Western Australia

Fair Trading Act 2010

Incorporating the amendments proposed

by the Fair Trading Amendment Bill 2021

(Bill No. 19-2)

page i [This compilation shows amendments proposed by Bill No. 19-2.]

Western Australia

Fair Trading Act 2010

Contents

Part 1 — Preliminary

1. Short title 2 2. Commencement 2 3. Object of Act 2

Part 2 — Interpretation and

application

Division 1 — General interpretation 4. Which interpretation Act applies to ACL (WA) 3 5. Application of s. 6-9 and 17 3 6. Terms used 3 7. Term used: consumer 4 8. Term used: services 5 9. Further provisions about interpretation 6

Division 2 — Application 10. Act binds Crown 8 11. Territorial application of Act 9 12. Concurrent operation of laws of other jurisdictions

not limited 10 13. No contracting out 10 14. Relationship with other Acts and rules of law 10 15. Inconsistencies with other enactments 11

Part 3 — The Australian Consumer

Law

Division 1 — Object and interpretation 16. Object of this Part 12 17. Terms used 12

Division 2 — Application of Australian

Consumer Law 18. Australian Consumer Law text 14 19. Application of Australian Consumer Law text 14 19A. Tabling amending laws 15 19B. Disallowance of amending laws 15 19C. Commencement of amending laws 16 19D. Amending laws enacted after 1 June 2021 but

before commencement day 17 19E. Tabling of amending law taken to be publication

for Standing Orders 17

Fair Trading Act 2010

Contents

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21. Certain instruments to be published, and may be

disallowed by Parliament 17 22. Term used in ACL (WA): regulator 18 23. ACL (WA), interpretation of 18 24. ACL (WA), application of 19

Division 3 — References to Australian

Consumer Law 25. References to Australian Consumer Law 19 26. References to Australian Consumer Law of other

jurisdictions 20

Division 4 — Application of Australian

Consumer Law to Crown 27. Division does not apply to Commonwealth 20 28. Application law of this jurisdiction binds Crown 20 29. Application law of other jurisdictions binds Crown 20 30. Crown not liable to pecuniary penalty or

prosecution 20

Division 5 — Miscellaneous 31. No doubling-up of criminal liabilities 21 32. Offences against ACL (WA) are crimes 21 33. Pecuniary penalty proceedings under ACL (WA)

s. 224, civil rules of evidence etc. apply 22 35. Sale of Goods Act 1895, inconsistency with certain

provisions of ACL (WA) 22

Division 6 — Transitional 37. Certain injunction proceedings pending at

1 Jan 2011 23 38. ACL (WA) Part 2-3 (unfair contract terms),

application of to contracts made on or after

1 Jan 2011 24 39. ACL (WA) Part 3-2 Div. 2 (unsolicited consumer

agreements), application of to contracts made

before 1 Jan 2011 etc. 24 40. ACL (WA) s. 101 (requests for itemised bills),

application of for services supplied before 1 Jan

2011 25 41. ACL (WA) s. 224(4)(c), interpretation of 25

Part 4 — Codes of practice

Division 1 — Preliminary 42. Outline of this Part 26 43. Term used: code of practice 26

Division 2 — Development and implementation

of codes of practice 44. Draft codes of practice, preparation of 26 45. Regulations prescribing code of practice 27 46. Interim code of practice, regulations may prescribe 27

Fair Trading Act 2010

Contents

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Division 3 — Enforcement of codes of practice 47. SAT’s powers to deal with contraventions of

prescribed code of practice 28 48. Commissioner may take or defend, or assume the

conduct or defence of, proceedings relating to

contravention of code of practice 29 49. Provisions for proceedings Commissioner

institutes, defends or assumes conduct or defence

of 30 50. No doubling-up of liabilities 31 51. Action taken for breach of code of practice doesn’t

preclude other civil action 31 52. Transitional provisions for codes of practice

prescribed before 1 Jan 2011 31 53. Transitional provisions for undertakings under

Fair Trading Act 1987 s. 44 32 54. Transitional provisions for contraventions of code

of practice before 1 Jan 2011 33

Part 5 — Administrative provisions

Division 1 — Commissioner 55. Commissioner, designation and title of 34 56. General functions of Commissioner 34 57A. Licensing and regulatory functions of

Commissioner 35 57. Warnings and information, Commissioner may

issue 36 58. Instituting, defending or assuming conduct or

defence of legal proceedings on behalf of

consumers or businesses 36 59. Provisions for proceedings Commissioner

institutes, defends or assumes conduct or defence

of 38 60. Delegation by Commissioner 39 61. Judicial notice of Commissioner’s signature etc. 40

Division 2 — Offence 62. Advertisements not to imply approval by consumer

affairs authority 40

Division 3 — Advisory committees

Subdivision 1 — Property Industry Advisory

Committee 63A. Committee established 42 63B. Membership 42 63C. Functions 42 63D. Procedure 43

Subdivision 2 — Motor Vehicle Industry Advisory

Committee 63E. Committee established 43

Fair Trading Act 2010

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63F. Membership 43 63G. Functions 43 63H. Procedure 44

Subdivision 3 — Consumer Advisory Committee 63I. Committee established 44 63J. Membership 44 63K. Functions 44 63L. Procedure 45

Subdivision 4 — Regulations prescribing committee

procedures, etc. 63M. Regulations 45

Part 6 — Investigation and

enforcement

Division 1 — Preliminary 63. Terms used 46 64A. Authorised persons cannot be public officers under

Criminal Investigation Act 2006 46

Division 2 — Investigators 64. Designating people as investigators 46 65. Certificate of authority of investigator 47 66. Certificate of authority to be produced on demand 47 67. Persons assisting investigators 47

Division 3 — General powers 68. Investigations and inquiries, Commissioner’s

powers to make 48 69. Investigations and inquiries, powers for 48 70. Interviews under s. 69(1)(a), conduct of 50 71. Warrant to enter premises or motor vehicle 50 72. Warrants wanted urgently, may be obtained by

telephone etc. 51 73. Warrants by telephone etc., further provisions for 52 74. Warrants, issue and effect of 53 75. Warrants, powers under to obtain access

information for computers etc. 54 76. Warrants, further powers under 55 77. Damage to equipment or data, compensation for 55 78. Warrants, execution and duration of 56 79. Seizing things 57 80. Seized things, copies of to be provided 58 81. Seized things, access to by owner 58 82. Seized things, return of 58 83. Seizure, SAT may review 59 84. Seized things, forfeiture of 59 85. Forfeited things, dealing with 60 86. Privilege against self-incrimination doesn’t apply 60 87. Information obtained, use of etc. 61

Fair Trading Act 2010

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Division 4A — Specific powers for enforcement

of licensing and regulatory provisions 88A. Terms used 61 88B. Investigations and inquiries for licensing and

regulatory purposes, Commissioner’s powers to

make 61 88C. Authorised persons’ powers for this Division 62 88D. Police assistance with investigations and inquiries 62 88E. Compliance checks at regulated person’s business

premises, powers for 63

Division 4 — Offences 88. Failing to cooperate with investigation 64 89. Obstructing authorised person 65

Part 7 — Criminal and civil

proceedings

Division 1 — Preliminary 90. Term used: person involved in a contravention of a

provision of this Act 66

Division 2 — Criminal proceedings 91. Time limit for commencing proceedings 66 92. Who may institute criminal proceedings 66 93. Court of summary jurisdiction to be constituted by

magistrate 67 94. Courts’ other powers in criminal proceedings 67 95. Vicarious liability of directors, employers etc. 67 96. Defence: reasonable mistake of fact 69 97. Defences: accident, act or default of another etc. 70 98. Defence: publication of advertisements in ordinary

course of business 70

Division 3 — Civil proceedings 99. Injunctions to prevent or stop contraventions of

Act 71 100. Injunctions to prevent etc. other contraventions 71 101. Injunctions, general provisions about 72 102. Interim injunctions 73 103. Final injunction may be granted if parties consent 73 104. Injunction may be rescinded or varied 73 105. Supreme and District Courts’ other powers in

Part 7 proceedings 73 106. Supreme and District Courts’ powers to prohibit

payments, transfers of property etc. 75 107. Contravening s. 106 order, offence 77 108. Findings of fact or admissions in certain

proceedings to be evidence in others 78

Fair Trading Act 2010

Contents

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Division 4 — Further provisions relating to

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

111 78 110. State of mind and conduct of body corporate,

establishing 78 111. State of mind and conduct of principal (not a body

corporate), establishing 79

Part 8 — Miscellaneous

112. Personal information obtained officially, when

may be divulged etc. 81 113. Information obtained officially may be used for

certain other purposes and legislation 82 114. Protection from liability for wrongdoing 82 115. Protection from liability for publishing official

statements 83 116. Regulations 83

Part 9 — Transitional provisions

117. Regulations for transitional matters 85 118. Fair Trading (Product Information Standard)

Regulation 2005 Part 4 (builders plates for

recreational vessels), continuation of 86 119. Orders made before 1 Jan 2011 recalling defective

goods etc., effect of 86 120. Delegations made before 1 Jan 2011, effect of 86 121. Interpretation Act 1984, application of to expiring

Acts 86

Schedule 1 — Acts that override the

Australian Consumer Law (WA)

Part 3-3

Schedule 2 — Registration Acts

Notes

Compilation table 89 Uncommenced provisions table 90 Other notes 90

Note — Australian Consumer Law

(WA) text

Chapter 1 — Introduction

1. Application of this Schedule 91 2. Definitions 91 3. Meaning of consumer 104

Fair Trading Act 2010

Contents

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4. Misleading representations with respect to future

matters 107 5. When donations are treated as supplies or

acquisitions 108 6. Related bodies corporate 108 7. Meaning of manufacturer 108 8. Goods affixed to land or premises 109 9. Meaning of safety defect in relation to goods 109 10. Asserting a right to payment 110 11. References to acquisition, supply and re-supply 111 12. Application of Schedule in relation to leases and

licences of land and buildings 112 13. Loss or damage to include injury 112 14. Meaning of continuing credit contract 112 15. Contraventions of this Schedule 113 16. Severability 113 17. References to provisions in this Schedule 113

Chapter 2 — General protections

Part 2-1Misleading or deceptive

conduct

18. Misleading or deceptive conduct 114 19. Application of this Part to information providers 114

Part 2-2 — Unconscionable conduct

20. Unconscionable conduct within the meaning of the

unwritten law 115 21. Unconscionable conduct in connection with goods

or services 116 22. Matters the court may have regard to for the

purposes of section 21 117 22A. Presumptions relating to whether representations

are misleading 119

Part 2-3 — Unfair contract terms

23. Unfair terms of consumer contracts and small

business contracts 120 24. Meaning of unfair 120 25. Examples of unfair terms 121 26. Terms that define main subject matter of consumer

contracts or small business contracts etc. are

unaffected 122 27. Standard form contracts 123 28. Contracts to which this Part does not apply 123

Fair Trading Act 2010

Contents

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Chapter 3 — Specific protections

Part 3-1 — Unfair practices

Division 1 — False or misleading

representations etc. 29. False or misleading representations about goods or

services 124 30. False or misleading representations about sale etc.

of land 125 31. Misleading conduct relating to employment 126 32. Offering rebates, gifts, prizes etc. 126 33. Misleading conduct as to the nature etc. of goods 127 34. Misleading conduct as to the nature etc. of services 128 35. Bait advertising 128 36. Wrongly accepting payment 128 37. Misleading representations about certain business

activities 130 38. Application of provisions of this Division to

information providers 130

Division 2 — Unsolicited supplies 39. Unsolicited cards etc. 131 40. Assertion of right to payment for unsolicited goods

or services 133 41. Liability etc. of recipient for unsolicited goods 133 42. Liability of recipient for unsolicited services 135 43. Assertion of right to payment for unauthorised

entries or advertisements 135

Division 3 — Pyramid schemes 44. Participation in pyramid schemes 136 45. Meaning of pyramid scheme 137 46. Marketing schemes as pyramid schemes 138

Division 4 — Pricing 47. Multiple pricing 139 48. Single price to be specified in certain

circumstances 140

Division 5 — Other unfair practices 49. Referral selling 143 50. Harassment and coercion 143

Part 3-2Consumer transactions

Division 1 — Consumer guarantees

Subdivision A — Guarantees relating to the supply

of goods 51. Guarantee as to title 144 52. Guarantee as to undisturbed possession 144 53. Guarantee as to undisclosed securities etc. 145 54. Guarantee as to acceptable quality 145

Fair Trading Act 2010

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55. Guarantee as to fitness for any disclosed purpose

etc. 147 56. Guarantee relating to the supply of goods by

description 148 57. Guarantees relating to the supply of goods by

sample or demonstration model 148 58. Guarantee as to repairs and spare parts 148 59. Guarantee as to express warranties 149

Subdivision B — Guarantees relating to the supply

of services 60. Guarantee as to due care and skill 149 61. Guarantees as to fitness for a particular purpose

etc. 150 62. Guarantee as to reasonable time for supply 150 63. Services to which this Subdivision does not apply 151

Subdivision C — Guarantees not to be excluded etc.

by contract 64. Guarantees not to be excluded etc. by contract 151 64A. Limitation of liability for failures to comply with

guarantees 151

Subdivision D — Miscellaneous 65. Application of this Division to supplies of gas,

electricity and telecommunications 153 66. Display notices 153 67. Conflict of laws 154 68. Convention on Contracts for the International Sale

of Goods 154

Division 2 — Unsolicited consumer agreements

Subdivision A — Introduction 69. Meaning of unsolicited consumer agreement 154 70. Presumption that agreements are unsolicited

consumer agreements 156 71. Meaning of dealer 156 72. Meaning of negotiation 156

Subdivision B — Negotiating unsolicited consumer

agreements 73. Permitted hours for negotiating an unsolicited

consumer agreement 157 74. Disclosing purpose and identity 157 75. Ceasing to negotiate on request 157 76. Informing person of termination period etc. 158 77. Liability of suppliers for contraventions by dealers 159

Subdivision C — Requirements for unsolicited

consumer agreements etc. 78. Requirement to give document to the consumer 159 79. Requirements for all unsolicited consumer

agreements etc. 160

Fair Trading Act 2010

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80. Additional requirements for unsolicited consumer

agreements not negotiated by telephone 161 81. Requirements for amendments of unsolicited

consumer agreements 161

Subdivision D — Terminating unsolicited

consumer agreements 82. Terminating an unsolicited consumer agreement

during the termination period 161 83. Effect of termination 163 84. Obligations of suppliers on termination 164 85. Obligations and rights of consumers on termination 164 86. Prohibition on supplies etc. 166 87. Repayment of payments received after termination 166 88. Prohibition on recovering amounts after

termination 167

Subdivision E — Miscellaneous 89. Certain provisions of unsolicited consumer

agreements void 168 90. Waiver of rights 168 91. Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc. 168 92. Application of this Division to supplies to third

parties 169 93. Effect of contravening this Division 169 94. Regulations may limit the application of this

Division 169 95. Application of this Division to certain conduct

covered by the Corporations Act 169

Division 3 — Lay-by agreements 96. Lay-by agreements must be in writing etc. 170 97. Termination of lay-by agreements by consumers 170 98. Termination of lay-by agreements by suppliers 171 99. Effect of termination 171

Division 3A—Gift cards

Subdivision A—Introduction 99A. Meaning of gift card 172

Subdivision B—Requirements relating to gift cards 99B. Gift cards to be redeemable for at least 3 years 172 99C. When gift card ceases to be redeemable to appear

prominently on gift card 172 99D. Terms and conditions not to allow post-supply fees 173 99E. Post-supply fees not to be demanded or received 173 99F. Certain terms and conditions of gift card void 173

Subdivision C—Miscellaneous 99G. Regulations may limit application of this Division 174

Division 4 — Miscellaneous 100. Supplier must provide proof of transaction etc. 174

Fair Trading Act 2010

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101. Consumer may request an itemised bill 175 102. Prescribed requirements for warranties against

defects 176 103. Repairers must comply with prescribed

requirements 177

Part 3-3 Safety of consumer goods

and product related services

Division 1 — Safety standards 104. Making safety standards for consumer goods and

product related services 177 105. Declaring safety standards for consumer goods and

product related services 178 106. Supplying etc. consumer goods that do not comply

with safety standards 178 107. Supplying etc. product related services that do not

comply with safety standards 180 108. Requirement to nominate a safety standard 181

Division 2 — Bans on consumer goods and

product related services

Subdivision A — Interim bans 109. Interim bans on consumer goods or product related

services that will or may cause injury to any person

etc. 181 110. Places in which interim bans apply 182 111. Ban period for interim bans 182 112. Interaction of multiple interim bans 183 113. Revocation of interim bans 184

Subdivision B — Permanent bans 114. Permanent bans on consumer goods or product

related services 184 115. Places in which permanent bans apply 185 116. When permanent bans come into force 185 117. Revocation of permanent bans 185

Subdivision C — Compliance with interim bans and

permanent bans 118. Supplying etc. consumer goods covered by a ban 185 119. Supplying etc. product related services covered by

a ban 187

Subdivision D — Temporary exemption from

mutual recognition principles 120. Temporary exemption under the Trans-Tasman

Mutual Recognition Act 1997 187 121. Temporary exemption under the Mutual

Recognition Act 1992 188

Fair Trading Act 2010

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Division 3 — Recall of consumer goods

Subdivision A — Compulsory recall of consumer

goods 122. Compulsory recall of consumer goods 188 123. Contents of a recall notice 189 124. Obligations of a supplier in relation to a recall

notice 190 125. Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall 190 126. Interaction of multiple recall notices 191 127. Compliance with recall notices 191

Subdivision B — Voluntary recall of consumer goods 128. Notification requirements for a voluntary recall of

consumer goods 192

Division 4 — Safety warning notices 129. Safety warning notices about consumer goods and

product related services 194 130. Announcement of the results of an investigation

etc. 194

Division 5 — Consumer goods, or product

related services, associated with death or

serious injury or illness 131. Suppliers to report consumer goods associated with

the death or serious injury or illness of any person 196 132. Suppliers to report product related services

associated with the death or serious injury or

illness of any person 197 132A. Confidentiality of notices given under this Division 199

Division 6 — Miscellaneous 133. Liability under a contract of insurance 200

Part 3-4Information standards

134. Making information standards for goods and

services 201 135. Declaring information standards for goods and

services 201 136. Supplying etc. goods that do not comply with

information standards 202 137. Supplying etc. services that do not comply with

information standards 203 137A. Safe harbour for complying with information

standards about free range eggs 204

Fair Trading Act 2010

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Part 3-5 — Liability of

manufacturers for goods with

safety defects

Division 1 — Actions against manufacturers for

goods with safety defects 138. Liability for loss or damage suffered by an injured

individual 204 139. Liability for loss or damage suffered by a person

other than an injured individual 205 140. Liability for loss or damage suffered by a person if

other goods are destroyed or damaged 205 141. Liability for loss or damage suffered by a person if

land, buildings or fixtures are destroyed or

damaged 206 142. Defences to defective goods actions 206

Division 2 — Defective goods actions 143. Time for commencing defective goods actions 207 144. Liability joint and several 207 145. Survival of actions 207 146. No defective goods action where workers’

compensation law etc. applies 207 147. Unidentified manufacturer 208 148. Commonwealth liability for goods that are

defective only because of compliance with

Commonwealth mandatory standard 208 149. Representative actions by the regulator 209

Division 3 — Miscellaneous 150. Application of all or any provisions of this Part etc.

not to be excluded or modified 209

Chapter 4 — Offences

Part 4-1 — Offences relating to

unfair practices

Division 1False or misleading

representations etc. 151. False or misleading representations about goods or

services 209 152. False or misleading representations about sale etc.

of land 211 153. Misleading conduct relating to employment 213 154. Offering rebates, gifts, prizes etc. 213 155. Misleading conduct as to the nature etc. of goods 215 156. Misleading conduct as to the nature etc. of services 216 157. Bait advertising 216 158. Wrongly accepting payment 218

Fair Trading Act 2010

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159. Misleading representations about certain business

activities 220 160. Application of provisions of this Division to

information providers 221

Division 2 — Unsolicited supplies 161. Unsolicited cards etc. 222 162. Assertion of right to payment for unsolicited goods

or services 223 163. Assertion of right to payment for unauthorised

entries or advertisements 224

Division 3Pyramid schemes 164. Participation in pyramid schemes 226

Division 4Pricing 165. Multiple pricing 227 166. Single price to be specified in certain

circumstances 227

Division 5Other unfair practices 167. Referral selling 229 168. Harassment and coercion 230

Part 4-2 — Offences relating to

consumer transactions

Division 1Consumer guarantees 169. Display notices 232

Division 2 — Unsolicited consumer agreements

Subdivision A — Negotiating unsolicited consumer

agreements 170. Permitted hours for negotiating an unsolicited

consumer agreement 232 171. Disclosing purpose and identity 233 172. Ceasing to negotiate on request 233 173. Informing person of termination period etc. 234

Subdivision B — Requirements for unsolicited

consumer agreements etc. 174. Requirement to give document to the consumer 235 175. Requirements for all unsolicited consumer

agreements etc. 236 176. Additional requirements for unsolicited consumer

agreements not negotiated by telephone 237 177. Requirements for amendments of unsolicited

consumer agreements 238

Subdivision C — Terminating unsolicited consumer

agreements 178. Obligations of suppliers on termination 238 179. Prohibition on supplies etc. 238 180. Repayment of payments received after termination 239

Fair Trading Act 2010

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181. Prohibition on recovering amounts after

termination 240

Subdivision D — Miscellaneous 182. Certain provisions of unsolicited consumer

agreements void 240 183. Waiver of rights 241 184. Application of this Division to persons to whom

rights of consumers and suppliers are assigned etc. 241 185. Application of this Division to supplies to third

parties 241 186. Regulations may limit the application of this

Division 241 187. Application of this Division to certain conduct

covered by the Corporations Act 242

Division 3 — Lay-by agreements 188. Lay-by agreements must be in writing etc. 242 189. Termination charges 242 190. Termination of lay-by agreements by suppliers 243 191. Refund of amounts 243

