature of that defect or characteristic; and
(c) if the goods do not comply with a prescribed consumer product safety standard in respect of the goods—setting out the nature of the non‑compliance.
(8) Where a person is required under subsection (7) to give a notice in writing to another person, the first‑mentioned person shall, within 10 days after giving that notice, provide the Minister with a copy of that notice.
(9) A person who contravenes subsection (8) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
(11) For the purposes of this section, things that are goods at the time they are supplied are taken to be goods at all times after the supply, even if they become fixtures.
(10) Subsection (9) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
65G Compliance with product recall order
Where a notice under subsection 65F(1) is in force in relation to a corporation, the corporation:
(a) shall comply with the requirements and directions in the notice; and
(b) shall not, in trade or commerce:
(i) where the notice identifies a defect in, or a dangerous characteristic of, the goods—supply goods of the kind to which the notice relates which contain that defect or have that characteristic; or
(ii) in any other case—supply goods of the kind to which the notice relates.
65H Loss or damage caused by contravention of product recall order
Where:
(a) a corporation contravenes section 65G by:
(i) supplying goods of a kind in relation to which a notice under subsection 65F(1) is in force; or
(ii) failing to comply with the requirements of such a notice; and
(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods;
the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods, or by the failure of the corporation to comply with the notice, as the case may be.
65J
(1) Subject to section 65L, where the Minister proposes to publish a notice under subsection 65C(5) or (7) or 65F(1) in relation to goods of a particular kind, the Minister shall prepare:
(a) a draft of the notice proposed to be published; and
(b) a summary of the reasons for the proposed publication of the notice;
and shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a supplier) who supplied or proposes to supply goods of that kind to notify the Commission, within the period (in this section referred to as the relevant period) of 10 days commencing on the day specified in the last‑mentioned notice, being not earlier than the day on which that notice is published in the Gazette, whether the supplier wishes the Commission to hold a conference in relation to the proposed publication of the first‑mentioned notice.
(2) A notice published under subsection (1) shall set out a copy of the draft notice under subsection 65C(5) or (7) or 65F(1) and a copy of the summary of the reasons for the proposed publication of the notice.
(3) If no supplier notifies the Commission in writing within the relevant period or within such longer period as the Commission allows that the supplier wishes the Commission to hold a conference in relation to the proposed publication of the notice under subsection 65C(5) or (7) or 65(1), the Commission shall notify the Minister accordingly.
(4) If a supplier notifies the Commission in writing within the relevant period or within such longer period as the Commission allows that the supplier wishes the Commission to hold a conference in relation to the proposed publication of a notice under subsection 65C(5) or (7) or 65F(1), the Commission shall appoint a day (being not later than 14 days after the end of that period), time and place for the holding of the conference, and give notice of the day, time and place so appointed to the Minister and to each supplier who so notified the Commission.
(5) At a conference under this section:
(a) the Commission shall be represented by a member or members nominated by the Chairperson;
(b) each supplier who notified the Commission in accordance with subsection (4) is entitled to be present or to be represented;
(c) any other person whose presence at the conference is considered by the Commission to be appropriate is entitled to be present or to be represented;
(d) the Minister or a person or persons nominated in writing by the Minister is or are entitled to be present; and
(e) the procedure to be followed shall be as determined by the Commission.
(6) The Commission shall cause a record of proceedings at a conference under this section to be kept.
(7) The Commission shall, as far as is practicable, ensure that each person who, in accordance with subsection (5), is entitled to be present or who is representing such a person at a conference is given a reasonable opportunity at the conference to present his or her case and, in particular, to inspect any documents which the Commission proposes to consider for the purpose of making a recommendation after the conclusion of the conference, other than any document that contains particulars of a secret formula or process, and to make submissions in relation to those documents.
65K Recommendation after conclusion of conference
As soon as is practicable after the conclusion of a conference in relation to the proposed publication of a notice under subsection 65C(5) or (7) or 65F(1), the Commission shall:
(a) by notice in writing given to the Minister, recommend that:
(i) the Minister publish the first‑mentioned notice in the same terms as the draft notice referred to in subsection 65J(1);
(ii) the Minister publish the first‑mentioned notice with such modifications as are specified by the Commission; or
(iii) the Minister not publish the first‑mentioned notice; and
(b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.
65L Exception in case of danger to public
(1) Where it appears to the Minister that goods of a particular kind create an imminent risk of death, serious illness or serious injury, the Minister may, by notice in writing published in the Gazette, certify that a notice in relation to the goods under subsection 65C(5) or 65F(1) should be published without delay.
(2) Where the Minister publishes a notice in the Gazette under subsection (1):
(a) in a case where the notice is published before the Minister takes any action under subsection 65J(1) in relation to goods of a particular kind—section 65J does not apply in relation to the action that the Minister may take under subsection 65C(5) or 65F(1) in relation to goods of that kind; or
(b) in any other case—any action taken by the Minister under subsection 65J(1) in relation to goods of a particular kind ceases to have effect and, if a conference had, under section 65J, been arranged or such a conference had commenced or been completed without the Commission making a recommendation under section 65K, the Minister may publish the notice under subsection 65C(5) or 65F(1) without regard to the action taken under subsection 65J(1).
65M Conference after goods banned
(1) Where:
(a) a notice has been published under subsection 65C(5) in relation to goods of a particular kind; and
(b) the Minister publishes a notice under section 65L in relation to goods of that kind;
the Minister shall, by notice in writing published in the Gazette, invite any person (in this section referred to as a supplier) who supplied or proposes to supply goods of that kind to notify the Commission within the period (in this section referred to as the relevant period) of 10 days commencing on the day specified in the last‑mentioned notice, being not earlier than the day on which that notice is published in the Gazette, to notify the Commission whether the supplier wishes the Commission to hold a conference in relation to the notice referred to in paragraph (a).