Division 3A—Gift cards 191A. Gift cards to be redeemable for at least 3 years 244 191B. When gift card ceases to be redeemable to appear

prominently on gift card 244 191C. Terms and conditions not to allow post-supply fees 245 191D. Post-supply fees not to be demanded or received 245 191E. Regulations may limit the application of this

Division 245

Division 4 — Miscellaneous 192. Prescribed requirements for warranties against

defects 245 193. Repairers must comply with prescribed

requirements 246

Part 4-3Offences relating to safety

of consumer goods and product

related services

Division 1Safety standards 194. Supplying etc. consumer goods that do not comply

with safety standards 246 195. Supplying etc. product related services that do not

comply with safety standards 248 196. Requirement to nominate a safety standard 249

Division 2Bans on consumer goods and

product related services 197. Supplying etc. consumer goods covered by a ban 249 198. Supplying etc. product related services covered by

a ban 250

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Division 3 — Recall of consumer goods 199. Compliance with recall orders 251 200. Notification by persons who supply consumer

goods outside Australia if there is compulsory

recall 252 201. Notification requirements for a voluntary recall of

consumer goods 252

Division 4Consumer goods, or product

related services, associated with death or

serious injury or illness 202. Suppliers to report consumer goods etc. associated

with the death or serious injury or illness of any

person 253

Part 4-4 — Offences relating to

information standards

203. Supplying etc. goods that do not comply with

information standards 253 204. Supplying etc. services that do not comply with

information standards 255

Part 4-5 — Offences relating to

substantiation notices

205. Compliance with substantiation notices 256 206. False or misleading information etc. 256

Part 4-6 — Defences

207. Reasonable mistake of fact 257 208. Act or default of another person etc. 257 209. Publication of advertisements in the ordinary

course of business 258 210. Supplying goods acquired for the purpose of

re-supply 258 211. Supplying services acquired for the purpose of

re-supply 259

Part 4-7 — Miscellaneous

212. Prosecutions to be commenced within 3 years 260 213. Preference must be given to compensation for

victims 260 214. Penalties for contraventions of the same nature etc. 261 215. Penalties for previous contraventions of the same

nature etc. 262 216. Granting of injunctions etc. 262 217. Criminal proceedings not to be brought for

contraventions of Chapter 2 or 3 262

Fair Trading Act 2010

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Chapter 5 — Enforcement and

remedies

Part 5-1Enforcement

Division 1Undertakings 218. Regulator may accept undertakings 263

Division 2Substantiation notices 219. Regulator may require claims to be substantiated

etc. 264 220. Extending periods for complying with

substantiation notices 265 221. Compliance with substantiation notices 265 222. False or misleading information etc. 266

Division 3Public warning notices 223. Regulator may issue a public warning notice 266

Part 5-2Remedies

Division 1Pecuniary penalties 224. Pecuniary penalties 267 225. Pecuniary penalties and offences 272 226. Defence 273 227. Preference must be given to compensation for

victims 273 228. Civil action for recovery of pecuniary penalties 274 229. Indemnification of officers 274 230. Certain indemnities not authorised and certain

documents void 274

Division 2Injunctions 232. Injunctions 274 233. Consent injunctions 276 234. Interim injunctions 276 235. Variation and discharge of injunctions 277

Division 3Damages 236. Actions for damages 277

Division 4Compensation orders etc. for

injured persons and orders for non-party

consumers

Subdivision A — Compensation orders etc. for

injured persons 237. Compensation orders etc. on application by an

injured person or the regulator 277 238. Compensation orders etc. arising out of other

proceedings 278

Subdivision B — Orders for non-party consumers 239. Orders to redress etc. loss or damage suffered by

non-party consumers 278

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240. Determining whether to make a redress order etc.

for non-party consumers 280 241. When a non-party consumer is bound by a redress

order etc. 280

Subdivision C — Miscellaneous 242. Applications for orders 281 243. Kinds of orders that may be made 281 244. Power of a court to make orders 282 245. Interaction with other provisions 282

Division 5 — Other remedies 246. Non-punitive orders 282 247. Adverse publicity orders 284 248. Order disqualifying a person from managing

corporations 284 249. Privilege against exposure to penalty or forfeiture

— disqualification from managing corporations 285 250. Declarations relating to consumer contracts and

small business contracts 286

Division 6Defences 251. Publication of advertisement in the ordinary course

of business 286 252. Supplying consumer goods for the purpose of

re-supply 287 253. Supplying product related services for the purpose

of re-supply 288

Part 5-3Country of origin

representations

254. Overview 289 255. Country of origin representations do not

contravene certain provisions 289 258. Proceedings relating to false, misleading or

deceptive conduct or representations 291

Part 5-4Remedies relating to

guarantees

Division 1Action against suppliers

Subdivision A — Action against suppliers of goods 259. Action against suppliers of goods 291 260. When a failure to comply with a guarantee is a

major failure 292 261. How suppliers may remedy a failure to comply

with a guarantee 293 262. When consumers are not entitled to reject goods 293 263. Consequences of rejecting goods 294 264. Replaced goods 295 265. Termination of contracts for the supply of services

that are connected with rejected goods 295

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266. Rights of gift recipients 296

Subdivision B — Action against suppliers of services 267. Action against suppliers of services 296 268. When a failure to comply with a guarantee is a

major failure 297 269. Termination of contracts for the supply of services 298 270. Termination of contracts for the supply of goods

that are connected with terminated services 298

Division 2Action for damages against

manufacturers of goods 271. Action for damages against manufacturers of

goods 299 272. Damages that may be recovered by action against

manufacturers of goods 301 273. Time limit for actions against manufacturers of

goods 301

Division 3Miscellaneous 274. Indemnification of suppliers by manufacturers 301 275. Limitation of liability etc. 302 276. This Part not to be excluded etc. by contract 303 276A. Limitation in certain circumstances of liability of

manufacturer to seller 303 277. Representative actions by the regulator 304

Part 5-5Liability of suppliers and

credit providers

Division 1Linked credit contracts 278. Liability of suppliers and linked credit providers

relating to linked credit contracts 304 279. Action by consumer to recover amount of loss or

damage 305 280. Cases where a linked credit provider is not liable 306 281. Amount of liability of linked credit providers 307 282. Counter-claims and offsets 308 283. Enforcement of judgments etc. 308 284. Award of interest to consumers 310 285. Liability of suppliers to linked credit providers,

and of linked credit providers to suppliers 310 286. Joint liability proceedings and recovery under

section 135 of the National Credit Code 311

Division 2Non-linked credit contracts 287. Liability of suppliers and credit providers relating

to non-linked credit contracts 312

Fair Trading Act 2010

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Chapter 6—Application and

transitional provisions

Part 1—Application and transitional

provisions relating to the

Consumer Credit Legislation

Amendment (Enhancements) Act

2012

288. Application of amendments relating to lay-by

agreements 313 289. Application of amendment relating to repairs 313 290. Saving of regulations relating to repairs 313

Part 1A—Application provision

relating to the Treasury

Legislation Amendment (Small

Business and Unfair Contract

Terms) Act 2015

290A. Application 313

Part 2—Application and transitional

provisions relating to the

Competition and Consumer

Amendment (Competition Policy

Review) Act 2017

291. Application of amendments relating to

confidentiality of notices 314 292. Application of amendments relating to prohibition

on supplies 314

Part 3—Application provision

relating to the Treasury Laws

Amendment (2018 Measures

No. 3) Act 2018

295. Application of amendments 315

Part 4—Application provisions

relating to the Treasury Laws

Amendment (Australian

Consumer Law Review) Act 2018

296. Application—listed public companies 315 297. Application—unsolicited supplies 315 298. Application—unsolicited consumer agreements 315 299. Application—single price 315

Fair Trading Act 2010

Contents

page xxi [This compilation shows amendments proposed by Bill No. 19-2.]

300. Application—non-punitive orders 315 301. Application—guarantees relating to the supply of

services 316

Part 5—Application and transitional

provisions relating to the

Treasury Laws Amendment (Gift

Cards) Act 2018

302. Application of amendments relating to gift cards 316

page 1 [This compilation shows amendments proposed by Bill No. 19-2.]

Western Australia

Fair Trading Act 2010

An Act to —

promote and encourage fair trading practices and a competitive

and fair market, and protect the interests of consumers, by

applying the Australian Consumer Law (with modifications) as a

law of Western Australia, and providing for codes of practice;

and

provide for the powers and functions of a Commissioner,

including powers to carry out investigations into alleged

breaches of this Act; and

provide for the repeal of the Consumer Affairs Act 1971, Fair

Trading Act 1987 and Door to Door Trading Act 1987; and

make consequential amendments to various Acts 1,

and for related purposes.

Fair Trading Act 2010

Part 1 Preliminary

s. 1

page 2 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 1 — Preliminary

1. Short title

This is the Fair Trading Act 2010.

2. Commencement

This Act comes into operation as follows —

(a) sections 1 and 2 — on the day on which this Act

receives the Royal Assent;

(b) the rest of the Act — on a day fixed by proclamation,

and different days may be fixed for different provisions.

3. Object of Act

The object of this Act is to improve consumer well-being

through consumer empowerment and protection, to foster

effective competition, and to enable the confident participation

of consumers in markets in which both consumers and suppliers

trade fairly.

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 4

page 3 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2 — Interpretation and application

Division 1 — General interpretation

4. Which interpretation Act applies to ACL (WA)

Section 23 deals with the application of the Acts Interpretation

Act 1901 (Commonwealth) and the Interpretation Act 1984 of

Western Australia to the Australian Consumer Law (WA).

5. Application of s. 6-9 and 17

(1) Sections 6 to 9 apply to this Act other than Part 3 and the

Australian Consumer Law (WA).

(2) Section 17 applies to the interpretation of terms used in Part 3

and the Australian Consumer Law (WA).

6. Terms used

In this Act (other than Part 3 and the Australian Consumer

Law (WA)) —

acquire includes —

(a) in relation to goods — acquire by purchase or exchange

or by taking on lease, on hire or on hire-purchase; and

(b) in relation to services — accept; and

(c) in relation to an interest in land — acquire by purchase

or exchange or by taking on lease, or in any other

manner in which an interest in land may be acquired for

valuable consideration;

Australian Consumer Law (WA) has the meaning given in

section 17;

business includes —

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

(b) a trade or profession;

Commissioner means the person for the time being designated

as the Commissioner under section 55;

consumer has the meaning given in section 7;

Department means the department of the Public Service

principally assisting the Minister in the administration of this

Act;

disposal, in relation to an interest in land, means disposal by

sale, exchange or lease or by any other method by which an

interest in land may be disposed of for valuable consideration;

Fair Trading Act 2010

Part 2 Interpretation and application

Division 1 General interpretation

s. 7

page 4 [This compilation shows amendments proposed by Bill No. 19-2.]

document has the meaning given in the Australian Consumer

Law (WA) section 2(1);

goods has the meaning given in the Australian Consumer

Law (WA) section 2(1);

interest has the meaning given in the Australian Consumer

Law (WA) section 2(1);

provision, in relation to an understanding, means any matter

forming part of the understanding;

re-supply, in relation to goods acquired from a person,

includes —

(a) a supply of the goods to another person in an altered

form or condition; and

(b) a supply to another person of goods in which the

first-mentioned goods have been incorporated;

services has the meaning given in section 8;

supplier means a person who, in the course of business, supplies

goods or services;

supply includes —

(a) in relation to goods —

(i) supply (including re-supply) by way of sale,

exchange, lease, hire or hire-purchase; and

(ii) exhibit, expose or have in possession for the

purpose of sale, exchange, lease, hire or

hire-purchase or for any purpose of

advertisement, manufacture or trade;

and

(b) in relation to services — provide, grant or render for

valuable consideration; and

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

promotional purposes;

trade or commerce includes any business or professional

activity (whether or not carried on for profit).

7. Term used: consumer

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

Law (WA)) —

consumer means —

(a) a person who purchases or takes on hire or lease, or is a

potential purchaser or hirer or lessee of, or borrows

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 8

page 5 [This compilation shows amendments proposed by Bill No. 19-2.]

money for the purpose of purchasing, goods otherwise

than for resale or letting on hire or leasing; or

(b) a person who uses or is a potential user of, or borrows

money for the purpose of using, any service rendered for

fee or reward; or

(c) a person who purchases or is the potential purchaser of,

or borrows money for the purpose of purchasing, an

estate or interest in any land or building otherwise than

for resale, letting or leasing; or

(d) a person who becomes a tenant or lessee of, or is a

potential tenant or lessee of, any land or building or part

of a building otherwise than for assignment or

underletting.

(2) However, a person who carries on a trade or business is not a

consumer for the purposes of subsection (1) in respect of or in

relation to —

(a) goods purchased or taken on hire or lease by that person,

or of which that person is a potential purchaser, hirer or

lessee, in the course of or for the purpose of the carrying

on of that trade or business;

(b) a service used by that person, or of which the person is a

potential user, in the course of or for the purpose of the

carrying on of that trade or business;

(c) an estate or interest in land or a building purchased by

that person, or of which the person is a potential

purchaser, in the course of or for the purpose of the

carrying on of that trade or business;

(d) any land or building or part of a building of which the

person becomes the tenant or lessee, or is a potential

tenant or lessee, in the course of or for the purpose of the

carrying on of that trade or business.

(3) A person who carries on an agricultural, apicultural, pastoral,

horticultural, orcharding, viticultural or other farming

undertaking does not carry on a trade or business for the

purposes of subsection (2).

8. Term used: services

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

Law (WA)) —

services includes any rights (including rights in relation to, and

interests in, real or personal property), benefits, privileges or

Fair Trading Act 2010

Part 2 Interpretation and application

Division 1 General interpretation

s. 9

page 6 [This compilation shows amendments proposed by Bill No. 19-2.]

facilities that are, or are to be, provided, granted or conferred in

trade or commerce.

(2) Without limiting the generality of subsection (1), the definition

of services includes the rights, benefits, privileges and facilities

that are, or are to be, provided, granted or conferred under —

(a) a contract for or in relation to —

(i) the performance of work (including work of a

professional nature), whether with or without the

supply of goods; or

(ii) the provision of gas or electricity or the provision

of any other form of energy; or

(iii) the provision for reward of lodging or

accommodation; or

(iv) the provision, or making available for use, of

facilities for amusement, entertainment,

recreation or instruction; or

(v) the conferring of rights, benefits or privileges for

which remuneration is payable in the form of a

royalty, tribute, levy or similar exaction;

or

(b) a contract of insurance; or

(c) a contract between a banker and a customer of the

banker entered into in the course of the carrying on by

the banker of the business of banking; or

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

(3) The definition of services does not include rights or benefits

being the supply of goods or the performance of work under a

contract of service.

(4) Legal services as defined in the Legal Profession Uniform

Law (WA) section 6(1) are not services for the purposes of this

section.

[Section 8 amended: No. 9 of 2022 s. 424.]

9. Further provisions about interpretation

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

Law (WA)), unless the contrary intention appears —

(a) a reference to the supply or acquisition of goods

includes a reference to agreeing to supply or acquire

goods; and

Fair Trading Act 2010

Interpretation and application Part 2

General interpretation Division 1

s. 9

page 7 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a reference to the acquisition of goods includes a

reference to the acquisition of property in, or rights in

relation to, goods upon a supply of the goods; and

(c) a reference to the supply or acquisition of services

includes a reference to agreeing to supply or acquire

services; and

(d) a reference to the supply or acquisition of goods

includes a reference to the supply or acquisition of

goods together with other property or services, or both;

and

(e) a reference to the supply or acquisition of services

includes a reference to the supply or acquisition of

services together with goods or other property or other

services; and

(f) a reference to the disposal or acquisition of an interest in

land includes a reference to the disposal or acquisition of

such an interest together with goods or services; and

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

goods and services; and

(h) a reference to the disposal or acquisition of an interest in

land includes a reference to agreeing to dispose of or

acquire such an interest, whether or not the agreement is

in writing or evidenced by writing.

(2) For the purposes of this Act (other than Part 3 and the

Australian Consumer Law (WA)) —

(a) the obtaining of credit by a person in connection with

the acquisition of goods or services by the person is an

acquisition by the person of services; and

(b) any amount by which the price of the goods or services

is increased because credit was obtained is the price of

the services represented by the obtaining of credit.

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

Law (WA)) —

(a) a reference to engaging in conduct is to be read as a

reference to doing or refusing to do any act, including —

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

of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision

of, an understanding;

and

Fair Trading Act 2010

Part 2 Interpretation and application

Division 2 Application

s. 10

page 8 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a reference to conduct, when that expression is used as a

noun otherwise than as mentioned in paragraph (a), is to

be read as a reference to the doing of or the refusing to

do any act, including —

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

of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a provision

of, an understanding;

and

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

(i) a reference to refraining (otherwise than

inadvertently) from doing the act; and

(ii) a reference to making it known that the act will

not be done;

and

(d) a reference to a person offering to do an act, or to do an

act on a particular condition, includes a reference to the

person making known a willingness to accept

applications, offers or proposals for the person to do the

act or to do that act on the condition.

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

Law (WA)) —

(a) a reference to loss or damage, other than a reference to

the amount of any loss or damage, includes a reference

to injury; and

(b) a reference to the amount of any loss or damage includes

a reference to damages in respect of an injury.

(5) In this Act (other than Part 3 and the Australian Consumer

Law (WA)), a reference to the making of a representation

includes a reference to the publishing of a statement.

Division 2 — Application

10. Act binds Crown

(1) This Act binds the Crown not only in right of Western Australia

but also, so far as the legislative power of Parliament permits,

the Crown in all its other capacities.

(2) This Act applies to and in respect of the Crown in any of its

capacities to the same extent as if the Crown were, in that

capacity, a body corporate.

Fair Trading Act 2010

Interpretation and application Part 2

Application Division 2

s. 11

page 9 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) Nothing in this Act makes the Crown in any capacity liable to

be prosecuted for an offence.

(4) The protection in subsection (3) does not apply to an authority

of the Crown.

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

11. Territorial application of Act

(1) This Act applies to and in respect of an acquisition or supply or

the proposed acquisition or supply of goods or services, or the

disposal or proposed disposal of an interest in land —

(a) if the person by or to whom the goods or services are or

are proposed to be acquired or supplied signs in Western

Australia a document relating to the acquisition or

supply or the proposed acquisition or supply; or

(b) if the person by or to whom the interest in land is or is

proposed to be disposed of signs in Western Australia a

document relating to the disposal or the proposed

disposal of that interest; or

(c) if that person does not so sign such a document, if the

goods or services are or are proposed to be delivered or

supplied, or that land is situated, in Western Australia.

(2) Subsection (1) applies —

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

but

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

Act.

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

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

(b) bodies corporate incorporated or registered under the

law of this jurisdiction; or

(c) persons ordinarily resident in this jurisdiction; or

(d) persons otherwise connected with this jurisdiction.

(4) Subject to subsection (3), this Act extends to conduct, and other

acts, matters and things, occurring or existing outside or partly

outside this jurisdiction (whether within or outside Australia).

Fair Trading Act 2010

Part 2 Interpretation and application

Division 2 Application

s. 12

page 10 [This compilation shows amendments proposed by Bill No. 19-2.]

(5) This Act applies to a contract in the following circumstances,

despite the terms of the contract —

(a) if the proper law of a contract for the supply of goods or

services to a consumer would, but for a term that it

should be the law of some other place or a term to the

like effect, be the law of Western Australia;

(b) if a contract for the supply of goods or services to a

consumer contains a term that purports to substitute, or

has the effect of substituting, provisions of the law of

some other country or of another State or of a Territory

for all or any of the provisions of this Act.

(6) This section is subject to section 24.

12. Concurrent operation of laws of other jurisdictions not

limited

This Act is not intended to exclude or limit the concurrent

operation of any law of the Commonwealth or of another State

or a Territory.

13. No contracting out

(1) This Act has effect despite any stipulation in any contract or

agreement to the contrary.

(2) If the making of a contract contravenes this Act because the

contract includes a particular provision, nothing in this Act

affects the validity or enforceability of the contract otherwise

than in relation to that provision, so far as that provision is

severable.

(3) Subsection (2) is subject to subsection (1) and to any order

made under section 105 or 106.

14. Relationship with other Acts and rules of law

(1) This Act is to be read and construed as being in addition to, and

not in derogation of or in substitution for, any other Act or rule

of law for the time being in force in this State that relates to the

duty or liability of persons with respect to goods or services

supplied to a consumer.

(2) Except as expressly provided by this Act, nothing in this Act is

to be taken to limit, restrict or otherwise affect any right or

remedy a person would have had if this Act had not been

enacted.

Fair Trading Act 2010

Interpretation and application Part 2

Application Division 2

s. 15

page 11 [This compilation shows amendments proposed by Bill No. 19-2.]

15. Inconsistencies with other enactments

(1) This section applies if a provision of the Australian Consumer

Law (WA) Part 3-3 or an applied regulation is inconsistent

with —

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

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

specified.

(2A) In subsection (1) —

applied regulation means a regulation that —

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

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

(c) has effect for the purposes of the Australian Consumer

Law (WA) Part 3-3.

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

of the instrument, prevails.

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

s. 136.]

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 1 Object and interpretation

s. 16

page 12 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 3 — The Australian Consumer Law

Division 1 — Object and interpretation

16. Object of this Part

The object of this Part is to apply (with modifications) the

Australian Consumer Law set out in Schedule 2 to the

Competition and Consumer Act 2010 (Commonwealth) as a law

of Western Australia.

17. Terms used

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

amend includes replace;

amending law means a Commonwealth Act that amends either

or both of the following —

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

(Commonwealth);

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

application law means —

(a) a law of a participating jurisdiction that applies the

Australian Consumer Law, either with or without

modifications, as a law of the participating jurisdiction;

or

(b) any regulations or other legislative instrument made

under a law described in paragraph (a); or

(c) the Australian Consumer Law, applying as a law of the

participating jurisdiction, either with or without

modifications;

Australian Consumer Law means (according to the context) —

(a) the Australian Consumer Law text; or

(b) the Australian Consumer Law text, applying as a law of

a participating jurisdiction, either with or without

modifications;

Australian Consumer Law text means the text described in

section 18;

Australian Consumer Law (WA) means the provisions applying

in this jurisdiction because of section 19;

instrument means any document whatever, including the

following —

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

Fair Trading Act 2010

The Australian Consumer Law Part 3

Object and interpretation Division 1

s. 17

page 13 [This compilation shows amendments proposed by Bill No. 19-2.]