(2) If a supplier notifies the Commission in writing within the relevant period, or within such longer period as the Commission allows, that the supplier wishes the Commission to hold a conference in relation to the notice published under subsection 65C(5), the Commission shall appoint a day (being not later than 14 days after the end of that period), time and place for the holding of the conference and give notice of the day, time and place so appointed to the Minister and to each supplier who so notified the Commission.
(3) Subsections 65J(5), (6) and (7) apply in relation to a conference held under this section.
65N Recommendation after conclusion of conference
As soon as is practicable after the conclusion of a conference in relation to a notice that has been published under subsection 65C(5), the Commission shall:
(a) by notice in writing given to the Minister, recommend that the notice under subsection 65C(5):
(i) remain in force;
(ii) be varied; or
(iii) be revoked; and
(b) cause a copy of the notice in writing given to the Minister to be given to each supplier who was present or represented at the conference.
65P Minister to have regard to recommendation of Commission
Where the Commission, under section 65K or 65N, makes a recommendation to the Minister in relation to the proposed publication of a notice under subsection 65C(5) or (7) or 65F(1) or in relation to a notice that has been published under subsection 65C(5):
(a) the Minister shall have regard to the recommendation; and
(b) where the Minister decides to act otherwise than in accordance with the recommendation, the Minister shall, by notice in writing published in the Gazette, set out the reasons for the Minister’s decision.
65Q Power to obtain information, documents and evidence
(1) Where the Minister or an officer authorised by the Minister for the purposes of this section (in this section referred to as an authorised officer) has reason to believe that a corporation which, in trade or commerce, supplies goods of a particular kind which are intended to be used or are of a kind likely to be used by a consumer and which will or may cause injury to any person is capable of furnishing information, producing documents or giving evidence relating to goods of that kind, the Minister or the authorised officer may, by notice in writing served on the corporation, require the corporation:
(a) to furnish to the Minister, by writing signed by a competent officer of the corporation, in the manner, and within such reasonable time, as are specified in the notice, any such information;
(b) to produce to the Minister, or to the authorised officer, in accordance with such reasonable requirements as are specified in the notice, any such documents; or
(c) to cause a competent officer of the corporation to appear before the Minister or the authorised officer at such reasonable time and place as are specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(2) Where an authorised officer has reason to believe that goods of a particular kind which are intended to be used or are of a kind likely to be used by a consumer will or may cause injury to a person, an authorised officer may, for the purposes of ascertaining whether goods of that kind will or may cause injury to any person, enter any premises in or from which the authorised officer has reason to believe a corporation supplies goods of that kind in trade or commerce and:
(a) inspect goods of that kind;
(b) take samples of goods of that kind;
(c) inspect any documents relating to goods of that kind and make copies of, or take extracts from, those documents; or
(d) inspect equipment used in the manufacturing, processing or storage of goods of that kind.
(3) The powers of an authorised officer under subsection (2) shall not be exercised except:
(a) pursuant to a warrant issued under subsection (5); or
(b) in circumstances where the exercise of those powers is required without delay in order to protect life or public safety.
(4) An authorised officer may apply to a person who is a judge of the Court or of the Supreme Court of a State or Territory for the issue under subsection (5) of a warrant to exercise the powers of an authorised officer under subsection (2) in relation to premises.
(5) Where an application under subsection (4) is made to a person who is a judge of such a court, the person may issue a warrant authorising an authorised officer named in the warrant, with such assistance as the officer thinks necessary and if necessary by force, to enter the premises specified in the warrant and to exercise the powers of an authorised officer under subsection (2) in relation to those premises.
(6) A person who is a judge of such a court shall not issue a warrant under subsection (5) unless:
(a) an affidavit has been furnished to the person setting out the grounds on which the issue of the warrant is being sought;
(b) the applicant or some other person has given to the first‑mentioned person such further information (if any) as the first‑mentioned person requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the first‑mentioned person is satisfied that there are reasonable grounds for issuing the warrant.
(7) A warrant issued under subsection (5) shall:
(a) specify the purpose for which the warrant is issued;
(b) state whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
(c) include a description of the kind of goods authorised to be inspected or sampled; and
(d) specify a day, not being later than 7 days after the day on which the warrant is issued, at the end of which the warrant ceases to have effect.
(7A) An authorised officer or a person assisting the authorised officer must, before any person enters the premises under a warrant issued under subsection (5):
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(7B) An authorised officer or a person assisting the authorised officer is not required to comply with subsection (7A) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including the authorised officer and the person assisting the authorised officer); or
(b) that the effective execution of the warrant is not frustrated.
(8) Where an authorised officer takes samples under paragraph (2)(b), the officer shall pay a reasonable price for the goods sampled.
(9) A person who refuses or fails to comply with a notice under this section is guilty of an offence punishable on conviction by a fine not exceeding 40 penalty points.
(9A) Subsection (9) does not apply if the person complies with the notice to the extent to which the person is capable of complying with it.
Note: A defendant bears an evidential burden in relation to the matter in subsection (9A) (see subsection 13.3(3) of the Criminal Code).
(9B) Subsection (9) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
(9C) If:
(a) a person, in purported compliance with a notice under this section, furnishes information or gives evidence; and
(b) the person does so knowing that the information or evidence is false or misleading in a material particular;
the person is guilty of an offence punishable on conviction by imprisonment for not longer than 12 months.