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

such a law;

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

industrial agreement;

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

otherwise);

(e) a notice, certificate or licence;

(f) an agreement;

(g) an application made, prosecution notice lodged,

information or complaint laid, affidavit sworn, or

warrant issued, for any purpose;

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

(i) any other pleading in, or process issued in connection

with, a legal or other proceeding;

Intergovernmental Agreement means the Intergovernmental

Agreement for the Australian Consumer Law made on

2 July 2009 between the Commonwealth, the State of New

South Wales, the State of Victoria, the State of Queensland, the

State of Western Australia, the State of South Australia, the

State of Tasmania, the Australian Capital Territory and the

Northern Territory of Australia, as in force for the time being;

jurisdiction means a State or the Commonwealth;

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

Territory;

modifications includes additions, omissions and substitutions;

participating jurisdiction means a jurisdiction that is a party to

the Intergovernmental Agreement and applies the Australian

Consumer Law as a law of the jurisdiction, either with or

without modifications;

State includes a Territory;

Territory means the Australian Capital Territory or the Northern

Territory of Australia;

this jurisdiction means Western Australia.

(2) Terms used in this Part and also in the Australian Consumer

Law (WA) have the same meanings in this Part as they have in

that Law.

(3) For the purposes of this Part —

(a) a jurisdiction is taken to have applied the Australian

Consumer Law as a law of the jurisdiction if a law of the

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 18

page 14 [This compilation shows amendments proposed by Bill No. 19-2.]

jurisdiction substantially corresponds to the provisions

of the Australian Consumer Law text, as in force from

time to time; and

(b) the corresponding law is taken to be the Australian

Consumer Law, or the Australian Consumer Law text,

applying as a law of that jurisdiction.

[Section 17 amended: Fair Trading Amendment Bill 2021 cl. 4.]

Division 2 — Application of Australian Consumer Law

18. Australian Consumer Law text

The Australian Consumer Law text consists of —

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

(Commonwealth); and

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

19. Application of Australian Consumer Law textAustralian

Consumer Law text, application of

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

text consists of —

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

(Commonwealth) as in force on 1 June 2021 and as

amended by each provision that —

(i) is in an amending law that has effect for the

purposes of this section under section 19B; and

(ii) has come into operation for the purposes of this

section under section 19C;

and

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

(Commonwealth), as in force on 26 October 2018 (but

as modified by section 36); and

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

those regulations are in force from time to time.time,

subject to subsection (1A).

(1A) For the purposes of subsection (1)(b), a provision of an

amending law does not amend regulations made under the

Competition and Consumer Act 2010 (Commonwealth)

section 139G unless —

(a) the amending law has effect for the purposes of this

section under section 19B; and

Fair Trading Act 2010

The Australian Consumer Law Part 3

Application of Australian Consumer Law Division 2

s. 19A

page 15 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the provision has come into operation for the purposes

of this section under section 19C.

(2) The Australian Consumer Law text —

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

(b) as so applying, may be referred to as the Australian

Consumer Law (WA); and

(c) in so far as it constitutes Schedule 2 to the Competition

and Consumer Act 2010 (Commonwealth), is part of this

Act; and

(d) in so far as it constitutes regulations made under

section 139G of the Competition and Consumer

Act 2010 (Commonwealth), is subsidiary legislation for

the purposes of this Act.

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

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

Fair Trading Amendment Bill 2021 cl. 5.]

19A. Tabling amending laws

An amending law must be laid before each House of Parliament

within 18 sitting days of the House after the day on which the

law receives the Royal Assent.

[Section 19A inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19B. Disallowance of amending laws

(1) In this section —

disallowance period, in relation to a disallowance resolution

notice of which is given in a House of Parliament, means the

period of 30 sitting days of the House after the day on which the

notice is given;

disallowance resolution means a resolution that an amending

law be disallowed;

notice period, in relation to an amending law laid before a

House of Parliament under section 19A, means the period of

14 sitting days of the House after the day on which the

amending law is laid before it.

(2) An amending law has effect for the purposes of section 19 if the

amending law is laid before each House of Parliament under

section 19A and either —

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 19C

page 16 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) no notice of a disallowance resolution is given in either

House within the notice period; or

(b) at least 1 notice of a disallowance resolution is given in

a House within the notice period and, for each such

notice, 1 of the following applies —

(i) the notice is withdrawn or discharged within the

disallowance period;

(ii) the disallowance resolution is lost in the House

or not agreed to within the disallowance period.

(3) For the purposes of this section and section 19A —

(a) the period specified in section 19A, a notice period or a

disallowance period continues to run even though a

House of Parliament is prorogued or dissolved or

expires; and

(b) notice of a disallowance resolution given in a House of

Parliament, or a motion that an amending law be

disallowed in the House, does not lapse even though the

House is prorogued or dissolved or expires.

[Section 19B inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19C. Commencement of amending laws

(1) In this section —

amending provision means a provision of an amending law that

amends either or both of the following —

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

(Commonwealth);

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

(2) If, under section 19B(2), an amending law has effect for the

purposes of section 19, the Governor must declare that fact by

proclamation as soon as practicable.

(3) If an amending provision has come into operation in the

Commonwealth before the proclamation is published in the

Gazette, the amending provision comes into operation for the

purposes of section 19 on a day fixed by the proclamation.

(4) If an amending provision has not come into operation in the

Commonwealth before the proclamation is published in the

Gazette, the amending provision comes into operation for the

purposes of section 19 when the amending provision comes into

Fair Trading Act 2010

The Australian Consumer Law Part 3

Application of Australian Consumer Law Division 2

s. 19D

page 17 [This compilation shows amendments proposed by Bill No. 19-2.]

operation in the Commonwealth in accordance with the

amending law.

[Section 19C inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19D. Amending laws enacted after 1 June 2021 but before

commencement day

If an amending law receives the Royal Assent after 1 June 2021

but before the day (commencement day) on which the Fair

Trading Amendment Act 2021 section 6 comes into operation,

sections 19A to 19C apply to the amending law as if the

amending law received the Royal Assent on commencement

day.

[Section 19D inserted: Fair Trading Amendment Bill 2021

cl. 6.]

19E. Tabling of amending law taken to be publication for

Standing Orders

(1) In this section —

parliamentary committee means a committee established by

either or both of the Houses of Parliament.

(2) If a Standing Order of a House of Parliament provides that on

the publication of an instrument under a written law the

instrument is referred to a parliamentary committee for

consideration, the laying of an amending law before the House

under section 19A is taken to be publication of the amending

law for the purposes of the Standing Order.

(3) This section does not apply if the Standing Orders of the House

provide specifically for an amending law to be considered by a

parliamentary committee.

[Section 19E inserted: Fair Trading Amendment Bill 2021

cl. 6.]

[20. Deleted: No. 11 of 2013 s. 6.]

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

by Parliament

(1) This section applies to the following instruments —

(a) regulations made under the Competition and Consumer

Act 2010 (Commonwealth) section 139G;

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 2 Application of Australian Consumer Law

s. 22

page 18 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) a determination under the Australian Consumer Law

(WA) section 66(1) (display notices);

(c) a notice under the Australian Consumer Law (WA)

section 104(1) or 105(1) (safety standards);

(d) a notice under the Australian Consumer Law (WA)

section 114(1) or (2) (permanent bans);

(e) a notice under the Australian Consumer Law (WA)

section 117 (revocation of permanent bans);

(f) a notice under the Australian Consumer Law (WA)

section 122(1) (recall notices) by a responsible Minister

of this jurisdiction;

(g) a notice under the Australian Consumer Law (WA)

section 134(1) or 135(1) (information standards).

(2) Where an instrument to which this section applies is made, a

copy of the instrument must be published in the Gazette not

later than 28 days after the instrument is made.

(3) If a copy of an instrument is not published in the Gazette in

accordance with subsection (2) —

(a) the instrument ceases to have effect in this jurisdiction

on the expiry of the 28th day after the instrument is

made, but without affecting the validity or curing the

invalidity of anything done or of the omission of

anything in the meantime; but

(b) if a copy of the instrument is subsequently published in

the Gazette, the instrument again has effect on and from

the day after the day of publication of a copy of the

instrument.

(4) Where a copy of an instrument to which this section applies is

published in the Gazette, the Interpretation Act 1984 section 42

applies to that instrument as if it were a regulation published in

the Gazette.

22. Term used in ACL (WA): regulator

In the Australian Consumer Law (WA)

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

23. ACL (WA), interpretation of

(1) The Acts Interpretation Act 1901 (Commonwealth) applies as a

law of this jurisdiction to the Australian Consumer Law (WA).

Fair Trading Act 2010

The Australian Consumer Law Part 3

References to Australian Consumer Law Division 3

s. 24

page 19 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) For the purposes of subsection (1), the Commonwealth Act

mentioned in that subsection applies as if —

(a) the statutory provisions in the Australian Consumer Law

(WA) were a Commonwealth Act; and

(b) the regulations in the Australian Consumer Law (WA) or

instruments under that Law were regulations or

instruments under a Commonwealth Act.

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

apply to —

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

(b) any instrument under that Law.

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

24. ACL (WA), application of

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

to —

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

(b) bodies corporate incorporated or registered under the

law of this jurisdiction; or

(c) persons ordinarily resident in this jurisdiction; or

(d) persons otherwise connected with this jurisdiction.

(2) Subject to subsection (1), the Australian Consumer Law (WA)

extends to conduct, and other acts, matters and things, occurring

or existing outside or partly outside this jurisdiction (whether

within or outside Australia).

Division 3 — References to Australian Consumer Law

25. References to Australian Consumer Law

(1) A reference in any instrument to the Australian Consumer Law

is a reference to the Australian Consumer Law of any or all of

the participating jurisdictions.

(2) Subsection (1) has effect except so far as the contrary intention

appears in the instrument or the context of the reference

otherwise requires.

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 4 Application of Australian Consumer Law to Crown

s. 26

page 20 [This compilation shows amendments proposed by Bill No. 19-2.]

26. References to Australian Consumer Law of other

jurisdictions

(1) This section has effect for the purposes of an Act, a law of this

jurisdiction or an instrument under an Act or such a law.

(2) If a law of a participating jurisdiction other than this jurisdiction

provides that the Australian Consumer Law text as in force for

the time being applies as a law of that jurisdiction, the

Australian Consumer Law of that jurisdiction is the Australian

Consumer Law text, applying as a law of that jurisdiction.

Division 4 — Application of Australian Consumer Law

to Crown

27. Division does not apply to Commonwealth

In this Division —

participating jurisdiction or other jurisdiction does not include

the Commonwealth.

28. Application law of this jurisdiction binds Crown

The application law of this jurisdiction binds (so far as the

legislative power of Parliament permits) the Crown in right of

this jurisdiction and of each other jurisdiction, so far as the

Crown carries on a business, either directly or by an authority of

the jurisdiction concerned.

29. Application law of other jurisdictions binds Crown

(1) The application law of each participating jurisdiction other than

this jurisdiction binds the Crown in right of this jurisdiction, so

far as the Crown carries on a business, either directly or by an

authority of this jurisdiction.

(2) If, because of this Part, a provision of the law of another

participating jurisdiction binds the Crown in right of this

jurisdiction, the Crown in that right is subject to that provision

despite any prerogative right or privilege.

30. Crown not liable to pecuniary penalty or prosecution

(1) Nothing in the application law of this jurisdiction makes the

Crown in any capacity liable to a pecuniary penalty or to be

prosecuted for an offence.

(2) Without limiting subsection (1), nothing in the application law

of a participating jurisdiction makes the Crown in right of this

Fair Trading Act 2010

The Australian Consumer Law Part 3

Miscellaneous Division 5

s. 31

page 21 [This compilation shows amendments proposed by Bill No. 19-2.]

jurisdiction liable to a pecuniary penalty or to be prosecuted for

an offence.

(3) The protection in subsection (1) or (2) does not apply to an

authority of any jurisdiction.

Division 5 — Miscellaneous

31. No doubling-up of criminal liabilities

(1) For the purposes of this section, a person is convicted of an

offence if a court finds the person guilty of the offence, or

accepts a plea of guilty of the offence, whether or not a

conviction is recorded.

(2) If —

(a) an act or omission is an offence against the Australian

Consumer Law (WA) and is also an offence against the

application law of another participating jurisdiction; and

(b) the offender has been acquitted or convicted of the

offence with which the offender is charged, or has

already been convicted or acquitted of an offence of

which the offender might be convicted upon the

indictment or prosecution notice on which the offender

has been charged, under the application law of the other

participating jurisdiction,

the offender is not liable to be prosecuted or punished for the

offence against the Australian Consumer Law (WA).

(3) Nothing in subsection (2) prevents the Commissioner from

making or issuing a statement under section 57.

(4) If a person has been ordered to pay a pecuniary penalty under

the application law of another participating jurisdiction, the

person is not liable to a pecuniary penalty under the Australian

Consumer Law (WA) in respect of the same conduct.

32. Offences against ACL (WA) are crimes

(1) A reference in this section to a person involved in the

commission of an offence against the Australian Consumer Law

(WA) is to be read as a reference to a person who —

(a) has aided, abetted, counselled or procured the

commission of the offence; or

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

otherwise, the commission of the offence; or

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 5 Miscellaneous

s. 33

page 22 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the commission of the offence;

or

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

the offence; or

(e) has attempted to commit the offence, or to do any act of

a kind referred to in paragraph (a), (b), (c) or (d).

(2) A person who —

(a) commits an offence against the Australian Consumer

Law (WA); or

(b) is involved in the commission of an offence against the

Australian Consumer Law (WA),

is guilty of a crime.

Penalty: the penalty set out in the Australian Consumer

Law (WA).

Summary conviction penalty: the lesser of a fine of $36 000 or

the maximum penalty provided by the Australian

Consumer Law (WA) for the offence.

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

33. Pecuniary penalty proceedings under ACL (WA) s. 224, civil

rules of evidence etc. apply

The Court must apply the rules of evidence and procedure for

civil matters when hearing proceedings for a pecuniary penalty

under the Australian Consumer Law (WA) section 224.

[34. Deleted: No. 19 of 2016 s. 137.]

35. Sale of Goods Act 1895, inconsistency with certain provisions

of ACL (WA)

(1) Where a provision of the Australian Consumer Law (WA)

Part 3-2 Division 1 is, in its application to any circumstance,

matter or thing, inconsistent with a provision of the Sale of

Goods Act 1895 in its application to the same circumstance,

matter or thing —

(a) the provision of the Australian Consumer Law (WA)

Part 3-2 Division 1 prevails; and

(b) the provision of the Sale of Goods Act 1895 is

inoperative to the extent of the inconsistency.

(2) This section applies despite —

Fair Trading Act 2010

The Australian Consumer Law Part 3

Transitional Division 6

s. 36

page 23 [This compilation shows amendments proposed by Bill No. 19-2.]

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

(b) an agreement that provides otherwise.

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

(1) This section makes the modifications to the text of Schedule 2

to the Competition and Consumer Act 2010 (Commonwealth),

as in force on 1 January 2013, that, together with the regulations

referred to in section 19(1)(b), result in the text that

section 19(2) applies as the Australian Consumer Law (WA).

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

(b) on a Saturday:

(i) between midnight and 9 am; or

(ii) between 5 pm and midnight; or

(c) on any other day:

(i) between midnight and 9 am; or

(ii) between 8 pm and midnight.

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

(b) on a Saturday:

(i) between midnight and 9 am; or

(ii) between 5 pm and midnight; or

(c) on any other day:

(i) between midnight and 9 am; or

(ii) between 8 pm and midnight.

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

[The effect of section 36(2) and (3) is altered by the Fair

Trading (Permitted Calling Hours) Regulations 2014 2.]

[36. Deleted: Fair Trading Amendment Bill 2021 cl. 7(1).]

Division 6 — Transitional

37. Certain injunction proceedings pending at 1 Jan 2011

(1) To the extent that any proceedings to which the Fair Trading

Act 1987 section 3C(2)(c) applies are proceedings for an

injunction under section 74 or 75 of that Act, the proceedings

Fair Trading Act 2010

Part 3 The Australian Consumer Law

Division 6 Transitional

s. 38

page 24 [This compilation shows amendments proposed by Bill No. 19-2.]

are taken, after the commencement of this section, to be

proceedings for an injunction under the Australian Consumer

Law (WA) section 232.

(2) This section overrides the Fair Trading Act 1987

section 3C(2)(c).

38. ACL (WA) Part 2-3 (unfair contract terms), application of

to contracts made on or after 1 Jan 2011

(1) The Australian Consumer Law (WA) Part 2-3 applies to a

contract entered into on or after the commencement of this

section.

(2) That Part does not apply to a contract entered into before that

commencement. However —

(a) if the contract is renewed on or after that

commencement — that Part applies to the contract as

renewed, on and from the day (the renewal day) on

which the renewal takes effect, in relation to conduct

that occurs on or after the renewal day; or

(b) if a term of the contract is varied on or after that

commencement, and paragraph (a) has not already

applied in relation to the contract — that Part applies to

the term as varied, on and from the day (the variation

day) on which the variation takes effect, in relation to

conduct that occurs on or after the variation day.

(3) If subsection (2)(b) applies to a term of a contract,

sections 23(2) and 27 of the Australian Consumer Law (WA)

apply to the contract.

39. ACL (WA) Part 3-2 Div. 2 (unsolicited consumer

agreements), application of to contracts made before

1 Jan 2011 etc.

(1) The Australian Consumer Law (WA) Part 3-2 Division 2 does

not apply to any contract made before the commencement of

this section.

(2) The Australian Consumer Law (WA) Part 3-2 Division 2

applies to a contract made on or after the commencement of this

section even though negotiations leading to the formation of the

contract may have taken place before the commencement of this

section.

Fair Trading Act 2010

The Australian Consumer Law Part 3

Transitional Division 6

s. 40

page 25 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) The Door to Door Trading Act 1987 section 3C relates to the

application of that Act to contracts made before the

commencement of this section.

40. ACL (WA) s. 101 (requests for itemised bills), application of

for services supplied before 1 Jan 2011

The Australian Consumer Law (WA) section 101 does not apply

in relation to a supply of services to the extent that the services

were supplied before the commencement of this section.

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

The reference in the Australian Consumer Law (WA)

section 224(2)(c) to proceedings under Chapter 4 or Part 5-2 of

that Law includes a reference to proceedings, commenced

before the commencement of this section, under or in relation

to —

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

(Commonwealth); or

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

Fair Trading Act 2010

Part 4 Codes of practice

Division 1 Preliminary

s. 42

page 26 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 4 — Codes of practice

Division 1 — Preliminary

42. Outline of this Part

(1) This Part provides for the making of regulations prescribing a

code of practice for fair dealing between a particular class of

suppliers and consumers, or by a particular class of persons in

relation to consumers.

(2) If a person carries on business in contravention of a prescribed

code of practice applying to them, the Commissioner can apply

to the State Administrative Tribunal for an order requiring the

person to comply with the code and rectify the consequence of

the contravention of the code.

(3) This section is intended only as a guide to the general scheme

and effect of this Part, and does not limit the other provisions of

this Part.

43. Term used: code of practice

In this Part —

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

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

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

or

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

services.

Division 2 — Development and implementation of codes

of practice

44. Draft codes of practice, preparation of

(1) The Commissioner may, with the approval of the Minister,

prepare a draft code of practice for submission to the Minister

for consideration.

(2) The Commissioner must, if the Minister directs, prepare a draft

code of practice for submission to the Minister for

consideration.

(3) For the purpose of preparing a draft code of practice, the

Commissioner must arrange for consultation with, and invite

submissions from, persons and organisations that the

Fair Trading Act 2010

Codes of practice Part 4

Development and implementation of codes of practice Division 2

s. 45

page 27 [This compilation shows amendments proposed by Bill No. 19-2.]

Commissioner considers would have an interest in the terms of

the proposed draft code.

(4) Without limiting subsection (3), the Commissioner must consult

with, and invite submissions from, the following —

(a) principal organisations that represent those suppliers that

are likely to be affected by the terms of the draft code of

practice;

(b) principal organisations representing consumers.

45. Regulations prescribing code of practice

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

(a) has been submitted to the Minister in accordance with

section 44; and

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

amendments.

(2) Regulations prescribing a code of practice must provide that the

regulations expire on a date specified in the regulations, which

must be a date that is not later than the last day of the period of

3 years after the date on which the code of practice first takes

effect.

(3) Regulations prescribing a code of practice may be amended to

remove the expiry date of the regulations if —

(a) the Commissioner undertakes a review of the code of

practice before the regulations expire; and

(b) in undertaking the review, the Commissioner follows the

consultation procedures set out in section 44.

46. Interim code of practice, regulations may prescribe

(1) The regulations may prescribe a code of practice even though

the procedures set out in section 44 have not been followed or

completed.

(2) A code of practice prescribed under this section is an interim

code of practice, and may have effect for a period (not

exceeding 6 months) specified in the regulations.

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 47

page 28 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — Enforcement of codes of practice

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

of practice

(1) Where it appears to the Commissioner that a person has carried

on business in contravention of a prescribed code of practice

applicable to that person, the Commissioner may apply to the

State Administrative Tribunal for an order under this section.

(2) Where, on the application of the Commissioner, the State

Administrative Tribunal is satisfied that a person has carried on

business in contravention of a prescribed code of practice

applicable to that person, the Tribunal may make either or both

of the following orders —

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

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

contravention.

(3) The State Administrative Tribunal may make an order under

subsection (2) in relation to a person with that person’s consent,

without being satisfied that there are grounds for making the

order.

(4) Where the contravention is by a body corporate, and the

Tribunal is satisfied that it occurred with the consent or

connivance of a person who, at the time of the contravention,

was a director of the body corporate or a person concerned in its

management, the Tribunal may make the following additional

orders —

(a) an order prohibiting the person from continuing to

consent to, or connive at, the contravention;

(b) an order prohibiting the person from consenting to, or

conniving at, a similar contravention by any other body

corporate of which the person is a director or in whose

management the person is concerned.

(5) An order under this section may be made subject to any

conditions (whether as to the duration of the order or otherwise)

the State Administrative Tribunal thinks fit, including —

(a) conditions relating to the future conduct of the person

affected; and

(b) conditions specifying the action to be taken by the

person to rectify the consequences of the contravention

that is the subject of the order.

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 48

page 29 [This compilation shows amendments proposed by Bill No. 19-2.]

(6) A person who fails to comply with an order of the State

Administrative Tribunal under this section commits an offence.

Penalty: a fine of $50 000.

48. Commissioner may take or defend, or assume the conduct or

defence of, proceedings relating to contravention of code of

practice

(1) This section applies where —

(a) a person (other than a body corporate) has made a

complaint to the Commissioner in respect of a matter

arising under a code of practice or in relation to a

contravention or suspected contravention of a code of

practice; and

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

satisfied —

(i) that the complainant may, with respect to the

matter, have a right to take proceedings before a

court or the State Administrative Tribunal, or a

defence to proceedings taken before a court or

the State Administrative Tribunal by another

person against the complainant in respect of the

matter; and

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

(I) the Commissioner take or, as the case

requires, defend those proceedings on

behalf of the complainant; or

(II) if proceedings are already being taken

or defended by the complainant with

respect to the matter — the

Commissioner assume the conduct or

defence of those proceedings on behalf

of the complainant.

(2) If this section applies, the Commissioner may take, defend or

assume the conduct or defence of those proceedings on behalf

of, and in the name of, the complainant.

(3) The Commissioner must not take, defend or assume the conduct

or defence of any proceedings under this section without first

obtaining —

(a) the written consent of the complainant, which once

given cannot be revoked unless the Commissioner

consents to the revocation; and

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 49

page 30 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the written consent of the Minister, which may be given

subject to any conditions the Minister thinks fit.

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

49. Provisions for proceedings Commissioner institutes, defends

or assumes conduct or defence of

(1) The following provisions apply in relation to any proceedings

the Commissioner institutes, defends or assumes the conduct or

defence of under section 48 on behalf of a complainant —

(a) the Commissioner has, on behalf of the complainant, in

all respects the same rights in and control over the

proceedings, including the right to settle any action or

part of any action, as the complainant would have had in

the conduct of those proceedings;

(b) the Commissioner may, without consulting or seeking

the consent of the complainant, conduct the proceedings

in whatever manner the Commissioner thinks

appropriate and proper;

(c) any moneys (excluding costs) recovered by the

Commissioner belong and must be paid to the

complainant without deduction, and any amount

awarded against the complainant must be paid by and is

recoverable from the complainant;

(d) in all cases the costs of the proceedings must be borne

by or paid to and retained by the Commissioner as the

case may require;

(e) if any party to the proceedings files a counterclaim, or if

the complainant on whose behalf the proceedings are

being defended is entitled to file a counterclaim, and that

counterclaim is not related to the cause of action, the

court or, as the case requires, the State Administrative

Tribunal hearing the proceedings —

(i) must, on the application of the Commissioner,

order that the counterclaim be heard separately

and that the consumer be a party to the

counterclaim in the complainant’s own right; and

(ii) may make any other orders or give any directions

in that behalf the court or Tribunal thinks fit.

(2) Any money that the Commissioner becomes liable to pay by

virtue of this section is to be charged to the Consolidated

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 50

page 31 [This compilation shows amendments proposed by Bill No. 19-2.]

Account, and this Act, without any further appropriation, is

sufficient authority for the payment of the money.

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

50. No doubling-up of liabilities

(1) For the purposes of this section, a person is convicted of an

offence if a court finds the person guilty of the offence, or

accepts a plea of guilty of the offence, whether or not a

conviction is recorded.

(2) If an act or omission is a contravention of a prescribed code of

practice and is also an offence against the Australian Consumer

Law (WA), and an order is made under section 47 in respect of

that contravention, the offender is not liable to be punished for

the offence against the Australian Consumer Law (WA).

(3) If an act or omission is a contravention of a prescribed code of

practice and is also an offence against the Australian Consumer

Law (WA), and the offender has been convicted of the offence

under the Australian Consumer Law (WA), the offender is not

liable to have an order made against them under section 47.

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

other civil action

(1) The fact that the Commissioner has made an application under

section 47 in respect of a matter that is alleged to be a

contravention of a prescribed code of practice, or that the State

Administrative Tribunal has made an order under that section in

respect of that matter, does not prevent any other person from

taking proceedings before a court or the State Administrative

Tribunal in respect of the matter.

(2) Nothing in this section permits a person other than the

Commissioner to make an application under section 47.

52. Transitional provisions for codes of practice prescribed

before 1 Jan 2011

(1) Regulations made under the Fair Trading Act 1987 section 84

prescribing a code of practice in accordance with section 43(1)

of that Act and that were in force immediately before the

commencement of this section continue in force after that

commencement as if they were made under section 45, but

nothing in section 45(2) and (3) applies in relation to those

regulations.

Fair Trading Act 2010

Part 4 Codes of practice

Division 3 Enforcement of codes of practice

s. 53

page 32 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) However, in the case of regulations prescribing a code of

practice that first took effect at least 3 years before the

commencement of this section, those regulations do not

continue in force under subsection (1) unless, within the period

of 3 years beginning on the date on which that code of practice

first took effect, a review, in accordance with the Fair Trading

Act 1987 section 42, has been undertaken.

(3) Where regulations (other than regulations to which

subsection (2) applies) continue in force under subsection (1),

the regulations expire at the close of the last day of the period of

3 years beginning on the date on which the code of practice

prescribed by the regulations first took effect unless, within that

period —

(a) the Commissioner undertakes a review of the code of

practice; and

(b) in undertaking the review, the Commissioner follows the

consultation procedures set out in section 44.

(4) Regulations made under the Fair Trading Act 1987 section 84

prescribing an interim code of practice in accordance with

section 43(2) of that Act and that were in force immediately

before the commencement of this section continue in force after

that commencement as if they were made under section 46.

53. Transitional provisions for undertakings under Fair Trading

Act 1987 s. 44

(1) The following provisions apply to a deed executed under the

Fair Trading Act 1987 section 44 and that was in force

immediately before the commencement of this section —

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

(b) a person must observe undertakings given by the person

in the deed;

(c) if, on the application of the Commissioner, the State

Administrative Tribunal is satisfied that a person has

failed to observe an undertaking given by the person in

the deed, the State Administrative Tribunal may order

the person —

(i) to observe the undertaking; and

(ii) in the case of an undertaking to rectify the

consequence of a contravention of a code of

practice — to observe the undertaking within a

time specified by the State Administrative

Tribunal in the order.

Fair Trading Act 2010

Codes of practice Part 4

Enforcement of codes of practice Division 3

s. 54

page 33 [This compilation shows amendments proposed by Bill No. 19-2.]

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

offence.

Penalty: a fine of $10 000.

(3) A prosecution for an offence under subsection (2) can be

instituted only by the Commissioner, and only with leave of the

State Administrative Tribunal given when making an order

under subsection (1)(c).

(4) Section 47(3) to (6) apply in relation to proceedings under

subsection (1)(c) as if they were proceedings for an order under

that section.

54. Transitional provisions for contraventions of code of

practice before 1 Jan 2011

(1) This section applies if —

(a) before the commencement of section 52, a person has

carried on business in contravention of a prescribed code

of practice applicable to the person; and

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

and

(c) the person did not execute a deed under the Fair Trading

Act 1987 section 44 in relation to the contravention of

the code of practice before the commencement of this

section.

(2) If this section applies —

(a) the Commissioner can make an application under

section 47 in respect of the contravention of the code of

practice, as long as the application is made not later than

6 months after the commencement of this section; and

(b) the State Administrative Tribunal can deal with the

application under that section accordingly.

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 55

page 34 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 5 — Administrative provisions

Division 1 — Commissioner

55. Commissioner, designation and title of

(1) In this section —

executive officer has the meaning given by the Public Sector

Management Act 1994 section 3(1).

(2) The Minister must, by notice published in the Gazette, designate

an executive officer of the Department as the Commissioner for

the purposes of this Act.

(3) The Commissioner may be referred to by a title specified by the

Minister by notice published in the Gazette.

56. General functions of Commissioner

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

(a) to promote the interests of consumers and assist them to

a greater awareness in relation to their assessment and

use of goods and services;

(b) to collect, collate and disseminate information in respect

of matters affecting the interests of consumers;

(c) to receive complaints from consumers concerning

matters affecting their interests as consumers, to

consider and, if the Commissioner considers it

warranted, to investigate those complaints and to take

whatever action in respect of those complaints as seems

proper to the Commissioner;

(d) to receive complaints of fraudulent or deceptive

practices in relation to matters that affect or are likely to

affect the interests of consumers, and to make whatever

investigations and inquiries and to take whatever other

action in respect of those complaints as seems proper to

the Commissioner;

(e) to advise and assist consumers who seek from the

Commissioner information or guidance on matters

affecting their interests as consumers;

(f) to encourage and undertake the dissemination of

information concerning consumer affairs to producers,

manufacturers and suppliers of goods or services;

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 57A

page 35 [This compilation shows amendments proposed by Bill No. 19-2.]

(g) to perform any other functions that are conferred or

imposed on the Commissioner by this Act or any

other Act.

(2) Without limiting the generality of subsection (1), the

Commissioner is to —

(a) make whatever recommendations to the Minister the

Commissioner considers necessary or desirable in the

interests of consumers and, in particular, investigate and

make recommendations to the Minister in relation to any

matters that concern the need for, or desirability of,

legislative or administrative action in the interests of

consumers;

(b) advise the Minister on any matters affecting the interests

of consumers that the Minister may refer to the

Commissioner;

(c) make recommendations to the Minister for the

establishment and maintenance of means by which —

(i) matters that affect the interests of consumers and

of persons engaged in the production,

manufacture, preparation or supply of goods or in

commerce or in the provision of services may

receive adequate consideration; and

(ii) information concerning those matters and

considerations may be widely disseminated.

(3) The Commissioner may cooperate, associate or consult with

organisations that have the power to make investigations of the

nature referred to in subsection (2)(a).

57A. Licensing and regulatory functions of Commissioner

The Commissioner has the following functions with respect to

the licensing, registration and certification schemes provided for

in the Acts specified in Schedule 2 —

(a) to administer the scheme of licensing, registration and

certification established under those Acts;

(b) to conduct and promote education and provide advisory

services for persons who are licensed, registered or

certificated under those Acts, or involved in the

administration of those Acts, and for members of the

public on —

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

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 57

page 36 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) matters relating to the operations of persons who

are licensed, registered or certificated under

those Acts;

(c) to advise the Minister as to the general administration of

those Acts;

(d) to make recommendations and submit proposals to the

Minister from time to time with respect to regulations to

be made under those Acts;

(e) to carry out any other functions conferred on the

Commissioner under those Acts.

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

57. Warnings and information, Commissioner may issue

(1) The Commissioner may publish (in any form) a statement

identifying and giving warnings or information about any of the

following —

(a) goods that are unsatisfactory or dangerous and persons

who supply or are likely to supply those goods;

(b) services supplied in an unsatisfactory or dangerous

manner and persons who supply or are likely to supply

those services;

(c) unfair business practices and persons who engage or are

likely to engage in those practices;

(d) any other matter that adversely affects or may adversely

affect the interests of consumers in connection with the

acquisition by them of goods or services.

(2) A statement under subsection (1) may identify particular goods,

services, business practices, persons, corporate names, business

names and trading names.

(3) The Commissioner must not make or issue a statement under

this section unless satisfied that it is in the public interest to

do so.

58. Instituting, defending or assuming conduct or defence of

legal proceedings on behalf of consumers or businesses

(1) This section applies where —

(a) after a complaint or matter has been made or referred to

the Department, the Commissioner is satisfied —

(i) that a consumer has a cause of action or a good

defence to an action; and

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 58

page 37 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) that it is in the public interest or proper to

institute, defend or assume the conduct or

defence of legal proceedings on behalf of the

consumer;

or

(b) the Commissioner is satisfied that it is proper to

institute, defend or assume the conduct or defence of

legal proceedings on behalf of a business in relation to

the supply or possible supply of goods or services in

trade or commerce because a matter of public interest is

involved.

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

(a) where subsection (1)(a) applies, on behalf of the

consumer, institute legal proceedings against any other

person, or defend any proceedings brought against the

consumer, or assume the conduct or defence of

proceedings already commenced by or against the

consumer, with a view to enforcing or protecting the

rights of the consumer in relation to any infringement or

suspected infringement by that other person of those

rights or of any of the provisions of any Act or any other

law relating to the interests of consumers; or

(b) where subsection (1)(b) applies, on behalf of the

business, institute legal proceedings against any other

person, or defend any proceedings brought against the

business, or assume the conduct or defence of

proceedings already commenced by or against the

business.

(3) The Commissioner must not institute, defend or assume the

conduct or defence of any proceedings under this section —

(a) unless either —

(i) the amount claimed or involved in either case

does not exceed $100 000 or such greater amount

as is prescribed for the purposes of this

paragraph; or

(ii) an order for specific performance of a contract,

or an order in the nature of an order for specific

performance of a contract, is the only remedy

sought in the proceedings;

and

Fair Trading Act 2010

Part 5 Administrative provisions

Division 1 Commissioner

s. 59

page 38 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) without first obtaining —

(i) the written consent of the consumer or, as the

case requires, the business, which once given

cannot be revoked unless the Commissioner

consents to the revocation; and

(ii) the written consent of the Minister, which may

be given subject to any conditions the Minister

thinks fit.

(4) The Commissioner may make any investigation or inquiry under

Part 6 that the Commissioner considers necessary or desirable

for the purposes of —

(a) satisfying himself or herself that it is proper to institute,

defend or assume the conduct or defence of legal

proceedings on behalf of a business under

subsection (1)(b); and

(b) instituting, defending or assuming the conduct or

defence of those proceedings; and

(c) conducting those proceedings.

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

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

59. Provisions for proceedings Commissioner institutes, defends

or assumes conduct or defence of

(1) The following provisions apply in relation to any proceedings

the Commissioner institutes, defends or assumes the conduct or

defence of under section 58 on behalf of a consumer or

business —

(a) the Commissioner has, on behalf of the consumer or

business, in all respects the same rights in and control

over the proceedings, including the right to settle any

action or part of any action, as the consumer or business

would have had in the conduct of those proceedings;

(b) the Commissioner may, without consulting or seeking

the consent of the consumer or business, conduct the

proceedings in whatever manner the Commissioner

thinks appropriate and proper;

(c) any moneys (excluding costs) recovered by the

Commissioner belong and must be paid to the consumer

or business without deduction, and any amount awarded

against the consumer or business must be paid by and is

recoverable from the consumer or business;

Fair Trading Act 2010

Administrative provisions Part 5

Commissioner Division 1

s. 60

page 39 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) in all cases the costs of the proceedings must be borne

by or paid to and retained by the Commissioner as the

case may require;

(e) if any party to the proceedings files a counterclaim, or if

the consumer or business on whose behalf the

proceedings are being defended is entitled to file a

counterclaim, and that counterclaim is not related to the

cause of action and in no way relates to the interests of

the consumer as a consumer or, as the case requires, the

interests of the business as a business, the court hearing

the proceedings —

(i) must, on the application of the Commissioner,

order that the counterclaim be heard separately

and that the consumer or business be a party to

the counterclaim in the consumer’s or business’s

own right; and

(ii) may make any other orders or give any directions

in that behalf the court thinks fit.

(2) Any money that the Commissioner becomes liable to pay by

virtue of this section is to be charged to the Consolidated

Account, and this Act, without any further appropriation, is

sufficient authority for the payment of the money.

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

60. Delegation by Commissioner

(1) The Commissioner may delegate to any other person employed

in the Department any power or duty of the Commissioner

under a provision of this or any other Act.

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

(3) A person to whom a power or duty is delegated under this

section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been

delegated to the person under this section is to be taken to do so

in accordance with the terms of the delegation unless the

contrary is shown.

(5) Nothing in this section limits the ability of the Commissioner to

perform a function through an officer or agent.

Fair Trading Act 2010

Part 5 Administrative provisions

Division 2 Offence

s. 61

page 40 [This compilation shows amendments proposed by Bill No. 19-2.]

61. Judicial notice of Commissioner’s signature etc.

All courts, judges and persons acting judicially must take

judicial notice of —

(a) the official signature of every person who is for the time

being, and every person who has at any time been, the

Commissioner; and

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

Division 2 — Offence

62. Advertisements not to imply approval by consumer affairs

authority

(1) In this section —

consumer affairs authority

(a) means —

(i) the Department or the chief executive officer or

the Commissioner; or

(iia) an advisory committee appointed under

Division 3; or

(ii) any person, or statutory body or authority,

appointed or constituted under any law of the

Commonwealth or of any State or Territory of

the Commonwealth and having powers,

functions and duties under the laws of the

Commonwealth or that State or Territory similar

to those of the Department or the chief executive

officer or the Commissioner under the laws of

this State;

and

(b) includes —

(i) any officer of the Department; and

(ii) any officer or employee of a statutory body, an

advisory committee or an authority referred to in

paragraph (a)(iia) or (a)(ii) of this definition;

publish includes —

(a) include in a newspaper or other publication published in

this State;

Fair Trading Act 2010

Administrative provisions Part 5

Offence Division 2

s. 62

page 41 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) disseminate by the exhibition or broadcast of a

photograph, slide, film, video recording, audio recording

or other recording of images or sound;

(c) broadcast by radio or for television;

(d) include on an internet website or otherwise publicly

disseminate by means of the internet;

(e) publicly exhibit in, on, over or under any building,

vehicle or place, or in the air, in view of persons in or on

any street or public place;

(f) include in a document gratuitously sent or delivered to

any person or thrown or left on premises occupied by

any person or left on a vehicle;

(g) make verbally to any person.

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

statement —

(a) that is intended or is apparently intended to promote the

sale, hiring or leasing of goods, or the sale of an estate or

interest in any land or building, or the letting or leasing

of any land or building or part of a building, or the use

of a service rendered for fee or reward; and

(b) that states, either expressly or by implication, that any

consumer affairs authority has approved, or has

refrained from disapproving, the statement or any

material particular in the statement or any claim made in

the statement or any goods or services depicted or

described, whether by a trade name or otherwise, in the

statement.

Penalty: a fine of $10 000.

(3) It is a defence in any proceedings for an offence under

subsection (2) if the accused satisfies the court that, before the

publication of the statement, the Minister consented in writing

to its publication.

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

Fair Trading Act 2010

Part 5 Administrative provisions

Division 3 Advisory committees

s. 63A

page 42 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — Advisory committees

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

Subdivision 1 — Property Industry Advisory Committee

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

63A. Committee established

A committee called the Property Industry Advisory Committee

is established.

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

63B. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

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

Chairperson.

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

of 2019 s. 5.]

63C. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the regulation of the real estate, settlement and land

valuation industries in Western Australia, including the

licensing, regulation and training of persons or

businesses who or which undertake the functions of a

real estate agent, real estate sales representative,

business agent, business sales representative, settlement

agent or land valuer; and

(b) the provision by the Commissioner of education,

information and advice to consumers and to the real

estate, settlement and land valuation industries in

Western Australia; and

(c) the criteria required for applications under the Real

Estate and Business Agents Act 1978 section 131O; and

Fair Trading Act 2010

Administrative provisions Part 5

Advisory committees Division 3

s. 63D

page 43 [This compilation shows amendments proposed by Bill No. 19-2.]

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

the Commissioner.

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

63D. Procedure

(1) The Committee may regulate its own procedure.

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

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

Subdivision 2 — Motor Vehicle Industry Advisory Committee

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

63E. Committee established

A committee called the Motor Vehicle Industry Advisory

Committee is established.

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

63F. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

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

Chairperson.

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

of 2019 s. 6.]

63G. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the regulation of the motor vehicle dealing and repair

industry in Western Australia, including the licensing,

certification and training of persons or businesses who

or which engage in motor vehicle dealing and repair;

and

Fair Trading Act 2010

Part 5 Administrative provisions

Division 3 Advisory committees

s. 63H

page 44 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the provision by the Commissioner of education,

information and advice to consumers and to the motor

vehicle dealing and repair industry in Western Australia;

and

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

the Commissioner.

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

63H. Procedure

(1) The Committee may regulate its own procedure.

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

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

Subdivision 3 — Consumer Advisory Committee

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

63I. Committee established

A committee called the Consumer Advisory Committee is

established.

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

63J. Membership

(1) The Committee consists of —

(a) the Commissioner ex officio; and

(b) 8 other members or such other number of persons as

may be prescribed, appointed by the Minister in

accordance with the regulations.

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

Chairperson.

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

of 2019 s. 7.]

63K. Functions

The functions of the Committee are to advise the Minister and

the Commissioner on —

(a) the activities and policies of the Department as they

affect consumers; and

(b) current and emerging consumer issues; and

Fair Trading Act 2010

Administrative provisions Part 5

Advisory committees Division 3

s. 63L

page 45 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) research and education projects relating to consumers;

and

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

the Commissioner.

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

63L. Procedure

(1) The Committee may regulate its own procedure.

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

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

Subdivision 4 — Regulations prescribing committee procedures, etc.

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

63M. Regulations

(1) The regulations may provide for the constitution and operation

of the advisory committees established under this Division.

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

may —

(a) require that persons appointed as members of a

committee —

(i) possess particular expertise or qualifications; or

(ii) represent particular interest groups, industries or

occupations;

(b) provide for the number of members, the manner, and

terms and conditions of appointment, and the resignation

and removal of members of the committees;

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

(d) provide for the manner in which members of the

committees are to disclose interests;

(e) regulate the procedure for meetings of the committees,

including the quorum for meetings;

(f) provide for the remuneration of members of the

committees (other than a member ex officio).

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

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 1 Preliminary

s. 63

page 46 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 6 — Investigation and enforcement

Division 1 — Preliminary

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

63. Terms used

In this Part —

authorised person means —

(a) the Commissioner; and

(b) in relation to a power of the Commissioner under a

provision of this Act or any other Act, a person to whom

that power is delegated under section 60; and

(c) an investigator, or a police officer assisting in an

investigation under section 88D;

investigator means a person designated under section 64 as an

investigator;

motor vehicle has the meaning given in the Road Traffic

(Administration) Act 2008 section 4.