(10) A person who refuses or fails to provide an authorised officer acting in accordance with subsection (2) with all reasonable facilities and assistance for the effective exercise of the authorised officer’s powers under that subsection is guilty of an offence.
Penalty: Imprisonment for 2 years.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. Under subsection 4D(1) of that Act, these penalties are only maximum penalties for the offences. Subsection 4B(2) of that Act allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of one of the offences, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
(11) Any information furnished or evidence given by a person under this section, any document produced by a person under this section, and any information, evidence or document obtained under this section, is not admissible in evidence against the person:
(a) in any proceedings instituted by the person; or
(b) in any other proceedings, other than proceedings against the person for a contravention of a provision of this section.
65R Notification of voluntary recall
(1) Where a corporation voluntarily takes action to recall goods because the goods will or may cause injury to any person, the corporation shall, within 2 days after taking that action, give a notice in writing to the Minister:
(a) stating that the goods are subject to recall; and
(b) setting out the nature of the defect in, or dangerous characteristic of, the goods.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount not greater than 5 times the maximum fine that the court could impose on an individual convicted of the same offence.
(4) For the purposes of this section, goods includes things that were goods at the time they were supplied but became fixtures after the supply.
(3) Subsection (2) is an offence of strict liability.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
65S Copies of certain notices to be given to suppliers or published in certain newspapers
(1) Where the Minister publishes a notice in writing in the Gazette under subsection 65B(1), 65J(1), 65L(1) or 65M(1), the Minister shall, within 2 days after the publication of that notice in the Gazette, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period, either:
(a) cause a copy of the notice to be given to each person who, to the knowledge of the Minister, supplies goods of the kind to which the notice relates; or
(b) cause a copy of the notice to be published in
a newspaper circulating in each part of
(2) Any failure to comply with subsection (1) in relation to a notice does not invalidate the notice.
65T Certain action not to affect insurance contracts
The liability of an insurer under a contract of insurance with a corporation, being a contract relating to the recall of goods supplied or proposed to be supplied by the corporation or to the liability of the corporation with respect to possible defects in goods supplied or proposed to be supplied by the corporation, shall not be affected by reason only that the corporation gives to the Minister, to the Commission, to a person appointed or engaged under the Public Service Act 1999, or to an officer of an authority of the Commonwealth information relating to any goods supplied or proposed to be supplied by the corporation.
Division 2—Conditions and warranties in consumer transactions
(1) In this Division:
(a) a reference to the quality of goods includes a reference to the state or condition of the goods;
(b) a reference to a contract does not include a reference to a contract made before the commencing date;
(c) a reference to antecedent negotiations in relation to a contract for the supply by a corporation of goods to a consumer is a reference to any negotiations or arrangements conducted or made with the consumer by another person in the course of a business carried on by the other person whereby the consumer was induced to make the contract or which otherwise promoted the transaction to which the contract relates; and
(d) a reference to the person by whom any antecedent negotiations were conducted is a reference to the person by whom the negotiations or arrangements concerned were conducted or made.
(2) Goods of any kind are of merchantable quality within the meaning of this Division if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances.
66A Convention on Contracts for the International
The
provisions of the United Nations Convention on Contracts for the International
Sale of Goods, adopted at
Where:
(a) the proper law of a contract for the supply by a corporation of goods or services to a consumer would, but for a term that it should be the law of some other country or a term to the like effect, be the law of any part of Australia; or
(b) a contract for the supply by a corporation 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 a State or Territory for all or any of the provisions of this Division;
this Division applies to the contract notwithstanding that term.
68 Application of provisions not to be excluded or modified
(1) Any 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) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Division;
(b) the exercise of a right conferred by such a provision;
(c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or
(d) the application of section 75A;
is void.
(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section.
68A Limitation of liability for breach of certain conditions or warranties
(1) Subject to this section, a term of a contract for the supply by a corporation of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 68 by reason only that the term limits the liability of the corporation for a breach of a condition or warranty (other than a condition or warranty implied by section 69) to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
(2) Subsection (1) 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 corporation to rely on that term of the contract.
(3) In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall 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 corporation and the person to whom the goods or services were supplied (in this subsection referred to as 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); and
(d) in the case of the supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer.
68B Limitation of liability in relation to supply of recreational services
(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:
(a) the application of section 74 to the supply of the recreational services under the contract; or
(b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or
(c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract;
so long as:
(d) the exclusion, restriction or modification is limited to liability for death or personal injury; and
(e) the contract was entered into after the commencement of this section.
(2) In this section:
disease includes any physical or mental ailment, disorder,
defect or morbid condition, whether of sudden onset or gradual development and
whether of genetic or other origin.
injury means any physical or mental injury.
personal injury means:
(a) an injury of an individual (including the aggravation, acceleration or recurrence of an injury of the individual); or
(b) the contraction, aggravation, acceleration, or recurrence of a disease of an individual; or
(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to, or result in harm or disadvantage to:
(i) the individual; or
(ii) the community.
recreational services means services that consist of participation in:
(a) a sporting activity or a similar leisure‑time pursuit; or
(b) any other activity that:
(i) involves a significant degree of physical exertion or physical risk; and
(ii) is undertaken for the purposes of recreation, enjoyment or leisure.
(3) The definition of injury in subsection (2) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section.
69 Implied undertakings as to title, encumbrances and quiet possession
(1) In every contract for the supply of goods by a corporation to a consumer, other than a contract to which subsection (3) applies, there is:
(a) an implied condition that, in the case of a supply by way of sale, the supplier has a right to sell the goods, and, in the case of an agreement to sell or a hire‑purchase agreement, the supplier will have a right to sell the goods at the time when the property is to pass;
(b) an implied warranty that the consumer will enjoy quiet possession of the goods except so far as it may lawfully be disturbed by the supplier or by another person who is entitled to the benefit of any charge or encumbrance disclosed or known to the consumer before the contract is made; and
(c) in the case of a contract for the supply of goods under which the property is to pass or may pass to the consumer—an implied warranty that the goods are free, and will remain free until the time when the property passes, from any charge or encumbrance not disclosed or known to the consumer before the contract is made.
(2) A corporation is not, in relation to a contract for the supply of goods, in breach of the implied warranty referred to in paragraph (1)(c) by reason only of the existence of a floating charge over assets of the corporation unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.
(3) In a contract for the supply of goods by a corporation to a consumer in the case of which there appears from the contract or is to be inferred from the circumstances of the contract an intention that the supplier should transfer only such title as he or she or a third person may have, there is:
(a) an implied warranty that all charges or encumbrances known to the supplier and not known to the consumer have been disclosed to the consumer before the contract is made; and
(b) an implied warranty that:
(i) the supplier;
(ii) in a case where the parties to the contract intend that the supplier should transfer only such title as a third person may have—that person; and
(iii) anyone claiming through or under the supplier or that third person otherwise than under a charge or encumbrance disclosed or known to the consumer before the contract is made;
will not disturb the consumer’s quiet possession of the goods.
(1) Where there is a contract for the supply (otherwise than by way of sale by auction) by a corporation in the course of a business of goods to a consumer by description, there is an implied condition that the goods will correspond with the description, and, if the supply is by reference to a sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
(2) A supply of goods is not prevented from being a supply by description for the purposes of subsection (1) by reason only that, being exposed for sale or hire, they are selected by the consumer.
71 Implied undertakings as to quality or fitness
(1) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section:
(a) as regards defects specifically drawn to the consumer’s attention before the contract is made; or
(b) if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
(2) Where a corporation supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the skill or judgment of the corporation or of that person.
(3) Subsections (1) and (2) apply to a contract for the supply of goods made by a person who in the course of a business is acting as agent for a corporation as they apply to a contract for the supply of goods made by a corporation in the course of a business, except where that corporation is not supplying in the course of a business and either the consumer knows that fact or reasonable steps are taken to bring it to the notice of the consumer before the contract is made.
Where in a contract for the supply (otherwise than by way of sale by auction) by a corporation in the course of a business of goods to a consumer there is a term in the contract, expressed or implied, to the effect that the goods are supplied by reference to a sample:
(a) there is an implied condition that the bulk will correspond with the sample in quality;
(b) there is an implied condition that the consumer will have a reasonable opportunity of comparing the bulk with the sample; and
(c) there is an implied condition that the goods will be free from any defect, rendering them unmerchantable, that would not be apparent on reasonable examination of the sample.
73 Liability for loss or damage from breach of certain contracts
(1) Where:
(a) a corporation (in this section referred to as the supplier) supplies goods, or causes goods to be supplied, to a linked credit provider of the supplier and a consumer enters into a contract with the linked credit provider for the provision of credit in respect of the supply by way of sale, lease, hire or hire‑purchase of the goods to the consumer; or
(b) a consumer enters into a contract with a linked credit provider of a corporation (in this section also referred to as the supplier) for the provision of credit in respect of the supply by the supplier of goods or services, or goods and services, to the consumer;
and the consumer suffers loss or damage as a result of misrepresentation, breach of contract, or failure of consideration in relation to the contract, or as a result of a breach of a condition that is implied in the contract by virtue of section 70, 71 or 72 or of a warranty that is implied in the contract by virtue of section 74 of this Act or section 12ED of the Australian Securities and Investments Commission Act 2001, the supplier and the linked credit provider are, subject to this section, jointly and severally liable to the consumer for the amount of the loss or damage, and the consumer may recover that amount by action in accordance with this section in a court of competent jurisdiction.
(2) Where:
(a) a corporation (in this section also referred to as the supplier) supplies goods, or causes goods to be supplied, to a credit provider who is not a linked credit provider of the supplier;
(b) a consumer enters into a contract with the credit provider for the provision of credit in respect of the supply by way of sale, lease, hire or hire‑purchase of the goods to the consumer;
(c) antecedent negotiations in relation to the contract were conducted with the consumer by or on behalf of the supplier; and
(d) the credit provider did not take physical possession of the goods before they were delivered to the consumer;
or where a consumer enters into a contract with a credit provider for the provision of credit in respect of the supply of services to the consumer by a corporation (in this section also referred to as the supplier) of which the credit provider is not a linked credit provider, and the consumer suffers loss or damage as a result of a breach of a condition that is implied in the contract by virtue of section 70, 71 or 72 or of a warranty that is implied in the contract by virtue of section 74 of this Act or section 12ED of the Australian Securities and Investments Commission Act 2001, the credit provider is not under any liability to the consumer for the amount of the loss or damage, but the consumer may recover that amount by action in a court of competent jurisdiction against the supplier.