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

s. 102.]

64A. Authorised persons cannot be public officers under Criminal

Investigation Act 2006

The office held by an authorised person cannot be prescribed by

an Act or regulations under the Criminal Investigation Act 2006

section 9(1)(a).

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

Division 2 — Investigators

64. Designating people as investigators

The Commissioner may designate any of the following persons

as an investigator for the purposes of this Part —

(a) any person employed in the Department;

(b) any person who —

(i) is an officer of a Public Sector agency that

provides services to the Department; and

(ii) assists in the exercise of the Commissioner’s

functions under this Act;

Fair Trading Act 2010

Investigation and enforcement Part 6

Investigators Division 2

s. 65

page 47 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) any person engaged by the chief executive officer to

assist in the exercise of the Commissioner’s functions

under this Act.

65. Certificate of authority of investigator

(1) The Commissioner is to provide each investigator with a

document, signed by the Commissioner, certifying that the

person is entitled to exercise the powers of an investigator.

(2) A person to whom a document is provided under this section

and who ceases to be an investigator must return the document

to the Commissioner as soon as practicable.

(3) A person who contravenes subsection (2) without reasonable

excuse, the onus of proving which is on the person, commits an

offence.

Penalty: a fine of $1 000.

66. Certificate of authority to be produced on demand

An investigator must produce the document provided under

section 65 when demanded by a person in respect of whom the

investigator performs, has performed, or is proposing to perform

any function under this Act or another Act.

67. Persons assisting investigators

(1) Where an investigator is exercising any of the investigator’s

powers under this Part, a person (the assistant), including an

interpreter, may accompany the investigator to assist the

investigator if the investigator considers the assistance is

necessary.

(2) The assistant —

(a) may do such things and in such manner as the

investigator reasonably requires to assist the investigator

to exercise the investigator’s powers; but

(b) must not do anything that the investigator does not have

power to do, except as permitted under a warrant under

Division 3.

(3) Anything done lawfully by the assistant is taken for all purposes

to have been done by the investigator.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 68

page 48 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3 — General powers

68. Investigations and inquiries, Commissioner’s powers to

make

(1) The Commissioner may, of the Commissioner’s own motion,

make any investigation or inquiry that the Commissioner

considers necessary or expedient for the purposes of carrying

out the Commissioner’s functions under this Act or any other

Act.

(2) An authorised person may make an investigation or inquiry

under this section on behalf of the Commissioner.

69. Investigations and inquiries, powers for

(1) For the purposes of carrying out any investigation or inquiry in

the course of carrying out the Commissioner’s functions under

this Act or any other Act, an authorised person may —

(a) require any person —

(i) to give whatever information the authorised

person requires in relation to any matter the

subject of an investigation or inquiry; and

(ii) to answer any question put to the person in

relation to any matter the subject of an

investigation or inquiry;

and

(b) require any person to produce any document or thing

relating to an investigation or inquiry; and

(c) enter at all reasonable times and search any premises or

motor vehicle named in a warrant obtained in

accordance with this Division and exercise the powers

set out in the warrant; and

(d) make a copy or abstract of any document produced or

inspected under this section, or of any entry made in the

document.

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

(a) may be made orally or by notice in writing served on the

person required to give information or answer a

question, as the case requires; and

(b) must specify the time at or within which the information

is to be given or the question is to be answered, as the

case requires; and

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 69

page 49 [This compilation shows amendments proposed by Bill No. 19-2.]

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

required —

(i) be given orally or in writing; and

(ii) be given at or sent or delivered to any place

specified in the requirement; and

(iii) in the case of written information or answers, be

sent or delivered by any means specified in the

requirement; and

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

declaration.

(3) An authorised person may administer an oath or affirmation or

witness a statutory declaration for the purposes of

subsection (2)(c)(iv).

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

(a) must be made by notice in writing served on the person

required to produce a document or thing, unless the

circumstances require the authorised person to have

immediate access to the document or thing, in which

case the requirement may be given orally; and

(b) must specify the time at or within which the document

or thing is to be produced; and

(c) may, by its terms, require that the document or thing

required be produced —

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

(ii) by any means specified in the requirement.

(5) Where, under subsection (1)(a) or (b), an authorised person

orally requires a person to give any information, answer any

question or produce any document or thing, the authorised

person must inform the other person that the other person is

required, under this Act or another Act, to give the information,

answer the question or produce the document or thing, as the

case requires.

(6) Where, under subsection (1)(a) or (b), a person is required by

notice in writing to give any information, answer any question

or produce any document or thing, the notice must state that the

person is required, under this Act or another Act, to give the

information, answer the question or produce the document or

thing, as the case requires.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 70

page 50 [This compilation shows amendments proposed by Bill No. 19-2.]

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

(1) An interview conducted by an authorised person under

section 69(1)(a) must be conducted in private if —

(a) the authorised person considers it appropriate; or

(b) the person being interviewed so requests.

(2) Subsection (1) does not limit the operation of section 67 or

prevent a representative of the person being interviewed from

being present at the interview.

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

(a) the authorised person; or

(b) the person being interviewed.

(4) If subsection (1) is invoked during an interview, the subsection

applies to the remainder of the interview.

71. Warrant to enter premises or motor vehicle

(1) If an authorised person considers in a particular case that there

are reasonable grounds for believing that entry to premises or a

motor vehicle is necessary for the purposes of carrying out any

investigation or inquiry in the course of carrying out the

Commissioner’s functions under this Act or any other Act, the

authorised person may apply to a magistrate or justice of the

peace for a warrant to be issued in respect of those premises or

that motor vehicle.

(2) An application for a warrant must —

(a) be in writing; and

(b) be accompanied by a notice in writing from the

authorised person stating that the person considers in the

particular case that there are reasonable grounds for

believing that entry to premises or a motor vehicle is

necessary for the purposes of carrying out an

investigation or inquiry in the course of carrying out the

Commissioner’s functions under this Act or another Act;

and

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

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

entered.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 72

page 51 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) A magistrate or justice of the peace to whom an application is

made under this section must refuse it if —

(a) the application does not comply with the requirements of

this Act; or

(b) when required to do so by the magistrate or justice of the

peace, the applicant does not give to the magistrate or

justice of the peace more information about the

application.

(4) The information in an application or given to a magistrate or

justice of the peace under this section must be verified before

the magistrate or justice of the peace on oath or affirmation or

by affidavit, and the magistrate or justice of the peace may for

that purpose administer an oath or affirmation or take an

affidavit.

72. Warrants wanted urgently, may be obtained by telephone

etc.

(1) If an authorised person requires a warrant urgently, or a

magistrate or justice of the peace is not available within a

reasonable distance of the authorised person, the authorised

person may apply to a magistrate or justice of the peace by

telephone, fax or other electronic means for a warrant under

section 71.

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

(a) require communication by voice to the extent that it is

practicable in the circumstances; and

(b) make a recording of the whole or any part of any such

communication by voice.

(3) Before applying for the warrant, the authorised person must

prepare an affidavit that sets out the grounds on which the

warrant is sought.

(4) If it is necessary to do so, the authorised person may apply for

the warrant before the affidavit is sworn or affirmed.

(5) The magistrate or justice of the peace may complete and sign

the same warrant that the magistrate or justice of the peace

would issue under section 74 if the application had been made

under section 71 if the magistrate or justice of the peace is

satisfied that there are reasonable grounds for issuing the

warrant, after having —

(a) considered the terms of the affidavit; and

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 73

page 52 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) received such further information (if any) as the

magistrate or justice of the peace requires concerning the

grounds on which the issue of the warrant is sought.

73. Warrants by telephone etc., further provisions for

(1) If a magistrate or justice of the peace completes and signs a

warrant under section 72(5) —

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

(i) tell the authorised person what the terms of the

warrant are; and

(ii) tell the authorised person the day on which and

the time at which the warrant was signed; and

(iii) tell the authorised person the day (not more than

one week after the magistrate or justice of the

peace completes and signs the warrant) on which

the warrant ceases to have effect; and

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

warrant;

and

(b) the authorised person must —

(i) complete a form of warrant in the same terms as

the warrant completed and signed by the

magistrate or justice of the peace; and

(ii) write on the form the name of the magistrate or

justice of the peace and the day on which and the

time at which the warrant was signed.

(2) The authorised person must also, not later than the day after the

day of expiry or execution of the warrant, whichever is the

earlier, send to the magistrate or justice of the peace —

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

and

(b) the affidavit referred to in section 72(3), which must

have been duly sworn or affirmed.

(3) When the magistrate or justice of the peace receives those

documents, the magistrate or justice of the peace must —

(a) attach them to the warrant that the magistrate or justice

of the peace completed and signed; and

(b) deal with them in the way in which the magistrate or

justice of the peace would have dealt with them if the

application had been made under section 71.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 74

page 53 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) A form of warrant duly completed under subsection (1)(b) is

authority for the same powers as are authorised by the warrant

signed by the magistrate or justice of the peace.

(5) If a magistrate or justice of the peace completes and signs a

warrant under section 72(5), in any proceedings a court must

assume, unless the contrary is proved, that the exercise of a

power was not authorised by the warrant if —

(a) it is material, in those proceedings, for the court to be

satisfied that the exercise of the power was authorised

by this section; and

(b) the warrant is not produced in evidence.

74. Warrants, issue and effect of

(1) A magistrate or justice of the peace to whom an application is

made under section 71 may issue a warrant if satisfied that the

authorised person has reasonable grounds for believing that

entry and inspection of the premises or motor vehicle are

necessary for the purposes of carrying out an investigation or

inquiry under this Act or another Act.

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

the warrant is issued —

(a) to enter the premises or motor vehicle named in the

warrant and search the premises or motor vehicle and

any thing that is found on the premises or in or on the

motor vehicle; and

(b) to inspect documents and other things, and take copies

or extracts from documents found on the premises or in

or on the motor vehicle; and

(c) to inspect, examine, take measurements of, or conduct

tests on, any thing found on the premises, or in or on the

motor vehicle, that is relevant to the investigation or

inquiry; and

(d) to take and remove for examination, analysis or testing a

sample of any thing found on the premises, or in or on

the motor vehicle, that is relevant to the investigation or

inquiry, without paying for the sample; and

(e) to inspect any service carried on in the premises or from

the motor vehicle; and

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

(g) to take photographs, sound and video recordings and

drawings of the premises or motor vehicle searched, and

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 75

page 54 [This compilation shows amendments proposed by Bill No. 19-2.]

of any thing found in those premises or in or on that

motor vehicle, if the person exercising the power has

reasonable grounds for believing that the photographs or

sound or video recordings or drawings may be relevant

to the purposes of the entry and search; and

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

(3) The warrant must state —

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

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

and

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

be entered.

(4) The magistrate or justice of the peace who issues a warrant must

cause a record to be made of particulars of the grounds that the

magistrate or justice of the peace has relied on to justify the

issue of the warrant.

75. Warrants, powers under to obtain access information for

computers etc.

(1) In this section —

access information includes access codes, passwords, and

encryption keys, and any related information that enables access

to a computer or other data storage device;

specified person means a person who —

(a) is the owner or lessee of the computer or other data

storage device, or is in possession or control of the

computer or other data storage device, an employee of

any of the above, or any service provider who provides

service to the above and holds access information; and

(b) has relevant knowledge of —

(i) the computer or a computer network of which the

computer or other data storage device forms a

part; or

(ii) measures applied to protect data held in, or

accessible from, the computer or other data

storage device.

(2) A person executing a warrant under section 74 may require a

specified person to provide access information and other

information or assistance that is reasonable and necessary to

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 76

page 55 [This compilation shows amendments proposed by Bill No. 19-2.]

allow the person executing the warrant to access data held in, or

accessible from —

(a) a computer that is on the premises or in or on the motor

vehicle named in the warrant; or

(b) any other data storage device that is on the premises or

in or on the motor vehicle named in the warrant.

76. Warrants, further powers under

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

the warrant is issued —

(a) to bring and use in the premises or in or on the motor

vehicle named in the warrant any equipment, to use any

equipment found in the premises or in or on the motor

vehicle, and to extract any electricity or other form of

energy from the premises or vehicle to operate the

equipment that it is reasonable to use in the

circumstances, for the purposes of executing the

warrant; and

(b) to access and copy intangible material from computers

and other data storage devices located at or accessible

from the premises or vehicle named in the warrant

(including copying by means of previewing, cloning, or

other forensic methods either before or after removal for

examination); and

(c) to use any reasonable measures to —

(i) gain access to any computer or other data storage

device that is at the premises or in or on the

vehicle named in the warrant, or that can be

accessed from a computer or other data storage

device that is at those premises or in or on that

vehicle; and

(ii) create a forensic copy of any material in such a

computer or other data storage device.

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

77. Damage to equipment or data, compensation for

(1) This section applies where —

(a) either —

(i) damage is caused to equipment as a result of it

being operated as mentioned in section 76; or

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 78

page 56 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) the data recorded on or accessible from the

equipment is damaged;

and

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

(i) insufficient care being exercised in selecting the

person who was to operate the equipment; or

(ii) insufficient care being exercised by the person

operating the equipment.

(2) Where this section applies, the owner of the equipment or the

user of data recorded on or accessible from the equipment is

entitled to compensation for the damage.

(3) For the purposes of subsection (1), damage to data includes

damage by erasure of data or addition of other data.

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

Commissioner.

(5) In determining the amount of compensation payable, regard is to

be had to whether the occupier of the premises (or the person in

charge of the motor vehicle, as the case requires) and his or her

employees and agents, if they were available at the time, had

provided any warning or guidance as to the operation of the

equipment that was appropriate in the circumstances.

(6) Any compensation that is payable under this section is to be

charged to the Consolidated Account, and this Act, without

further appropriation, is sufficient authority for the payment of

the compensation.

78. Warrants, execution and duration of

(1) Entry authorised by a warrant under section 74 may be made

with whatever assistance and equipment is reasonably necessary

for the purpose for which entry is required.

(2) A person executing a warrant under section 74, and a person

assisting that person, may use any force that is reasonably

necessary for the execution of the warrant.

(3) A warrant authorising the entry and search of a motor vehicle

authorises the person executing the warrant to enter any place

where the person has reasonable grounds to believe that the

vehicle is, for the purpose of locating it and searching it.

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 79

page 57 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) Before entering any premises or motor vehicle under a warrant,

the person executing the warrant must show the person, if any,

who gives the person entry to the premises or motor vehicle —

(a) in the case of the Commissioner, a document signed by

the Minister and certifying that the person is the

Commissioner; and

(b) in the case of an authorised person other than the

Commissioner, a document signed by the Commissioner

and certifying that that person is an authorised person.

(5) The person executing the warrant must produce it for inspection

if asked by —

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

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

(6) When executing a warrant, an authorised person may require

any person who has the control of any premises, motor vehicle

or thing that the authorised person is authorised to enter or

inspect to furnish reasonable access to it and to give other

reasonable assistance.

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

following —

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

(b) if it is withdrawn by the magistrate or justice of the

peace who issued it;

(c) when it is executed.

79. Seizing things

(1) An authorised person may seize a document or other thing that

is produced or given in response to a requirement under this

Division, or that is found as the result of executing a warrant

under this Division.

(2) However, a document or other thing cannot be seized unless the

authorised person reasonably suspects that the document or

thing —

(a) is being, or has been, used to commit a breach of this

Act or another Act that confers functions on the

Commissioner; or

(b) may provide evidence of the commission of a breach of

this Act or another Act that confers functions on the

Commissioner.

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 80

page 58 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) As soon as practicable after the document or other thing is

seized, the authorised person must give a receipt for it to the

person from whom it was seized.

(4) The receipt must clearly describe the document or thing seized

and its condition.

(5) If, for any reason, it is not practicable to comply with

subsection (3), the authorised person must —

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

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

in a conspicuous position.

80. Seized things, copies of to be provided

(1) This section applies if the person executing a warrant relating to

premises seizes, under section 79 —

(a) a document, film, computer file or other thing that can

be readily copied; or

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

copied.

(2) Where this section applies, the person executing the warrant

must, if requested to do so by the occupier of the premises or

another person who apparently represents the occupier and who

is present when the warrant is executed, give a copy of the

document, film, computer file, thing or information to that

person as soon as practicable after the seizure.

(3) Subsection (2) does not apply if possession by the occupier of

the document, film, computer file, thing or information could

constitute an offence.

81. Seized things, access to by owner

(1) Until a thing seized under section 79 is forfeited or returned, the

person in whose custody the seized thing is must allow its

owner to inspect it and, if it is a document, to copy it.

(2) Subsection (1) does not apply if it is impracticable or would be

unreasonable to allow the inspection or copying.

82. Seized things, return of

(1) Where a document or other thing is seized under section 79, an

authorised person may retain the document or other thing for as

long as is reasonably necessary for the purposes of —

Fair Trading Act 2010

Investigation and enforcement Part 6

General powers Division 3

s. 83

page 59 [This compilation shows amendments proposed by Bill No. 19-2.]

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

relevant; and

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

relevant.

(2) When the retention of the document or other thing ceases to be

reasonably necessary for those purposes, the authorised person

must ensure that the document or other thing is delivered to the

person who appears to the authorised person to be entitled to

possession of it.

83. Seizure, SAT may review

(1) A person aggrieved by the seizure of any thing under section 79

may apply to the State Administrative Tribunal for a review of

the decision to seize the thing.

(2) In dealing with an application under subsection (1), the State

Administrative Tribunal may determine whether the thing

seized must be destroyed, disposed of, forfeited to the State,

restored to the person from whom it was seized or otherwise

dealt with.

(3) Subsection (2) does not limit the powers that the State

Administrative Tribunal Act 2004 gives the State Administrative

Tribunal.

(4) If an application under subsection (1) consists of or includes a

claim that legal professional privilege applies to the thing

seized, the State Administrative Tribunal hearing the application

is to be constituted by —

(a) a judicial member; and

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

appropriate.

(5) In subsection (4), each of these terms has the meaning given in

the State Administrative Tribunal Act 2004 section 3(1) —

judicial member

President

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

84. Seized things, forfeiture of

(1) The Commissioner may determine that a thing seized under

section 79 is forfeited to the State if the authorised person who

seized the thing —

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 3 General powers

s. 85

page 60 [This compilation shows amendments proposed by Bill No. 19-2.]

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

or

(b) cannot return the thing to the owner or other person

entitled to possession of the thing, after making

reasonable efforts.

(2) In applying subsection (1) —

(a) subsection (1)(a) does not require the authorised person

to make inquiries if it would be unreasonable to make

inquiries to find the owner; and

(b) subsection (1)(b) does not require the authorised person

to make efforts if it would be unreasonable to make

efforts to return the thing to the owner or other person

entitled to possession of the thing.

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

deciding —

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

(b) if making inquiries or efforts, what inquiries or efforts,

including the period over which they are made, are

reasonable.

85. Forfeited things, dealing with

(1) On the forfeiture of a thing to the State under section 84, the

thing becomes the property of the State, and may be dealt with

as the chief executive officer considers appropriate.

(2) Without limiting subsection (1), the chief executive officer may

cause the thing to be destroyed, sold or disposed of.

86. Privilege against self-incrimination doesn’t apply

(1) Where under section 69 a person is required to give any

information, or answer any question or produce any document

or thing —

(a) that person cannot refuse to comply with that

requirement on the ground that the information, answer,

document or thing may tend to incriminate the person or

render the person liable to any penalty; but

(b) the information or answer given, or document or thing

produced, by the person is not admissible in evidence in

any proceedings against the person other than

proceedings in respect of an offence against

section 88(1)(b).

Fair Trading Act 2010

Investigation and enforcement Part 6

Specific powers for enforcement of licensing and regulatory provisions

Division 4A

s. 87

page 61 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) This section is without prejudice to the provisions of the

Evidence Act 1906 section 11.

87. Information obtained, use of etc.

(1) Information concerning the affairs of a person that is obtained

under this Division by an authorised person may (for the

purposes of section 112 (which relates to the confidentiality of

information officially obtained)) be recorded, used or disclosed

on the basis that it has been acquired by the authorised person

for the purposes of this Act.

(2) Where an authorised person copies a document under

section 69(1)(d) or when executing a warrant —

(a) the authorised person may certify the copy as being a

true and accurate copy of the document; and

(b) in the absence of proof to the contrary, the certified copy

is to be accepted by any court or tribunal as evidence of,

and as having equal validity as, the original.

Division 4A — Specific powers for enforcement of licensing and

regulatory provisions

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

88A. Terms used

In this Division —

authorisation means a licence, registration, approval, permit,

exemption, certificate or other form of authority;

registration Act means an Act listed in Schedule 2;

regulated activity means an occupation or activity that can be

lawfully carried on only under an authorisation granted or

obtained under a registration Act;

regulated person means a person who carries on a regulated

activity.

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

88B. Investigations and inquiries for licensing and regulatory

purposes, Commissioner’s powers to make

(1) For the purposes of performing the Commissioner’s functions

under section 57A, the Commissioner may, of the

Commissioner’s own motion, make any investigation or inquiry

Fair Trading Act 2010

Part 6 Investigation and enforcement

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

s. 88C

page 62 [This compilation shows amendments proposed by Bill No. 19-2.]

that the Commissioner considers necessary or expedient for any

of the following purposes —

(a) determining any application or other matter before the

Commissioner;

(b) determining whether or not a regulated person is or has

been complying with —

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

(ii) the requirements of the registration Act under

which he or she holds an authorisation; or

(iii) a code of conduct applying to the regulated

person under a registration Act;

(c) determining whether or not any other cause exists that

might be considered by the Commissioner to be grounds

for disciplinary action against a regulated person under a

registration Act;

(d) detecting offences against a registration Act.

(2) An authorised person may make an investigation or inquiry

under this section on behalf of the Commissioner.

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

88C. Authorised persons’ powers for this Division

Authorised persons may exercise the powers set out in

Division 3 for the purposes of the performance of any function

under this Division.