(3) A linked credit provider of a particular supplier is not liable to a consumer by virtue of subsection (1) in proceedings arising under that subsection if the credit provider establishes:
(a) that the credit provided by the credit provider to the consumer was the result of an approach made to the credit provider by the consumer that was not induced by the supplier;
(b) where the proceedings relate to the supply by way of lease, hire or hire‑purchase of goods by the linked credit provider to the consumer, that:
(i) after due inquiry before becoming a linked credit provider of the supplier, the credit provider was satisfied that the reputation of the supplier in respect of the supplier’s financial standing and business conduct was good; and
(ii) after becoming a linked credit provider of the supplier, the credit provider had not had cause to suspect that:
(A) the consumer might be entitled to recover an amount of loss or damage suffered as a result of misrepresentation or breach of a condition or warranty referred to in subsection (1); and
(B) the supplier might be unable to meet the supplier’s liabilities as and when they fall due;
(c) where the proceedings relate to a contract of sale with respect to which a tied loan contract applies, that:
(i) after due inquiry before becoming a linked credit provider of the supplier, the credit provider was satisfied that the reputation of the supplier in respect of the supplier’s financial standing and business conduct was good; and
(ii) after becoming a linked credit provider of the supplier, but before the tied loan contract was entered into, the linked credit provider had not had cause to suspect that:
(A) the consumer might, if the contract was entered into, be entitled to recover an amount of loss or damage suffered as a result of misrepresentation, breach of contract or failure of consideration in relation to the contract or as a result of a breach of a condition or warranty referred to in subsection (1); and
(B) the supplier might be unable to meet the supplier’s liabilities as and when they fall due; or
(d) where the proceedings relate to a contract of sale with respect to which a tied continuing credit contract entered into by the linked credit provider applies, that, having regard to:
(i) the nature and volume of business carried on by the linked credit provider; and
(ii) such other matters as appear to be relevant in the circumstances of the case;
the linked credit provider, before becoming aware of the contract of sale or of proposals for the making of the contract of sale (whichever the linked credit provider first became aware of), had not had cause to suspect that a person entering into such a contract with the supplier might be entitled to claim damages against, or recover a sum of money from, the supplier for misrepresentation, breach of contract, failure of consideration, breach of a condition or breach of a warranty as referred to in subsection (1).
(4) Subject to subsection (5), in any proceedings in relation to a contract referred to in paragraph (1)(a) or (b) in which a credit provider claims damages or an amount of money from a consumer, the consumer may set up the liability of the credit provider under subsection (1) in diminution or extinction of the consumer’s liability.
(5) Subject to subsection (6), a consumer may not, in respect of a liability for which, by reason of this section, a supplier and a linked credit provider are jointly and severally liable:
(a) bring proceedings to recover an amount of loss or damage from the credit provider; or
(b) where proceedings are brought against the consumer by the credit provider, make a counter‑claim or exercise the right conferred by subsection (4) against the credit provider;
unless the consumer brings the action against the supplier and the credit provider jointly or, in the case of a counter‑claim or right conferred by subsection (4), claims in the proceedings against the supplier in respect of the liability by third‑party proceedings or otherwise.
(6) Subsection (5) and paragraphs (8)(a) and (9)(a) do not apply in relation to proceedings where:
(a) the supplier has been dissolved or is commenced to be wound up; or
(b) in the opinion of the court in which the proceedings are taken, it is not reasonably likely that a judgment obtained against the supplier would be satisfied and the court has, on the application of the consumer, declared that subsection (5) and paragraphs (8)(a) and (9)(a) do not apply in relation to the proceedings.
(7) The liability of a linked credit provider to a consumer for damages or a sum of money in respect of a contract referred to in subsection (1) does not exceed the sum of:
(a) the amount financed under the tied loan contract, tied continuing credit contract, lease contract, contract of hire or contract of hire‑purchase;
(b) the amount of interest (if any) or damages in the nature of interest allowed or awarded against the linked credit provider by the court; and
(c) the amount of costs (if any) awarded by the court against the linked credit provider or supplier or both.
(8) Where in proceedings arising under subsection (1), judgment is given against a supplier and a linked credit provider, the judgment:
(a) shall not be enforced against the linked credit provider unless a written demand made on the supplier for satisfaction of the judgment has remained unsatisfied for not less than 30 days; and
(b) may be enforced against the linked credit provider only to the extent of:
(i) the amount calculated in accordance with subsection (7); or
(ii) so much of the judgment debt as has not been satisfied by the supplier;
whichever is the lesser.
(9) Where in proceedings arising under subsection (1), a right conferred by subsection (4) is established against a linked credit provider, the consumer:
(a) shall not receive the benefit of the right unless judgment has been given against the supplier and linked credit provider, a written demand has been made on the supplier for satisfaction of the judgment and the demand has remained unsatisfied for not less than 30 days; and
(b) may receive the benefit only to the extent of:
(i) the amount calculated in accordance with subsection (7); or
(ii) so much of the judgment debt as has not been satisfied by the supplier;
whichever is the lesser.
(10) Unless the linked credit provider and supplier otherwise agree, the supplier is liable to the linked credit provider for the amount of a loss suffered by the linked credit provider, being an amount not exceeding the maximum amount of the linked credit provider’s liability under subsection (7) and, unless the court otherwise determines, the amount of costs (if any) reasonably incurred by the linked credit provider in defending the proceedings by reason of which the liability was incurred.
(11) Notwithstanding any other law, where, in proceedings arising under subsection (1), judgment is given against a supplier and a linked credit provider or against a linked credit provider for an amount of loss or damage, the court in which the proceedings are taken shall, on the application of the consumer, unless good cause is shown to the contrary, award interest to the consumer against the supplier and credit provider or against the credit provider, as the case may be, upon the whole or a part of the amount, from the time when the consumer became entitled to recover the amount until the date on which the judgment is given, at whichever of the following rates is the greater:
(a) where the amount payable by the consumer to the credit provider for the obtaining of credit in connection with the goods or services to which the proceedings relate may be calculated at a percentage rate per annum—that rate or, if more than one such rate may be calculated, the lower or lowest of those rates;
(b) 8% or such other rate as is prescribed.
(12) In determining whether good cause is shown against awarding interest under subsection (11) on the whole or part of an amount of loss or damage, the court shall take into account any payment made into court by the supplier or credit provider.
(13) Where a judgment given in proceedings arising under subsection (1) is enforced against a linked credit provider of a particular supplier, the credit provider is subrogated to the extent of the judgment so enforced to any rights that the consumer would have had but for the judgment against the supplier or any other person.
(14) In this section:
credit provider means a corporation providing, or proposing to provide, in the course of a business carried on by the corporation, credit to consumers in relation to the acquisition of goods or services.
linked credit provider, in relation to a supplier, 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;
(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;
(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit;
(c) whose forms of contract or 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 or applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.
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.
73A Continuing credit contract
(1) For the purposes of this section:
(a) a reference to an agreement includes a reference to an arrangement, understanding or course of dealing; and
(b) a person shall be deemed to agree with another person with respect to a matter if the first‑mentioned person has an agreement, arrangement or understanding with the other person, or is engaged in a course of dealing with the other person, with respect to the matter.
(2) Where:
(a) a person (in this section referred to as the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in respect of:
(i) payment for goods or services or cash supplied by the creditor to the consumer from time to time; or
(ii) payment by the creditor to a third person in respect of goods or services or cash supplied by that third person to the consumer from time to time; and
(b) the amounts owing to the creditor from time to time under the agreement are or are to be calculated on the basis that all amounts owing, and all payments made, by the consumer under or in respect of the agreement are entered in one or more accounts kept for the purpose of the agreement;
the agreement is, for the purposes of section 73, a continuing credit contract.
(3) Where the creditor agrees to make payments to a third person in respect of goods or services or cash supplied by that third person to the consumer, as mentioned in subparagraph (2)(a)(ii), then, for the purposes of this section, the creditor shall, in respect of any goods or services or cash so supplied, be deemed to have provided credit to the consumer to the extent of any payments made or to be made by the creditor to that third person.
For the purposes of section 73, 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.
74 Warranties in relation to the supply of services
(1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied.
(2) Where a corporation supplies services (other than services of a professional nature provided by a qualified architect or engineer) to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation any particular purpose for which the services are required or the result that he or she desires the services to achieve, there is an implied warranty that the services supplied under the contract for the supply of the services and any materials supplied in connexion with those services will be reasonably fit for that purpose or are of such a nature and quality that they might reasonably be expected to achieve that result, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him or her to rely, on the corporation’s skill or judgment.
(2A) If:
(a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and
(b) the law of a State or Territory is the proper law of the contract;
the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract.
(3) A reference in this section to services does not include a reference to services that are, or are to be, provided, granted or conferred 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.
Division 2A—Actions against manufacturers and importers of goods
(1) In this Division:
express warranty, in relation to goods, means an undertaking, assertion or representation in relation to:
(a) the quality, performance or characteristics of the goods;
(b) the provision of services that are or may at any time be required in respect of the goods;
(c) the supply of parts that are or may at any time be required for the goods; or
(d) 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;
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, the natural tendency of which is to induce persons to acquire the goods.
manufactured includes grown, extracted, produced, processed and assembled.
(2) In this Division:
(a) a reference to goods shall, unless the contrary intention appears, be read as a reference to goods of a kind ordinarily acquired for personal, domestic or household use or consumption;
(aa) a reference to a person who acquires goods from a consumer does not include a reference to a person who acquires goods for the purpose of re‑supply;
(b) a reference to the quality of goods includes a reference to the state or condition of the goods;
(c) a reference to antecedent negotiations in relation to the acquisition of goods by a consumer shall be read as a reference to any negotiations or arrangements conducted or made with the consumer by another person in the course of a business carried on by the other person whereby the consumer was induced to acquire the goods or which otherwise promoted the acquisition of the goods by the consumer; and
(d) a reference to the person by whom any antecedent negotiations were conducted shall be read as a reference to the person by whom the negotiations or arrangements concerned were conducted or made.
(3) If:
(a) a corporation holds itself out to the public as the manufacturer of goods;
(b) a corporation causes or permits the name of the corporation, a name by which the corporation carries on business or a brand or mark of the corporation to be applied to goods supplied by the corporation; or
(c) a corporation causes or permits another person, in connexion with the supply or possible supply of goods by that other person, or in connexion with the promotion by that other person by any means of the supply or use of goods, to hold out the corporation to the public as the manufacturer of the goods;
the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(4) If:
(a) goods are imported into
(b) at the
time of the importation the manufacturer of the goods does not have a place of
business in
the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(5) For the purposes of paragraph (3)(b):
(a) a name, brand or mark shall be deemed to be applied to goods if it:
(i) is woven in, impressed on, worked into or annexed or affixed to the goods; or
(ii) is applied to a covering, label, reel or thing in or with which the goods are supplied; and
(b) if the name of a corporation, a name in which a corporation carries on business or a brand or mark of a corporation is applied to goods, it shall be presumed, unless the contrary is established, that the corporation caused or permitted the name, brand or mark to be applied to the goods.
(6) The reference in subsection (5) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that subsection to a label includes a reference to a band or ticket.
(7) If goods are imported into
(8) For the purposes of this Division, goods shall be taken to be supplied to a consumer notwithstanding that, at the time of the supply, they are affixed to land or premises.
74B Actions in respect of unsuitable goods
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;
(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and
(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not reasonably fit for the purpose referred to in that subsection by reason of:
(i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation; or
(b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgment of the corporation.
74C Actions in respect of false descriptions
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer by description;
(c) the goods do not correspond with the description; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods do not correspond with the description;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply if the goods do not correspond with the description referred to in that subsection by reason of:
(a) an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(b) a cause independent of human control;
occurring after the goods have left the control of the corporation.