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

88D. Police assistance with investigations and inquiries

(1) The Commissioner of Police must, at the request of the

Commissioner, arrange for one or more police officers —

(a) to make an investigation or inquiry relating to any

matter that is the subject of investigation or inquiry

under section 88B; and

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

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

(3) Where a police officer makes an investigation or inquiry or

report relating to any matter that is the subject of investigation

or inquiry under section 88B —

(a) in addition to any power, authority, and immunity of the

police officer apart from this Act, the police officer has

Fair Trading Act 2010

Investigation and enforcement Part 6

Specific powers for enforcement of licensing and regulatory provisions

Division 4A

s. 88E

page 63 [This compilation shows amendments proposed by Bill No. 19-2.]

the same powers, authorities, and immunities as an

investigator appointed under this Act has in respect of

the same matter; and

(b) for the purposes of section 66, it is sufficient if the

police officer identifies himself or herself as a police

officer to the person, if any, affording entry to the police

officer.

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

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

powers for

(1A) This section does not apply to the extent that the purpose of

exercising a power under subsection (1) is in relation to a

regulated activity carried on by a regulated person under the

Charitable Collections Act 1946.

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

in subsection (2) —

(a) during normal business hours, enter premises where the

business of a regulated person is being carried on,

without obtaining a warrant under section 74; and

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

is made.

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

(a) to determine whether or not a regulated person is or has

been complying with the conditions, if any, of their

authorisation;

(b) to determine whether or not a regulated person is or has

been complying with the requirements of the registration

Act under which he or she holds an authorisation;

(c) to determine whether or not a regulated person is or has

been complying with a code of conduct applying to the

registered person under a registration Act.

(3) An authorised person may invoke the powers in subsection (1)

even though an investigation is not under way in relation to any

particular regulated person.

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

of 2019 s. 28.]

Fair Trading Act 2010

Part 6 Investigation and enforcement

Division 4 Offences

s. 88

page 64 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 4 — Offences

88. Failing to cooperate with investigation

(1) A person commits an offence who, without reasonable excuse

(proof of which lies on the person), when required under

Division 3 or 4A to give any information, answer any question

or produce any document or thing —

(a) fails to give that information or answer that question at

or within the time specified in the requirement; or

(b) gives any information or answer that is false or

misleading in any material particular; or

(c) fails to produce that document or thing at or within the

time specified in the requirement.

Penalty: a fine of $10 000.

(2) It is a defence in any proceeding for an offence under

subsection (1)(a) or (c) for the accused to show —

(a) that, in the case of an alleged offence arising out of a

requirement made orally under section 69, the authorised

person did not, when making the requirement, inform

the accused that he or she was required under this Act or

the other Act that is relevant to give the information,

answer the question or produce the document or thing,

as the case requires; or

(b) that, in the case of an alleged offence arising out of a

requirement made by notice in writing under section 69,

the notice did not state that the accused was required

under this Act or the other Act that is relevant to give the

information, answer the question or produce the

document or thing, as the case requires; or

(c) that the time specified in the requirement did not give

the accused sufficient notice to enable him or her to

comply with the requirement; or

(d) that, in any case, the authorised person did not, before

making the requirement, have reasonable grounds to

believe that compliance with the requirement would

materially assist in the investigation or inquiry being

carried out.

[Section 88 amended: No. 58 of 2010 s. 9.]

Fair Trading Act 2010

Investigation and enforcement Part 6

Offences Division 4

s. 89

page 65 [This compilation shows amendments proposed by Bill No. 19-2.]

89. Obstructing authorised person

(1) A person must not prevent or attempt to prevent an authorised

person from entering premises or a motor vehicle in the exercise

of the authorised person’s powers under section 69.

Penalty: a fine of $2 000.

(2A) A person must not prevent or attempt to prevent an authorised

person from entering business premises in the exercise of the

authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(2) A person must not obstruct or impede an authorised person in

the exercise of the authorised person’s powers under section 69

or 88E.

Penalty: a fine of $2 000.

(3) A person must comply with a requirement to assist an

authorised person executing a warrant under section 74 when

requested to do so under section 75(2).

Penalty: a fine of $2 000.

(4) A person must comply with a requirement to furnish reasonable

access to a place or motor vehicle, or to give other reasonable

assistance to an authorised person under section 78(6).

Penalty: a fine of $2 000.

(5A) A person must comply with a requirement to furnish reasonable

access to business premises, or to give other reasonable

assistance to an authorised person, when the authorised person

is exercising the authorised person’s powers under section 88E.

Penalty: a fine of $2 000.

(5) For the purposes of this section, a reference to an authorised

person includes an assistant accompanying an investigator in

accordance with section 67.

[Section 89 amended: No. 58 of 2010 s. 10.]

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 1 Preliminary

s. 90

page 66 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 7 — Criminal and civil proceedings

Division 1 — Preliminary

90. Term used: person involved in a contravention of a

provision of this Act

A reference in this Part to a person involved in a contravention

of a provision of this Act is to be read as a reference to a person

who —

(a) has aided, abetted, counselled or procured the

contravention; or

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

otherwise, the contravention; or

(c) has been in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention; or

(e) has attempted to contravene the provision, or to do any

act of a kind referred to in paragraph (a), (b), (c) or (d).

[Section 90 amended: No. 11 of 2013 s. 13.]

Division 2 — Criminal proceedings

91. Time limit for commencing proceedings

Proceedings for an offence against this Act may be commenced

within 3 years after the alleged commission of the offence.

92. Who may institute criminal proceedings

(1) Prosecutions for offences against this Act may be instituted by

the Commissioner or by a person authorised in writing by the

Commissioner.

(2) No other person may institute a prosecution for an offence

against this Act unless written consent to the institution of the

prosecution is given by —

(a) the Commissioner; or

(b) a person authorised in writing by the Commissioner to

give consents under this section.

(3) In proceedings for an offence against this Act, a document

giving consent to the institution of a prosecution and purporting

to have been signed by the Commissioner, or by an authorised

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Criminal proceedings Division 2

s. 93

page 67 [This compilation shows amendments proposed by Bill No. 19-2.]

person, is evidence of that consent without proof of the

signature.

93. Court of summary jurisdiction to be constituted by

magistrate

A court of summary jurisdiction dealing with an offence under

this Act is to be constituted by a magistrate.

94. Courts’ other powers in criminal proceedings

(1) Where proceedings in the Supreme Court or the District Court

are taken against a person for contravening, or being involved in

a contravention of, a provision of this Act, the Court, in addition

to dealing with the offence charged, may —

(a) grant an injunction under section 99 or 100 against the

person in relation to —

(i) the conduct that constitutes, or is alleged to

constitute, the contravention; or

(ii) other conduct of that kind;

and

(b) make an order under section 105 in relation to the

contravention.

(2) If a person is convicted of an offence against this Act, the court

by which the conviction was effected may order the offender to

reimburse the Department for the cost of purchasing or testing

any goods to which the conviction relates.

(3) Where a person is, by any conviction or order of a court,

adjudged to pay a fine, or costs or other sum of money in

respect of an offence against this Act, the court by which the

conviction or order was effected or made may —

(a) exercise any power that the court has apart from this

section; or

(b) on the application of the Minister or the Commissioner,

order that the amount unpaid be recoverable as if it were

a judgment debt payable by the defaulter to the Crown

under a judgment entered up in the court.

95. Vicarious liability of directors, employers etc.

(1) Where a corporation within the meaning of the Corporations

Act 2001 (Commonwealth) or any other body of persons,

corporate or unincorporate, is convicted of an offence against

this Act, each person who, at the time of the commission of that

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 2 Criminal proceedings

s. 95

page 68 [This compilation shows amendments proposed by Bill No. 19-2.]

offence, was a director of the corporation or was the manager,

secretary or other similar officer of that body, or who purported

to act in any of those capacities, is also guilty of an offence

unless the person proves —

(a) that the offence was committed without the person’s

knowledge, or that the person did not authorise or permit

the commission of the offence; and

(b) that the person was not in a position to influence the

conduct of that corporation or body or, being in such a

position, could not by the exercise of reasonable

diligence have prevented the commission of the offence.

(2) A person who is guilty of an offence by virtue of subsection (1)

is liable to a penalty not exceeding the penalty prescribed for the

offence of which the corporation or body was convicted.

(3) Where the affairs of a body of persons are managed by its

members, subsection (1) applies in relation to the acts and

defaults of a member in connection with the member’s function

of management as if the person were the manager of that body.

(4) Where the employee or agent of a person (person A) is

convicted of an offence against this Act, each person (person B)

who, at the time of the commission of the offence, was

person A’s employer or principal —

(a) is also guilty of an offence, unless person B proves that

person B could not by the exercise of reasonable

diligence have prevented the commission of the offence

of which person A was convicted; and

(b) is liable to a penalty not exceeding the penalty

prescribed for the offence of which person A was

convicted.

(5) Where a person has committed an offence against the Australian

Consumer Law (WA) Part 2-1 or Part 2-2 or Part 3-1 (other than

Divisions 2 and 3), or would have committed an offence but for

the fact that the person could establish a defence under

section 96 or 97, and the contravention, or what would have

constituted the contravention, was due to the act or default of

another person —

(a) that other person —

(i) is also guilty of an offence and liable to the same

penalty as is provided for the offence against the

Australian Consumer Law (WA) Part 2-1 or

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Criminal proceedings Division 2

s. 96

page 69 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2-2 or Part 3-1 (other than Divisions 2

and 3); and

(ii) may be charged and convicted of the offence,

whether or not proceedings are taken against the

first-mentioned person for the offence against the

Australian Consumer Law (WA) Part 2-1 or

Part 2-2 or Part 3-1 (other than Divisions 2

and 3);

and

(b) the first-mentioned person is a competent and

compellable witness in any proceedings taken against

that other person in respect of the offence.

96. Defence: reasonable mistake of fact

(1) In a prosecution under this Part for an offence against this Act,

it is a defence if the accused establishes that the contravention in

respect of which the proceeding was instituted was due to

reasonable mistake of fact, including a mistake of fact caused by

reasonable reliance on information supplied by another person.

(2) However, subsection (1) does not apply in relation to

information relied upon by the accused that was supplied to the

accused by another person who was, at the time when the

contravention occurred —

(a) an employee or agent of the accused; or

(b) if the accused is a body corporate, a director, employee

or agent of the accused.

(3) If a defence provided by subsection (1) involves an allegation

that a contravention was due to reliance on information supplied

by another person, the accused is not entitled to rely on that

defence unless —

(a) the court gives leave; or

(b) the accused has, not later than 7 days before the day on

which the hearing of the proceeding commences, served

on the person who instituted the proceeding a notice in

writing giving whatever information the accused then

had that would identify or assist in identifying the other

person.

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 2 Criminal proceedings

s. 97

page 70 [This compilation shows amendments proposed by Bill No. 19-2.]

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

(1) In a prosecution under this Part for an offence against this Act,

it is a defence if the accused establishes that —

(a) the contravention in respect of which the proceeding was

instituted was due to —

(i) the act or default of another person; or

(ii) an accident; or

(iii) some other cause beyond the accused’s control;

and

(b) the accused took reasonable precautions and could not

by the exercise of due diligence have prevented the

commission of the offence.

(2) However, subsection (1) does not apply in relation to the act or

default of another person who was, at the time when the

contravention occurred —

(a) an employee or agent of the accused; or

(b) if the accused is a body corporate, a director, employee

or agent of the accused.

(3) If a defence provided by subsection (1) involves an allegation

that a contravention was due to the act or default of another

person, the accused is not entitled to rely on that defence

unless —

(a) the court gives leave; or

(b) the accused has, not later than 7 days before the day on

which the hearing of the proceeding commences, served

on the person who instituted the proceeding a notice in

writing giving whatever information the accused then

had that would identify or assist in identifying the other

person.

98. Defence: publication of advertisements in ordinary course of

business

In a proceeding under this Part in relation to a contravention of

this Act committed by the publication of an advertisement, it is

a defence if it is established —

(a) that the accused is a person whose business it is to

publish or arrange for the publication of advertisements;

and

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 99

page 71 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) that the accused received the advertisement for

publication in the ordinary course of business; and

(c) that the accused did not know and had no reason to

suspect that its publication would amount to a

contravention of this Act.

Division 3 — Civil proceedings

99. Injunctions to prevent or stop contraventions of Act

(1) The Supreme Court or the District Court, on the application of

the Minister, the Commissioner or any other person, may grant

an injunction in whatever terms the Court determines to be

appropriate where the Court is satisfied that a person —

(a) has engaged, or is proposing to engage, in conduct that

constitutes or would constitute a contravention of a

provision of this Act; or

(b) is involved in a contravention of a provision of this Act.

(2) The power of the Court to grant an injunction restraining a

person (person A) from engaging in conduct may be

exercised —

(a) whether or not it appears to the Court that person A

intends to engage again, or to continue to engage, in

conduct of that kind; and

(b) whether or not person A has previously engaged in

conduct of that kind; and

(c) whether or not there is an imminent danger of

substantial damage to any person if person A engages in

conduct of that kind.

100. Injunctions to prevent etc. other contraventions

(1) The Supreme Court or the District Court, on the application of

the Commissioner, may grant an injunction in whatever terms

the Court determines to be appropriate where the Court is

satisfied that a person has engaged, or is proposing to engage, in

conduct that constitutes, or would constitute, or is involved in, a

contravention of —

(a) an interim ban or a permanent ban under the Australian

Consumer Law (WA) Part 3-3 Division 2; or

(b) a provision of any other legislation administered by the

Minister or of an order made under any such legislation,

being a provision relevant to the alleged contravention;

or

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 101

page 72 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) a provision of a prescribed code of practice in force

under Part 4 in respect of which the Commissioner has

applied to the State Administrative Tribunal under

section 47; or

(d) a provision of an order of the State Administrative

Tribunal under section 47.

(2) If the Court is satisfied, on the application of the Commissioner,

that a person has engaged in conduct constituting, or is involved

in, a contravention of a provision of this Act, the Court may

grant an injunction requiring that person to take specified action

to remedy any adverse consequence of that conduct,

including —

(a) an order requiring that person or a person involved in the

contravention to disclose, in the way and to the persons

specified in the order, such information as is so

specified, being information that the person has

possession of or access to; or

(b) an order requiring the person or a person involved in the

contravention to publish, at the person’s own expense

and in the way specified in the order, an advertisement

in the terms specified in, or determined in accordance

with, the order.

101. Injunctions, general provisions about

(1) An injunction granted under this Division may be, or include, an

injunction restraining a person from carrying on a business of

supplying goods or services (whether or not as part of, or

incidental to, the carrying on of another business) —

(a) for a specified period; or

(b) except on specified terms and conditions.

(2) The power of the Court to grant an injunction under this

Division requiring a person to do an act or thing may be

exercised —

(a) whether or not it appears to the Court that the person

intends to refuse or fail again, or to continue to refuse or

fail, to do that act or thing; and

(b) whether or not the person has previously refused or

failed to do that act or thing; and

(c) whether or not there is an imminent danger of

substantial damage to any person if the first-mentioned

person refuses or fails to do that act or thing.

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 102

page 73 [This compilation shows amendments proposed by Bill No. 19-2.]

102. Interim injunctions

(1) An interim injunction may be granted under this Division

pending final determination of the application.

(2) Where the Minister or the Commissioner makes an application

to the Court for the grant of an injunction under this Division,

the Court must not require the applicant or any other person, as

a condition of granting an interim injunction, to give any

undertakings as to damages or costs.

(3) If, in a case to which subsection (2) does not apply, the Court

would, but for this subsection, require a person to give an

undertaking as to damages or costs, then —

(a) if the Minister gives the undertaking, the Court must

accept the undertaking by the Minister; and

(b) the Court must not require a further undertaking from

any other person.

103. Final injunction may be granted if parties consent

A final injunction may, by consent of the parties, be granted

under this Division without proof that proper grounds for the

injunction exist.

104. Injunction may be rescinded or varied

An injunction under this Division may be rescinded or varied at

any time.

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

proceedings

(1) Without limiting the generality of section 99 or 100, if, in a

proceeding instituted under this Part, or for an offence against

this Act, the Supreme Court or the District Court is satisfied that

a person has suffered, or is likely to suffer, loss or damage by

reason of conduct of another person that contravened a

provision of this Act, the Court may make such order or orders

as the Court thinks appropriate against the person who engaged

in the conduct or a person who was involved in the

contravention for the purpose of compensating the

first-mentioned person wholly or in part for the loss or damage

or of preventing or reducing the extent of the loss or damage.

(2) The Court may make an order under this section whether or not

an injunction under this Division or any other relief is granted or

any other order is made in the proceedings.

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 105

page 74 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) Whether or not other proceedings have been instituted under

this Act in relation to a contravention, the Court may make

orders under this section —

(a) on the application of a person who has suffered, or is

likely to suffer, loss or damage by reason of the

contravention; or

(b) on the application of the Commissioner on behalf of one

or more such persons made with the written consent of

each such person.

(4) The orders that may be made under this section include the

following —

(a) an order declaring the whole or any part of a contract

made between the person who suffered, or is likely to

suffer, the loss or damage and the person who engaged

in the conduct or a person who was involved in the

contravention constituted by the conduct, or of a

collateral arrangement relating to such a contract, to be

void and, if the Court thinks fit, to have been void from

its beginning or at all times on and after such date,

before the date on which the order is made, as is

specified in the order;

(b) an order varying such a contract or arrangement in such

manner as is specified in the order and, if the Court

thinks fit, declaring the contract or arrangement to have

had effect as so varied on and after such date, before the

date on which the order is made, as is so specified;

(c) an order refusing to enforce any or all of the provisions

of such a contract or arrangement;

(d) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct to refund

money or return property to the person who suffered the

loss or damage;

(e) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct to pay to the

person who suffered the loss or damage the amount of

the loss or damage;

(f) an order directing the person who engaged in the

conduct or a person who was involved in the

contravention constituted by the conduct, at the person’s

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 106

page 75 [This compilation shows amendments proposed by Bill No. 19-2.]

own expense, to supply specified services to the person

who suffered, or is likely to suffer, the loss or damage;

(g) an order, in relation to an instrument creating or

transferring an interest in land, directing the person who

engaged in the conduct or a person who was involved in

the contravention constituted by the conduct to execute

an instrument that —

(i) varies, or has the effect of varying, the

first-mentioned instrument; or

(ii) terminates or otherwise affects, or has the effect

of terminating or otherwise affecting, the

operation or effect of the first-mentioned

instrument.

(5) The powers conferred on the Supreme Court and the District

Court under this section in relation to a contract or arrangement

do not affect any powers that any other court may have in

relation to the contract or arrangement in proceedings instituted

in that other court in respect of the contract or arrangement.

106. Supreme and District Courts’ powers to prohibit payments,

transfers of property etc.

(1) In this section, a person (the first person) is an associate of

another person if —

(a) the first person holds money or other property on behalf

of the other person; or

(b) if the other person is a body corporate, the first person is

a wholly-owned subsidiary (within the meaning of the

Corporations Act 2001 (Commonwealth)) of the other

person.

(2) A Court may, on the application of the Minister or the

Commissioner, make an order or orders of the kind specified in

subsection (4) if —

(a) proceedings of a kind referred to in subsection (3) have

been taken against a person, or proceedings of a kind

referred to in subsection (3)(d) may be taken against a

person; and

(b) the Court is satisfied that it is necessary or desirable to

make the order or orders for the purpose of preserving

money or other property held by, or on behalf of, the

person if the person is liable or may become liable under

this Act —

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 3 Civil proceedings

s. 106

page 76 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) to pay moneys by way of a fine, damages,

compensation, refund or otherwise; or

(ii) to transfer, sell or return other property;

and

(c) the Court is satisfied that the making of the order or

orders will not unduly prejudice the rights and interests

of any other person.

(3) For the purposes of subsection (2)(a), the kinds of proceedings

taken against the person are as follows —

(a) proceedings in the Supreme Court or the District Court

against the person for an offence against this Act;

(b) an application under section 99 or 100 for an injunction

against the person in relation to a contravention of a

provision of this Act;

(c) an action under the Australian Consumer Law (WA)

section 236(1) against the person in relation to a

contravention of a provision of this Act;

(d) an application for an order under section 105 against a

person in relation to a contravention of a provision of

this Act.

(4) The Court may make the following orders under subsection (2)

in relation to money or other property held by, or on behalf of, a

person (the respondent) —

(a) an order prohibiting, either absolutely or subject to

conditions, a person who is indebted to the respondent,

or to an associate of the respondent, from making a

payment, in total or partial discharge of the debt —

(i) to the respondent; or

(ii) to another person at the direction or request of

the respondent;

(b) an order prohibiting, either absolutely or subject to

conditions, a person who is holding money or other

property on behalf of the respondent, or on behalf of an

associate of the respondent —

(i) from paying all or any of the money to the

respondent, or to another person at the direction

or request of the respondent; or

(ii) from transferring the other property to the

respondent, or to another person at the direction

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Civil proceedings Division 3

s. 107

page 77 [This compilation shows amendments proposed by Bill No. 19-2.]

or request of the respondent, or otherwise parting

with possession of that property;

(c) an order prohibiting, either absolutely or subject to

conditions, the taking or sending by any person of

money of the respondent, or of an associate of the

respondent, to a place outside the State;

(d) an order prohibiting, either absolutely or subject to

conditions, the taking, sending or transfer by any person

of other property of the respondent, or of an associate of

the respondent, to a place outside the State;

(e) if the respondent is a natural person, an order appointing

a receiver or trustee of the property, or of part of the

property, of the respondent with such powers as are

specified in the order.

(5) If the Court makes an order under this section, the order

operates —

(a) for a period specified in the order (which must not be

longer than 30 days if the application for the order was

made in the absence of the person against whom the

order is sought); or

(b) if proceedings in relation to which the order is made are

concluded before the end of that period, until the

conclusion of those proceedings.

(6) This section —

(a) has effect subject to the Bankruptcy Act 1966

(Commonwealth); and

(b) does not affect any other powers of the Supreme Court

or the District Court.

107. Contravening s. 106 order, offence

A person who contravenes or fails to comply with an order by

the Supreme Court or the District Court under section 106 that

is applicable to the person is guilty of a crime.

Penalty:

(a) in the case of a body corporate, a fine of $1 100 000;

(b) in the case of a person other than a body corporate, a

fine of $220 000.

Summary conviction penalty: a fine of $36 000.

[Section 107 amended: No. 11 of 2013 s. 14.]

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 4 Further provisions relating to proceedings

s. 108

page 78 [This compilation shows amendments proposed by Bill No. 19-2.]