(3) A corporation is not liable to compensate a person for loss or damage suffered by the person by reason that goods do not correspond with a description unless the description was applied to the goods:
(a) by or on behalf of the corporation; or
(b) with the consent of the corporation, whether express or implied.
(4) If the goods referred to in subsection (1) are supplied to the consumer by reference to a sample as well as by description, it is not a defence to an action under this section that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
(5) A supply of goods is not prevented from being a supply by description for the purposes of subsection (1) by reason only that, being exposed for sale or hire, they are selected by the consumer.
74D Actions in respect of goods of unmerchantable quality
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are not of merchantable quality; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not of merchantable quality by reason of:
(i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation;
(b) as regards defects specifically drawn to the consumer’s attention before the making of the contract for the supply of the goods to the consumer; or
(c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
(a) any description applied to the goods by the corporation;
(b) the price received by the corporation for the goods (if relevant); and
(c) all the other relevant circumstances.
74E Actions in respect of non‑correspondence with samples etc.
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are supplied to the consumer by reference to a sample;
(d) the bulk of the goods does not correspond with the sample in quality or the goods have a defect, rendering them unmerchantable, that is not, or would not be, apparent on reasonable examination of the sample; and
(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the bulk does not correspond with the sample in quality or by reason that the goods have that defect;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the loss or damage by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply where:
(a) the sample is not supplied by the corporation;
(b) the supply by sample is made without the express or implied concurrence of the corporation; or
(c) the failure of the bulk of the goods to correspond with the sample in quality or the existence of the defect is due to:
(i) an act or default of any person (not being the corporation or a servant or agent of the corporation), or a cause independent of human control, occurring after the goods have left the control of the corporation; or
(ii) other circumstances that were beyond the control of the corporation and that it could not reasonably be expected to have foreseen.
74F Actions in respect of failure to provide facilities for repairs or parts
(1) Where:
(a) a corporation, in trade or commerce, supplies goods (otherwise than by way of sale by auction) manufactured by the corporation to a consumer; or
(b) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply and a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
and:
(c) at a time (in this section referred to as the relevant time) after the acquisition of the goods by the consumer:
(i) the goods require to be repaired but facilities for their repair are not reasonably available to the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer; or
(ii) a part is required for the goods but the part is not reasonably available to the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer;
(d) the corporation acted unreasonably in failing to ensure that facilities for the repair of the goods were, or that the part was, reasonably available to the consumer or that other person at the relevant time; and
(e) the consumer or that other person suffers loss or damage by reason of the failure of the corporation to ensure that facilities for the repair of the goods were, or that the part was, reasonably available to the consumer or that other person at the relevant time;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply where the corporation took reasonable action to ensure that the consumer acquiring the goods would be given notice at or before the time when he or she acquired the goods that:
(a) the corporation did not promise that facilities for the repair of the goods, or that parts for the goods, would be available; or
(b) the corporation did not promise that facilities for the repair of the goods, or that parts for the goods, would be available after a specified period, being a period that expired before the relevant time.
(3) Where the corporation took reasonable action to ensure that the consumer acquiring the goods would be given notice at or before the time when he or she acquired the goods that the corporation did not promise that:
(a) facilities for the repair of the goods, being facilities of a kind specified in the notice, would be available;
(b) parts for the goods, being parts of a kind specified in the notice, would be available; or
(c) facilities for the repair of the goods would be available at, or parts for the goods would be available from, a place or places specified in the notice;
the corporation is not liable to compensate the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer for loss or damage suffered by the consumer or that other person by reason of the failure of the corporation to ensure that facilities of the kind specified in the notice, or parts of the kind specified in the notice, were available, or that facilities for the repair of the goods were available at, or parts for the goods were available from, a place or places specified in the notice, as the case may be.
(4) In determining whether a corporation acted unreasonably in failing to ensure that facilities for the repair of goods were, or that a part was, reasonably available to a person at the relevant time, a court shall have regard to all the circumstances of the case, and in particular to the existence, at the relevant time, of circumstances that prevented those facilities or that part being so available, being circumstances beyond the control of the corporation.
74G Actions in respect of non‑compliance with express warranty
(1) Where:
(a) a corporation, in trade or commerce, supplies goods (otherwise than by way of sale by auction) manufactured by the corporation to a consumer; or
(b) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply and a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
and:
(c) the corporation fails to comply with an express warranty given or made by the corporation in relation to the goods; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason of the failure;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) For the purposes of any action instituted by a person against a corporation under this section, where:
(a) an undertaking, assertion or representation was given or made in connection with the supply of goods or in connection with the promotion by any means of the supply or use of goods; and
(b) the undertaking, assertion or representation would, if it had been given or made by the corporation or a person acting on its behalf, have constituted an express warranty in relation to the goods;
it shall be presumed that the undertaking, assertion or representation was given or made by the corporation or a person acting on its behalf unless the corporation proves that it did not give or make, and did not cause or permit the giving or making of, the undertaking, assertion or representation.
74H Right of seller to recover against manufacturer or importer
Where:
(a) a person (in this section referred to as the seller) is under a liability to another person (in this section referred to as the consumer) in respect of loss or damage suffered by the consumer as a result of a breach of a condition or warranty implied by a provision of Division 2 in a contract for the supply of goods (whether or not the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption) by the seller to the consumer; and
(b) a third person (in this section referred to as the manufacturer):
(i) is liable to compensate the consumer in respect of the same loss or damage by reason of a provision of this Division; or
(ii) in a case where the goods referred to in paragraph (a) are not of a kind ordinarily acquired for personal, domestic or household use or consumption—would, if the provisions of sections 74B, 74C, 74D and 74E applied in relation to those goods, be liable to compensate the consumer in respect of the same loss or damage by reason of any of those provisions;
the manufacturer is liable to indemnify the seller in respect of the liability of the seller to the consumer and the seller may, in respect of the manufacturer’s liability to indemnify the seller, institute an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the seller could have obtained if the liability of the manufacturer to indemnify the seller had arisen under a contract of indemnity made between the manufacturer and the seller.
74J Time for commencing actions
(1) Subject to this section, an action under a provision of this Division may be commenced at any time within 3 years after the day on which the cause of the action accrued.
(2) For the purposes of this section, a cause of action shall be deemed to have accrued:
(a) in the case of an action other than an action under section 74H, on the day on which the consumer or a person who acquired the goods from, or derived title to the goods through or under, the consumer first became aware, or ought reasonably to have become aware:
(i) in the case of an action under section 74B—that the goods were not reasonably fit for the purpose referred to in that section;
(ii) in the case of an action under section 74C—that the goods did not correspond with the description referred to in that section;
(iii) in the case of an action under section 74D—that the goods were not of merchantable quality;
(iv) in the case of an action under section 74E—that the bulk of the goods did not correspond with the sample in quality or the goods had the defect referred to in that section;
(v) in the case of an action under section 74F—that the goods required to be repaired or that the part was required for the goods, as the case may be; or
(vi) in the case of an action under section 74G—of the failure of the corporation to comply with the express warranty referred to in that section; or
(b) in the case of an action under section 74H, on:
(i) the day, or the first day, as the case may be, on which the seller referred to in that section made a payment in respect of, or otherwise discharged in whole or in part, the liability of that seller to the consumer referred to in that section; or
(ii) the day on which a proceeding was instituted by that consumer against that seller in respect of that liability or, if more than one such proceeding was instituted, the day on which the first such proceeding was instituted;
whichever was the earlier.
(3) In an action under a provision of this Division, it is a defence if the defendant proves that the action was not commenced within 10 years after the time of the first supply to a consumer of the goods to which the action relates.
Note: Part VIB restricts awards of compensation for death or personal injury, and sets out time limits for commencing actions for compensation for death or personal injury.
74K Application of Division not to be excluded or modified
(1) Any 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) that purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying, any liability of a person to compensate or indemnify another person that may arise under this Division, is void.
(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with that provision.
(3) Nothing in this section applies to a term of a contract referred to in subsection 74L(4).
74L Limitation in certain circumstances of liability of manufacturer to seller
(1) Notwithstanding section 74H but subject to this section, in the case of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that section of a manufacturer to a seller is limited to a liability to pay to the seller an amount equal to:
(a) the cost of replacing the goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired;
whichever is the lowest amount.
(2) Subsection (1) does not apply in relation to particular goods if the seller establishes that it is not fair or reasonable for the liability of the manufacturer in respect of those goods to be limited as mentioned in subsection (1).
(3) In determining for the purposes of subsection (2) whether or not it is fair or reasonable for the liability of a manufacturer to a seller in respect of goods to be limited as mentioned in subsection (1), a court shall have regard to all the circumstances of the case and, in particular, to:
(a) the availability of suitable alternative sources of supply of the goods;
(b) the availability of equivalent goods; and
(c) whether the goods were manufactured, processed or adapted to the special order of the seller.
(4) This section is subject to any term of a contract between the manufacturer and the seller imposing on the manufacturer a greater liability than the liability mentioned in subsection (1).
(5) In this section, the expressions manufacturer and seller have the same respective meanings as in section 74H.
74M The effect of Part VIB on this Division
This Division has effect subject to Part VIB.
75 Saving of other laws and remedies
(1) Except as provided by subsection (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Where an act or omission of a person is both an offence against section 79 and an offence under the law of a State or Territory and that person is convicted of either of those offences, he or she is not liable to be convicted of the other of those offences.
(3) Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.
(1) Where:
(a) a corporation supplies goods to a consumer in the course of a business; and
(b) there is a breach of a condition that is, by virtue of a provision of Division 2, implied in the contract for the supply of the goods;
the consumer is, subject to this section, entitled to rescind the contract by:
(c) causing to be served on the corporation a notice in writing signed by him or her giving particulars of the breach; or
(d) causing the goods to be returned to the corporation and giving to the corporation, either orally or in writing, particulars of the breach.
(2) Where a consumer purports to rescind under this section a contract for the supply of goods by a corporation, the purported rescission does not have any effect if:
(a) the notice is not served or the goods are not returned within a reasonable time after the consumer has had a reasonable opportunity of inspecting the goods;
(b) in the case of a rescission effected by service of a notice, after the delivery of the goods to the consumer but before the notice is served:
(i) the goods were disposed of by the consumer, were lost, or were destroyed otherwise than by reason of a defect in the goods;
(ii) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to prevent the goods from becoming unmerchantable; or
(iii) the goods were damaged by abnormal use; or
(c) in the case of a rescission effected by return of the goods, while the goods were in the possession of the consumer:
(i) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to prevent the goods from becoming unmerchantable; or
(ii) the goods were damaged by abnormal use.
(3) Where a contract for the supply of goods by a corporation to a consumer has been rescinded in accordance with this section:
(a) if the property in the goods had passed to the consumer before the notice of rescission was served on, or the goods were returned to, the corporation—the property in the goods re‑vests in the corporation upon the service of the notice or the return of the goods; and
(b) the consumer may recover from the corporation, as a debt, the amount or value of any consideration paid or provided by him or her for the goods.
(4) The right of rescission conferred by this section is in addition to, and not in derogation of, any other right or remedy under this Act or any other Act, any State Act, any law of a Territory or any rule of law.