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

evidence in others

(1) In an action against a person under the Australian Consumer

Law (WA) section 236(1) —

(a) a finding of a fact by a court, or an admission of a fact

by the person, in proceedings to which subsection (3)

applies is prima facie evidence of that fact; and

(b) the finding or admission may be proved by production

of a document under the seal of the court from which the

finding or admission appears.

(2) In proceedings for an order against a person under

section 105(3) or the Australian Consumer Law (WA)

section 237(1), 238(1) or 239(1) —

(a) a finding of a fact by a court, or an admission of a fact

by the person, in proceedings to which subsection (3)

applies is prima facie evidence of that fact; and

(b) the finding or admission may be proved by production

of a document under the seal of the court from which the

finding or admission appears.

(3) This subsection applies to proceedings under section 99 or 100,

or the Australian Consumer Law (WA) section 228, 232, 246,

247 or 248, or for an offence against this Act, in which the

person has been found to have contravened, or to have been

involved in a contravention of, a provision of the Australian

Consumer Law (WA) Chapter 2, 3 or 4.

[Section 108 amended: No. 26 of 2019 s. 8.]

Division 4 — Further provisions relating to proceedings

109. State of mind of person, meaning of in s. 110 and 111

A reference in sections 110 and 111 to the state of mind of a

person includes a reference to —

(a) the knowledge, intention, opinion, belief or purpose of

the person; and

(b) the person’s reasons for that intention, opinion, belief or

purpose.

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

(1) Where, in a proceeding under this Part or the Australian

Consumer Law (WA) in respect of conduct that is engaged in by

a body corporate and to which this Part or the Australian

Fair Trading Act 2010

Criminal and civil proceedings Part 7

Further provisions relating to proceedings Division 4

s. 111

page 79 [This compilation shows amendments proposed by Bill No. 19-2.]

Consumer Law (WA) applies, it is necessary to establish the

state of mind of the body corporate, it is sufficient to show —

(a) that a director, employee or agent of the body corporate

engaged in that conduct within the scope of the person’s

actual or apparent authority; and

(b) that the director, employee or agent had that state of

mind.

(2) Conduct of the kind set out in paragraph (a) or (b) that is

engaged in on behalf of a body corporate is to be treated, for the

purposes of this Act, as having been engaged in by the body

corporate as well —

(a) conduct by a director, employee or agent of the body

corporate within the scope of the person’s actual or

apparent authority; or

(b) conduct by any other person at the direction or with the

consent or agreement (whether express or implied) of a

director, employee or agent of the body corporate, if the

giving of the direction, consent or agreement is within

the scope of the actual or apparent authority of the

director, employee or agent.

111. State of mind and conduct of principal (not a body

corporate), establishing

(1) Where, in a proceeding under this Part or the Australian

Consumer Law (WA) in respect of conduct that is engaged in by

a person (the principal) other than a body corporate and to

which this Part or the Australian Consumer Law (WA) applies, it

is necessary to establish the state of mind of the principal, it is

sufficient to show —

(a) that an employee or agent of the principal engaged in

that conduct within the scope of the person’s actual or

apparent authority; and

(b) that the employee or agent had that state of mind.

(2) Conduct of the kind set out in paragraph (a) or (b) that is

engaged in on behalf of a person (the principal) other than a

body corporate is to be treated, for the purposes of this Act, as

having been engaged in by the principal as well —

(a) conduct by an employee or agent of the principal within

the scope of the person’s actual or apparent authority; or

Fair Trading Act 2010

Part 7 Criminal and civil proceedings

Division 4 Further provisions relating to proceedings

s. 111

page 80 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) conduct by any other person, at the direction or with the

consent or agreement (whether express or implied) of an

employee or agent of the principal, if the giving of the

direction, consent or agreement is within the scope of

the actual or apparent authority of the employee or

agent.

Fair Trading Act 2010

Miscellaneous Part 8

s. 112

page 81 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 8 — Miscellaneous

112. Personal information obtained officially, when may be

divulged etc.

(1) In this section —

personal information means information concerning the affairs

of a person;

regulated person has the meaning given in section 88A.

(2) A person must not, either directly or indirectly, make a record

of, or divulge or communicate to any other person, any personal

information obtained by him or her by reason of his or her

office, position, employment or engagement under or for the

purposes of this Act.

Penalty: a fine of $20 000.

(3) Subsection (2) does not prohibit the recording, divulging or

communicating of any personal information —

(a) with the consent of the person to whom the information

relates, or each of them if there is more than one; or

(b) in a manner that could not reasonably be expected to

lead to the identification of any person to whom the

information relates; or

(c) for the purposes of performing a function under or in

connection with —

(i) this Act; or

(ii) an Act listed in Schedule 2;

or

(da) for the purposes of giving information to a body

established under a written law if —

(i) the information concerns the affairs of a

regulated person or former regulated person; and

(ii) the information is given in relation to the

performance by that body of a function under or

in connection with that written law;

or

(d) for the purposes of legal proceedings arising out of the

administration of this Act or another written law; or

(e) for the purpose of the investigation of any suspected

offence or the conduct of proceedings against any person

for any offence; or

Fair Trading Act 2010

Part 8 Miscellaneous

s. 113

page 82 [This compilation shows amendments proposed by Bill No. 19-2.]

(f) by the Commissioner for the purpose of making the

public aware of —

(i) investigations or inquiries being conducted into

the conduct of a regulated person, former

regulated person or purported regulated person,

and the results of those inquiries; and

(ii) disciplinary action being contemplated or

undertaken in relation to a regulated person,

former regulated person or purported regulated

person, and the outcome of that action.

(4) Nothing in this section affects the operation of the

Parliamentary Privileges Act 1891.

[Section 112 amended: No. 58 of 2010 s. 11; No. 23 of 2014

s. 13.]

113. Information obtained officially may be used for certain

other purposes and legislation

(1) This section applies to information that is obtained by a person

by reason of his or her office, position, employment or

engagement under or for the purposes of this Act.

(2) Without limiting section 112(3), the fact that information to

which this section applies is obtained in connection with the

performance of a particular function under this Act does not

prevent that information from being used or disclosed in

connection with the performance of —

(a) any other function under this Act; or

(b) any function under any other written law that is

administered through the Department.

114. Protection from liability for wrongdoing

(1) In this section —

(a) a reference to the doing of anything includes a reference

to an omission to do anything; and

(b) liability includes liability for defamation.

(2) A person is not liable for anything that the person has done, in

good faith, in the course of the operations of the Department or

the administration of this Act.

(3) The Crown is also relieved of any liability that it might

otherwise have had for another person having done anything as

described in subsection (2).

Fair Trading Act 2010

Miscellaneous Part 8

s. 115

page 83 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) The protection given by this section applies even though the

thing done as described in subsection (2) may have been capable

of being done whether or not this Act had been enacted.

(5) This section is subject to the Chattel Securities Act 1987

sections 24 and 25.

115. Protection from liability for publishing official statements

(1) In this section —

liability includes liability for defamation.

(2) This section applies to statements made or issued by a person in

the course of the operations of the Department or the

administration of this Act.

(3) A person is not liable for publishing, in good faith —

(a) a statement to which this section applies; or

(b) a fair report or summary of a statement to which this

section applies.

(4) Nothing in this section limits section 114.

116. Regulations

(1) The Governor may make regulations prescribing all matters that

are required or permitted by this Act to be prescribed, or are

necessary or convenient to be prescribed for giving effect to the

purposes of this Act.

(2) A regulation may create an offence punishable by a penalty of a

fine not exceeding $2 000.

(3) Without limiting subsection (1), regulations made under that

subsection may —

(a) prescribe calling hours with respect to unsolicited

consumer agreements under the Australian Consumer

Law (WA) section 73;

(b) provide that the Australian Consumer Law (WA)

Part 3-2 Division 2 (unsolicited consumer agreements)

does not apply, or provisions of that Division that are

specified in the regulations do not apply, to or in relation

to agreements of a kind specified in the regulations.

(4) Regulations made under subsection (3)(a) may alter the

operation of the Australian Consumer Law (WA) sections 73(1)

and 170(1).

Fair Trading Act 2010

Part 8 Miscellaneous

s. 116

page 84 [This compilation shows amendments proposed by Bill No. 19-2.]

(5) Regulations made under subsection (3)(b) may alter the

operation of the Australian Consumer Law (WA) Part 3-2

Division 2.

Fair Trading Act 2010

Transitional provisions Part 9

s. 117

page 85 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 9 — Transitional provisions

117. Regulations for transitional matters

(1) If there is not sufficient provision in this Act for dealing with a

transitional matter, regulations under this Act may prescribe all

matters that are required or necessary or convenient to be

prescribed for dealing with the matter.

(2) In subsection (1) —

transitional matter

(a) means a matter that needs to be dealt with for the

purpose of effecting the transition from the provisions of

the Consumer Affairs Act 1971, Door to Door Trading

Act 1987 and Fair Trading Act 1987 to the provisions of

this Act; and

(b) includes a saving or application matter.

(3) Regulations made under subsection (1) may provide that

specified provisions of a written law —

(a) do not apply to or in relation to any matter; or

(b) apply with specified modifications to or in relation to

any matter.

(4) If regulations under subsection (1) provide that a specified state

of affairs is taken to have existed, or not to have existed, on and

from a day that is earlier than the day on which the regulations

are published in the Gazette but not earlier than the day this

section comes into operation, the regulations have effect

according to their terms.

(5) In subsections (3) and (4) —

specified means specified or described in the regulations.

(6) If regulations contain a provision referred to in subsection (4),

the provision does not operate so as —

(a) to affect, in a manner prejudicial to any person (other

than the State), the rights of that person existing before

the day of publication of those regulations; or

(b) to impose liabilities on any person (other than the State

or an authority of the State) in respect of anything done

or omitted to be done before the day of publication of

those regulations.

(7) Regulations made under subsection (1) in relation to a matter

referred to in subsection (3) must be made within such period as

Fair Trading Act 2010

Part 9 Transitional provisions

s. 118

page 86 [This compilation shows amendments proposed by Bill No. 19-2.]

is reasonably and practicably necessary to deal with a

transitional matter that arises as a result of the enactment of this

Act.

118. Fair Trading (Product Information Standard)

Regulation 2005 Part 4 (builders plates for recreational

vessels), continuation of

(1) The Fair Trading (Product Information Standard)

Regulations 2005 (other than Parts 2 and 3) continue in force

after the commencement of this section as if those regulations

were an information standard under the Australian Consumer

Law (WA) Part 3-4, and may be enforced accordingly.

(2) The regulations continued in force by subsection (1) may be

repealed as if they were regulations made under section 116.

119. Orders made before 1 Jan 2011 recalling defective goods

etc., effect of

If an order under the Fair Trading Act 1987 section 54(2) has

effect immediately before the commencement of Part 10, that

order continues to have effect on and after that commencement

as if it were a recall notice issued under the Australian

Consumer Law (WA) section 122(1).

120. Delegations made before 1 Jan 2011, effect of

(1) If a delegation under the Consumer Affairs Act 1971 section 23

has effect immediately before the commencement of Part 10,

that delegation continues to have effect on and after that

commencement as if it had taken place under section 60.

(2) This section does not limit the Interpretation Act 1984 Part V.

121. Interpretation Act 1984, application of to expiring Acts

To avoid doubt, the provisions of the Interpretation Act 1984

(for example, sections 16(1), 36 and 38) about the repeal of

written laws and the substitution of other written laws for those

so repealed apply to the Consumer Affairs Act 1971, Door to

Door Trading Act 1987 and Fair Trading Act 1987 as if, on the

commencement of Part 10, those Acts were repealed and

re-enacted by this Act.

[Part 10 omitted under the Reprints Act 1984 s. 7(4)(e).]

Fair Trading Act 2010

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

page 87 [This compilation shows amendments proposed by Bill No. 19-2.]

Schedule 1 — Acts that override the Australian Consumer

Law (WA) Part 3-3

[s. 15]

[Heading inserted: No. 11 of 2013 s. 15.]

The following enactments are specified for the purpose of section 15(1)(a) —

Biosecurity and Agriculture Management Act 2007

Dangerous Goods Safety Act 2004

Firearms Act 1973

Food Act 2008

Health (Miscellaneous Provisions) Act 1911

Medicines and Poisons Act 2014

Mines Safety and Inspection Act 1994

Motor Vehicle Dealers Act 1973

Radiation Safety Act 1975

Road Traffic Act 1974

Road Traffic (Administration) Act 2008.

Road Traffic (Authorisation to Drive) Act 2008.

Road Traffic (Vehicles) Act 2012.

Trade Measurement Act 2006

Veterinary Chemical Control and Animal Feeding Stuffs Act 1976

Work Health and Safety Act 2020

[Schedule 1 amended: No. 24 of 2007 s. 23, 29, 61, 64, 75 and 86 (as

amended: No. 58 of 2010 s. 192(1)-(6) and (8)); No. 8 of 2012 s. 103;

No. 13 of 2014 s. 185; No. 19 of 2016 s. 138; No. 50 of 2016 s. 22;

No. 36 of 2020 s. 354.]

Fair Trading Act 2010

Schedule 2 Registration Acts

page 88 [This compilation shows amendments proposed by Bill No. 19-2.]

Schedule 2 — Registration Acts

[s. 88A]

[Heading inserted: No. 58 of 2010 s. 12.]

The following Acts are specified for the purposes of section 88A —

Charitable Collections Act 1946

Debt Collectors Licensing Act 1964

Employment Agents Act 1976

Land Valuers Licensing Act 1978

Motor Vehicle Dealers Act 1973

Motor Vehicle Repairers Act 2003

Real Estate and Business Agents Act 1978

Settlement Agents Act 1981

[Schedule 2 inserted: No. 58 of 2010 s. 12; amended: No. 11 of 2013

s. 16; No. 21 of 2014 s. 8; No. 25 of 2019 s. 29.]

Fair Trading Act 2010

Compilation table Notes

page 89 [This compilation shows amendments proposed by Bill No. 19-2.]

Notes This is a compilation of the Fair Trading Act 2010 and includes amendments made by

other written laws. For provisions that have come into operation, and for information

about any reprints, see the compilation table. For provisions that have not yet come into

operation see the uncommenced provisions table.

Compilation table

Short title Number

and year

Assent Commencement

Fair Trading Act 2010 57 of 2010 8 Dec 2010 s. 1 and 2: 8 Dec 2010

(see s. 2(a));

Act other than s. 1 and 2:

1 Jan 2011 (see s. 2(b) and

Gazette 24 Dec 2010 p. 6805)

Biosecurity and Agriculture

Management (Repeal and

Consequential Provisions)

Act 2007 s. 23, 29, 61, 64

75 and 86

24 of 2007

(as amended

by No. 58 of

2010

s. 192(2)-(6)

and (8))

12 Oct 2007 1 May 2013 (see s. 2(2) and

Gazette 5 Feb 2013 p. 823)

Acts Amendment (Fair

Trading) Act 2010 Pt. 2

58 of 2010 8 Dec 2010 1 Jul 2011 (see s. 2(c) and

Gazette 7 Jun 2011 p. 2057)

Reprint 1: The Fair Trading Act 2010 as at 3 Feb 2012 (includes amendments listed above

except those in the Biosecurity and Agriculture Management (Repeal and Consequential

Provisions) Act 2007)

Road Traffic Legislation

Amendment Act 2012 Pt. 4

Div. 21

8 of 2012 21 May 2012 27 Apr 2015 (see s. 2(d) and

Gazette 17 Apr 2015 p. 1371)

Fair Trading Amendment

Act 2013

11 of 2013 4 Oct 2013 s. 1 and 2: 4 Oct 2013

(see s. 2(a));

Act other than s. 1 and 2:

30 Nov 2013 (see s. 2(b) and

Gazette 29 Nov 2013 p. 5455)

Medicines and Poisons

Act 2014 s. 185

13 of 2014 2 Jul 2014 30 Jan 2017 (see s. 2(b) and

Gazette 17 Jan 2017 p. 403)

Travel Agents Amendment

and Expiry Act 2014 s. 8

21 of 2014 29 Aug 2014 25 Jan 2017 (see s. 2(c) and

Gazette 24 Jan 2017 p. 741)

Consumer Protection

Legislation Amendment

Act 2014 Pt. 4

23 of 2014 9 Oct 2014 19 Nov 2014 (see s. 2(b) and

Gazette 18 Nov 2014 p. 4315)

Public Health

(Consequential Provisions)

Act 2016 Pt. 3 Div. 12

19 of 2016 25 Jul 2016 24 Jan 2017 (see s. 2(1)(c) and

Gazette 10 Jan 2017 p. 165)

Statutes (Repeals) Act 2016

Pt. 4 Div. 2

50 of 2016 28 Nov 2016 29 Nov 2016 (see s. 2(b))

Reprint 2: The Fair Trading Act 2010 as at 22 Jun 2018 (includes amendments listed

above)

Consumer Protection

Legislation Amendment

Act 2019 Pt. 5

25 of 2019 24 Oct 2019 1 Jan 2020 (see s. 2(b) and

Gazette 24 Dec 2019 p. 4415)

Fair Trading Act 2010

Notes Uncommenced provisions table

page 90 [This compilation shows amendments proposed by Bill No. 19-2.]

Short title Number

and year

Assent Commencement

Fair Trading Amendment

Act 2019

26 of 2019 24 Oct 2019 25 Oct 2019 (see s. 2(b))

Work Health and Safety

Act 2020 Pt. 15 Div. 4

Subdiv. 3

36 of 2020 10 Nov 2020 31 Mar 2022 (see s. 2(1)(c) and

SL 2022/18 cl. 2)

Legal Profession Uniform

Law Application Act 2022

s. 424

9 of 2022 14 Apr 2022 1 Jul 2022 (see s. 2(c) and

SL 2022/113 cl. 2)

Fair Trading Amendment

Bill 2021

Current Bill

No. 19-2

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA

Legislation website.

Short title Number

and year

Assent Commencement

Biosecurity and Agriculture

Management (Repeal and

Consequential Provisions)

Act 2007 s. 83

24 of 2007

(as amended

by No. 58 of

2010

s. 192(7))

12 Oct 2007 To be proclaimed (see s. 2(2))

Public Health

(Consequential Provisions)

Act 2016 Pt. 5 Div. 7

19 of 2016 25 Jul 2016 To be proclaimed (see s. 2(1)(c))

Other notes

1 The provisions in this Act amending these Acts have been omitted under the

Reprints Act 1984 s. 7(4)(e).

2 Section 36 as altered by the Fair Trading (Permitted Calling Hours)

Regulations 2014 r. 4 and 5 no longer has effect in relation to the Australian

Consumer Law (WA) Text.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 1

page 91 [This compilation shows amendments proposed by Bill No. 19-2.]

Note — Australian Consumer Law (WA) text

This note is not part of the Act. Section 19(1) of the Act provides that

the Australian Consumer Law text that, under section 19(2) of the Act,

applies as the Australian Consumer Law (WA) consists of:

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

(Commonwealth) (the Cwth Act), as in force on 26 October 2018

(as modified by section 36 of the Act); and

(b) the regulations made under section 139G the Cwth Act, as those

regulations are in force from time to time.

Regulations may also be made under section 116(3) of the Act that alter

the operation of certain provisions of the Australian Consumer Law

(WA).

This note shows the version of the text of Schedule 2 to the Cwth Act,

as in force on 26 October 2018 (as modified by section 36 of the Act and

regulations made under section 116(3) of the Act) that, together with the

regulations made under section 139G of the Cwth Act, applies as the

Australian Consumer Law (WA).

The text of the regulations made under section 139G of the Cwth Act

is not reproduced. The regulations can be accessed at

www.comlaw.gov.au.]

Chapter 1 — Introduction

1. Application of this Schedule

This Schedule applies to the extent provided by:

(a) Part XI of the Competition and Consumer Act; or

(b) an application law.

2. Definitions

(1) In this Schedule:

ABN has the meaning given by section 41 of the A New

Tax System (Australian Business Number) Act 1999.

acceptable quality: see sections 54(2) to (7).

ACN has the meaning given by section 9 of the

Corporations Act 2001.

acquire includes:

(a) in relation to goods — acquire by way of purchase,

exchange or taking on lease, on hire or on

hire-purchase; and

(b) in relation to services — accept.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 92 [This compilation shows amendments proposed by Bill No. 19-2.]

Note: Section 5 deals with when receipt of a donation is an

acquisition.

adverse publicity order: see section 247(2).

affected person, in relation to goods, means:

(a) a consumer who acquires the goods; or

(b) a person who acquires the goods from the consumer

(other than for the purpose of re-supply); or

(c) a person who derives title to the goods through or

under the consumer.

agreement document: see section 78(2).

annual turnover, of a body corporate during a 12-month

period, means the sum of the values of all the supplies that

the body corporate, and any body corporate related to the

body corporate, have made, or are likely to make, during

the 12-month period, other than:

(a) supplies made from any of those bodies corporate to

any other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not

taxable supplies under section 72-5 of the A New Tax

System (Goods and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an

enterprise that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the

A New Tax System (Goods and Services Tax) Act 1999

have the same meaning as in that Act.

applicable industry code has the meaning given by

section 51ACA(1) of the Competition and Consumer Act.

application law has the same meaning as in section 140 of

the Competition and Consumer Act.

article includes a token, card or document.

ASIC means the Australian Securities and Investments

Commission.

assert a right to payment: see section 10(1).

associate regulator:

(a) for the purposes of the application of this Schedule

as a law of the Commonwealth — means a body that

is, for the purposes of the application of this

Schedule as a law of a State or a Territory, the

regulator within the meaning of the application law

of the State or Territory; or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 93 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) for the purposes of the application of this Schedule

as a law of a State or a Territory — means:

(i) the Commission; or

(ii) a body that is, for the purposes of the

application of this Schedule as a law of

another State or a Territory, the regulator

within the meaning of the application law of

that other State or Territory.

authority, in relation to a State or a Territory (including an

external Territory), means:

(a) a body corporate established for a purpose of the

State or the Territory by or under a law of the State

or Territory; or

(b) an incorporated company in which the State or the

Territory, or a body corporate referred to in

paragraph (a), has a controlling interest.

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the

Commonwealth by or under a law of the

Commonwealth or a law of a Territory; or

(b) an incorporated company in which the

Commonwealth, or a body corporate referred to in

paragraph (a), has a controlling interest.

banker has the same meaning as in section 4(1) of the

Competition and Consumer Act.

ban period for an interim ban: see section 111(1).

business includes a business not carried on for profit.

business day, in relation to an unsolicited consumer

agreement, means a day that is not:

(a) a Saturday or Sunday; or

(b) a public holiday in the place where the agreement

was made.

business or professional relationship includes a

relationship between employer and employee, or a similar

relationship.

call on, in relation to negotiating an unsolicited consumer

agreement, does not include call by telephone.

Commission has the same meaning as in section 4(1) of the

Competition and Consumer Act.

Commonwealth mandatory standard, in relation to goods,

means a mandatory standard in respect of the goods

imposed by a law of the Commonwealth.

Commonwealth Minister means the Minister who

administers Part XI of the Competition and Consumer Act.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 94 [This compilation shows amendments proposed by Bill No. 19-2.]

Competition and Consumer Act means the Competition

and Consumer Act 2010.

consumer: see section 3.

consumer contract: see section 23(3).

consumer goods means goods that are intended to be used,

or are of a kind likely to be used, for personal, domestic or

household use or consumption, and includes any such

goods that have become fixtures since the time they were

supplied if:

(a) a recall notice for the goods has been issued; or

(b) a person has voluntarily taken action to recall the

goods.

continuing credit contract: see section 14(1).

contravening conduct: see section 239(1)(a)(i).

court, in relation to a matter, means any court having

jurisdiction in the matter.

covering includes a stopper, glass, bottle, vessel, box,

capsule, case, frame or wrapper.

credit card: see section 39(5).

credit provider means a person providing, or proposing to

provide, in the course of a business carried on by the

person, credit to consumers in relation to the acquisition of

goods or services.

dealer: see section 71.

debit card: see section 39(6).

declared term: see section 239(1)(a)(ii).

defective goods action means an action under

section 138, 139, 140 or 141, and includes such an action

because of section 138(3) or 145.

disclosed purpose: see section 55(2).

displayed price: see sections 47(2) to (5).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols

or perforations having a meaning for persons

qualified to interpret them; and

(c) anything from which sounds, images or writings can

be reproduced with or without the aid of anything

else; and

(d) a map, plan, drawing or photograph.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 95 [This compilation shows amendments proposed by Bill No. 19-2.]

egg has the meaning given by subsection 137A(3).

enforcement proceeding means:

(a) a proceeding for an offence against Chapter 4; or

(b) a proceeding instituted under Chapter 5 (other than

under sections 237 and 239).

evidential burden, in relation to a matter, means the burden

of adducing or pointing to evidence that suggests a

reasonable possibility that the matter exists or does not

exist.

express warranty, in relation to goods, means an

undertaking, assertion or representation:

(a) that relates to:

(i) the quality, state, condition, performance or

characteristics of the goods; or

(ii) the provision of services that are or may at

any time be required for the goods; or

(iii) the supply of parts that are or may at any time

be required for the goods; or

(iv) the future availability of identical goods, or of

goods constituting or forming part of a set of

which the goods, in relation to which the

undertaking, assertion or representation is

given or made, form part; and

(b) that is given or made in connection with the supply

of the goods, or in connection with the promotion by

any means of the supply or use of the goods; and

(c) the natural tendency of which is to induce persons to

acquire the goods.

financial product has the meaning given by

section 12BAA of the Australian Securities and

Investments Commission Act 2001.

financial service has the meaning given by section 12BAB

of the Australian Securities and Investments Commission

Act 2001.

free item includes a free service.

free range egg has the meaning given by

subsection 137A(4).

gift card: see section 99A.

goods includes:

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

(c) minerals, trees and crops, whether on, under or

attached to land or not; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 96 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) gas and electricity; and

(e) computer software; and

(f) second-hand goods; and

(g) any component part of, or accessory to, goods.

grown: see section 255(7).

GST has the meaning given by section 195-1 of the A New

Tax System (Goods and Services Tax) Act 1999.

industry code has the meaning given by section 51ACA of

the Competition and Consumer Act.

information provider: see sections 19(5) and (6).

information standard: see sections 134(1) and 135(1).

inner container includes any container into which goods

are packed, other than a shipping or airline container, pallet

or other similar article.

interest, in relation to land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or

part of a building erected on the land, arising by

virtue of the holding of shares, or by virtue of a

contract to purchase shares, in an incorporated

company that owns the land or building; or

(c) a right, power or privilege over, or in connection

with, the land.

interim ban: see sections 109(1) and (2).

involved: a person is involved, in a contravention of a

provision of this Schedule or in conduct that constitutes

such a contravention, if the person:

(a) has aided, abetted, counselled or procured the

contravention; or

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

otherwise, the contravention; or

(c) has been in any way, directly or indirectly,

knowingly concerned in, or party to, the

contravention; or

(d) has conspired with others to effect the contravention.

joint liability proceedings means proceedings relating to

the joint and several liability under section 278 of a linked

credit provider and a supplier of goods or services.

label includes a band or ticket.

lay-by agreement: see section 96(3).

linked credit contract: see section 278(2).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 97 [This compilation shows amendments proposed by Bill No. 19-2.]

linked credit provider, in relation to a supplier of goods or

services, means a credit provider:

(a) with whom the supplier has a contract, arrangement

or understanding relating to:

(i) the supply to the supplier of goods in which

the supplier deals; or

(ii) the business carried on by the supplier of

supplying goods or services; or

(iii) the provision to persons to whom goods or

services are supplied by the supplier of credit

in respect of payment for those goods or

services; or

(b) to whom the supplier, by arrangement with the credit

provider, regularly refers persons for the purpose of

obtaining credit; or

(c) whose forms of contract, forms of application or

offers for credit are, by arrangement with the credit

provider, made available to persons by the supplier;

or

(d) with whom the supplier has a contract, arrangement

or understanding under which contracts, applications

or offers for credit from the credit provider may be

signed by persons at premises of the supplier.

loan contract means a contract under which a person in the

course of a business carried on by that person provides or

agrees to provide, whether on one or more occasions, credit

to a consumer in one or more of the following ways:

(a) by paying an amount to, or in accordance with the

instructions of, the consumer;

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

an amount owed to the person by the consumer;

(c) by varying the terms of a contract under which

money owed to the person by the consumer is

payable;

(d) by deferring an obligation of the consumer to pay an

amount to the person;

(e) by taking from the consumer a bill of exchange or

other negotiable instrument on which the consumer

(whether alone or with another person or other

persons) is liable as drawer, acceptor or endorser.

major failure: see sections 260 and 268.

mandatory standard, in relation to goods, means a

standard:

(a) for the goods or anything relating to the goods; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 98 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) that, under a law of the Commonwealth, a State or a

Territory, must be complied with when the goods are

supplied by their manufacturer, being a law creating

an offence or liability if there is such

non-compliance;

but does not include a standard which may be complied

with by meeting a higher standard.

manufacturer: see section 7.

market has the same meaning as in section 4E of the

Competition and Consumer Act.

materials, in relation to goods, means:

(a) if the goods are unmanufactured raw products —

those products; and

(b) if the goods are manufactured goods — all matter or

substances used or consumed in the manufacture of

the goods (other than matter or substances that are

treated as overheads); and

(c) in either case — the inner containers in which the

goods are packed.

mixed supply: see section 3(11).

National Credit Code has the meaning given by

section 5(1) of the National Consumer Credit Protection

Act 2009.

negotiated by telephone: see section 78(3).

negotiation: see section 72.

new participant: see section 45(2).

non-linked credit contract: see section 287(5).

non-party consumer means:

(a) in relation to conduct referred to in

section 239(1)(a)(i) — a person who is not, or has

not been, a party to an enforcement proceeding in

relation to the conduct; and

(b) in relation to a term of a contract referred to in

section 239(1)(a)(ii) — a person who is not, or has

not been, a party to an enforcement proceeding in

relation to the term.

participant, in a pyramid scheme, means a person who

participates in the scheme.

participate, in a pyramid scheme: see section 44(3).

participation payment: see section 45(1)(a).

permanent ban: see sections 114(1) and (2).

post-supply fee: see section 99D(2).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 99 [This compilation shows amendments proposed by Bill No. 19-2.]

premises means:

(a) an area of land or any other place (whether or not it

is enclosed or built on); or

(b) a building or other structure; or

(c) a vehicle, vessel or aircraft; or

(d) a part of any such premises.

price, of goods or services, means:

(a) the amount paid or payable (including any charge of

any description) for their acquisition; or

(b) if such an amount is not specified because the

acquisition is part only of a transaction for which a

total amount is paid or payable:

(i) the lowest amount (including any charge of

any description) for which the goods or

services could reasonably have been acquired

from the supplier at the time of the transaction

or, if not from the supplier, from another

supplier; or

(ii) if they could not reasonably have been

acquired separately from another supplier —

their value at the time of the transaction.

prior negotiations or arrangements, in relation to the

acquisition of goods by a consumer, means negotiations or

arrangements:

(a) that were conducted or made with the consumer by

another person in the course of a business carried on

by the other person; and

(b) that induced the consumer to acquire the goods, or

otherwise promoted the acquisition of the goods by

the consumer.

product related service means a service for or relating to:

(a) the installation of consumer goods of a particular

kind; or

(b) the maintenance, repair or cleaning of consumer

goods of a particular kind; or

(c) the assembly of consumer goods of a particular kind;

or

(d) the delivery of consumer goods of a particular kind;

and, without limiting paragraphs (a) to (d), includes any

other service that relates to the supply of consumer goods

of that kind.

proof of transaction: see section 100(4).

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 100 [This compilation shows amendments proposed by Bill No. 19-2.]

publish, in relation to an advertisement, means include in a

publication intended for sale or public distribution

(whether to the public generally or to a restricted class or

number of persons) or for public display (including in an

electronic form).

pyramid scheme: see section 45(1).

recall notice: see section 122(1).

recovery period: see section 41(4).

recruitment payment: see section 45(1)(b).

regulations means regulations made under section 139G of

the Competition and Consumer Act.

regulator:

(a) for the purposes of the application of this Schedule

as a law of the Commonwealth — means the

Commission; or

(b) for the purposes of the application of this Schedule

as a law of a State or a Territory — has the meaning

given by the application law of the State or

Territory.

rejection period: see section 262(2).

related, in relation to a body corporate: see section 6.

related contract or instrument: see section 83(2).

rely on, in relation to a term of a consumer contract or

small business contract, includes the following:

(a) attempt to enforce the term;

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

conferred, by the term;

(c) assert the existence of a right conferred, or

purportedly conferred, by the term.

responsible Minister means:

(a) the Commonwealth Minister; or

(b) the Minister of a State who administers the

application law of the State; or

(c) the Minister of a Territory who administers the

application law of the Territory.

safety defect, in relation to goods: see section 9.

safety standard: see sections 104(1) and 105(1).

sale by auction, in relation to the supply of goods by a

person, means a sale by auction that is conducted by an

agent of the person (whether the agent acts in person or by

electronic means).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Introduction Chapter 1

s. 2

page 101 [This compilation shows amendments proposed by Bill No. 19-2.]

send includes deliver, and sent and sender have

corresponding meanings.

serious injury or illness means an acute physical injury or

illness that requires medical or surgical treatment by, or

under the supervision of, a medical practitioner or a nurse

(whether or not in a hospital, clinic or similar place), but

does not include:

(a) an ailment, disorder, defect or morbid condition

(whether of sudden onset or gradual development);

or

(b) the recurrence, or aggravation, of such an ailment,

disorder, defect or morbid condition.

services includes:

(a) any rights (including rights in relation to, and

interests in, real or personal property), benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits,

privileges or facilities that are, or are to be, provided,

granted or conferred under:

(i) a contract for or in relation to the performance

of work (including work of a professional

nature), whether with or without the supply of

goods; or

(ii) a contract for or in relation to the provision of,

or the use or enjoyment of facilities for,

amusement, entertainment, recreation or

instruction; or

(iii) a contract for or in relation to the conferring

of rights, benefits or privileges for which

remuneration is payable in the form of a

royalty, tribute, levy or similar exaction; or

(iv) a contract of insurance; or

(v) a contract between a banker and a customer of

the banker entered into in the course of the

carrying on by the banker of the business of

banking; or

(vi) any contract for or in relation to the lending of

money;

but does not include rights or benefits being the supply of

goods or the performance of work under a contract of

service.

share includes stock.

ship has the meaning given by section 3(1) of the

Admiralty Act 1988.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 1 Introduction

s. 2

page 102 [This compilation shows amendments proposed by Bill No. 19-2.]

single price: see section 48(7).

small business contract: see subsection 23(4).

standard form contract has a meaning affected by

section 27.

substantially transformed, in relation to goods: see

section 255(2).

substantiation notice means a notice under section 219.

substantiation notice compliance period: see

section 221(2).

supply, when used as a verb, includes:

(a) in relation to goods — supply (including re-supply)

by way of sale, exchange, lease, hire or

hire-purchase; and

(b) in relation to services — provide, grant or confer;

and, when used as a noun, has a corresponding meaning,

and supplied and supplier have corresponding meanings.

Note: Section 5 deals with when a donation is a supply.

supply of limited title: see section 51(2).

telecommunications service: see section 65(2).

termination charge: see section 97(2).

termination period, in relation to an unsolicited consumer

agreement, means the period within which the consumer

under the agreement is, under section 82 or under the

agreement, entitled to terminate the agreement.

tied continuing credit contract means a continuing credit

contract under which a credit provider provides credit in

respect of the payment by a consumer for goods or services

supplied by a supplier in relation to whom the credit

provider is a linked credit provider.

tied loan contract means a loan contract entered into

between a credit provider and a consumer where:

(a) the credit provider knows, or ought reasonably to

know, that the consumer enters into the loan contract

wholly or partly for the purposes of payment for

goods or services supplied by a supplier; and

(b) at the time the loan contract is entered into the credit

provider is a linked credit provider of the supplier.

trade or commerce means:

(a) trade or commerce within Australia; or

(b) trade or commerce between Australia and places

outside Australia;

and includes any business or professional activity (whether

or not carried on for profit).

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transparent:

(a) in relation to a document — means:

(i) expressed in reasonably plain language; and

(ii) legible; and

(iii) presented clearly; and

(b) in relation to a term of a consumer contract or small

business contract — see section 24(3).

unfair, in relation to a term of a consumer contract or

small business contract: see section 24(1).

unsolicited consumer agreement: see section 69.

unsolicited goods means goods sent to a person without

any request made by the person or on his or her behalf.

unsolicited services means:

(a) services supplied to a person; or

(b) services purported to have been supplied to a person

which have not been supplied;

without any request made by the person or on his or her

behalf.

upfront price: see section 26(2).

warranty against defects: see section 102(3).

(2) In this Schedule:

(a) a reference to engaging in conduct is a reference to

doing or refusing to do any act, including:

(i) the making of, or the giving effect to a

provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a

provision of, an understanding; or

(iii) the requiring of the giving of, or the giving of,

a covenant; and

(b) a reference to conduct, when that expression is used

as a noun otherwise than as mentioned in

paragraph (a), is a reference to the doing of or the

refusing to do any act, including:

(i) the making of, or the giving effect to a

provision of, a contract or arrangement; or

(ii) the arriving at, or the giving effect to a

provision of, an understanding; or

(iii) the requiring of the giving of, or the giving of,

a covenant; and

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

reference to:

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(i) refraining (otherwise than inadvertently) from

doing that act; or

(ii) making it known that that act will not be done;

and

(d) a reference to a person offering to do an act, or to do

an act on a particular condition, includes a reference

to the person making it known that the person will

accept applications, offers or proposals for the

person to do that act or to do that act on that

condition, as the case may be.

3. Meaning of consumer

Acquiring goods as a consumer

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

consumer if, and only if:

(a) the amount paid or payable for the goods, as worked

out under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the

purposes of this paragraph — that greater

amount; or

(b) the goods were of a kind ordinarily acquired for

personal, domestic or household use or consumption;

or

(c) the goods consisted of a vehicle or trailer acquired

for use principally in the transport of goods on

public roads.

(2) However, subsection (1) does not apply if the person

acquired the goods, or held himself or herself out as

acquiring the goods:

(a) for the following purpose:

(i) for goods other than gift cards—for the

purpose of re-supply;

(ii) for gift cards—for the purpose of re-supply

in trade or commerce; or

(b) for the purpose of using them up or transforming

them, in trade or commerce:

(i) in the course of a process of production or

manufacture; or

(ii) in the course of repairing or treating other

goods or fixtures on land.

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page 105 [This compilation shows amendments proposed by Bill No. 19-2.]

Acquiring services as a consumer

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

consumer if, and only if:

(a) the amount paid or payable for the services, as

worked out under subsections (4) to (9), did not

exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the

purposes of subsection (1)(a) — that greater

amount; or

(b) the services were of a kind ordinarily acquired for

personal, domestic or household use or consumption.

Amounts paid or payable for purchases

(4) For the purposes of subsection (1) or (3), the amount paid

or payable for goods or services purchased by a person is

taken to be the price paid or payable by the person for the

goods or services, unless subsection (5) applies.

(5) For the purposes of subsection (1) or (3), if a person

purchased goods or services by a mixed supply and a

specified price was not allocated to the goods or services in

the contract under which they were purchased, the amount

paid or payable for goods or services is taken to be:

(a) if, at the time of the acquisition, the person could

have purchased from the supplier the goods or

services other than by a mixed supply — the price at

which they could have been purchased from the

supplier; or

(b) if:

(i) paragraph (a) does not apply; but

(ii) at the time of the acquisition, goods or

services of the kind acquired could have

been purchased from another supplier other

than by a mixed supply;

the lowest price at which the person could, at that

time, reasonably have purchased goods or services

of that kind from another supplier; or

(c) if, at the time of the acquisition, goods or services of

the kind acquired could not have been purchased

from any supplier except by a mixed supply — the

value of the goods or services at that time.

Amounts paid or payable for other acquisitions

(6) For the purposes of subsection (1) or (3), the amount paid

or payable for goods or services acquired by a person other

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than by way of purchase is taken to be the price at which,

at the time of the acquisition, the person could have

purchased the goods or services from the supplier, unless

subsection (7) or (8) applies.

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

(a) goods or services acquired by a person other than by

way of purchase could not, at the time of the

acquisition, have been purchased from the supplier,

or could have been purchased only by a mixed

supply; but

(b) at that time, goods or services of the kind acquired

could have been purchased from another supplier

other than by a mixed supply;

the amount paid or payable for the goods or services is

taken to be the lowest price at which the person could, at

that time, reasonably have purchased goods or services of

that kind from another supplier.

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

services acquired by a person other than by way of

purchase could not, at the time of the acquisition, have

been purchased from any supplier other than by a mixed

supply, the amount paid or payable for the goods or

services is taken to be the value of the goods or services at

that time.

Amounts paid or payable for obtaining credit

(9) If:

(a) a person obtains credit in connection with the

acquisition of goods or services by him or her; and

(b) the amount paid or payable by him or her for the

goods or services is increased because he or she so

obtains credit;

obtaining the credit is taken for the purposes of

subsection (3) to be the acquisition of a service, and the

amount paid or payable by him or her for the service of

being provided with the credit is taken to include the

amount of the increase.

Presumption that persons are consumers

(10) If it is alleged in any proceeding under this Schedule, or in

any other proceeding in respect of a matter arising under

this Schedule, that a person was a consumer in relation to

particular goods or services, it is presumed, unless the

contrary is established, that the person was a consumer in

relation to those goods or services.

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page 107 [This compilation shows amendments proposed by Bill No. 19-2.]

Mixed supplies

(11) A purchase or other acquisition of goods or services is

made by a mixed supply if the goods or services are

purchased or acquired together with other property or

services, or together with both other property and other

services.

Supplies to consumers

(12) In this Schedule, a reference to a supply of goods or

services to a consumer is a reference to a supply of goods

or services to a person who is taken to have acquired them

as a consumer.

4. Misleading representations with respect to future matters

(1) If:

(a) a person makes a representation with respect to any

future matter (including the doing of, or the refusing

to do, any act); and

(b) the person does not have reasonable grounds for

making the representation;

the representation is taken, for the purposes of this

Schedule, to be misleading.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation made with respect

to a future matter by:

(a) a party to the proceeding; or

(b) any other person;

the party or other person is taken not to have had

reasonable grounds for making the representation, unless

evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to

the contrary is adduced, the person who made the

representation is taken to have had reasonable

grounds for making the representation; or

(b) have the effect of placing on any person an onus of

proving that the person who made the representation

had reasonable grounds for making the

representation.

(4) Subsection (1) does not limit by implication the meaning of

a reference in this Schedule to:

(a) a misleading representation; or

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(b) a representation that is misleading in a material

particular; or

(c) conduct that is misleading or is likely or liable to

mislead;

and, in particular, does not imply that a representation that

a person makes with respect to any future matter is not

misleading merely because the person has reasonable

grounds for making the representation.

5. When donations are treated as supplies or acquisitions

(1) For the purposes of this Schedule, other than Parts 3-3, 3-4,

4-3 and 4-4:

(a) a donation of goods or services is not treated as a

supply of the goods or services unless the donation is

for promotional purposes; and

(b) receipt of a donation of goods or services is not

treated as an acquisition of the goods or services

unless the donation is for promotional purposes.

(2) For the purposes of Parts 3-3, 3-4, 4-3 and 4-4:

(a) any donation of goods or services is treated as a

supply of the goods or services; and

(b) receipt of any donation of goods or services is

treated as an acquisition of the goods or services.

6. Related bodies corporate

(1) A body corporate is taken to be related to another body

corporate if the bodies corporate would, under

section 4A(5) of the Competition and Consumer Act, be

deemed to be related to each other.

(2) In proceedings under this Schedule, it is presumed, unless

the contrary is established, that bodies corporate are not, or

were not at a particular time, related to each other.

7. Meaning of manufacturer

(1) A manufacturer includes the following:

(a) a person who grows, extracts, produces, processes or

assembles goods;

(b) a person who holds himself or herself out to the

public as the manufacturer of goods;

(c) a person who causes or permits the name of the

person, a name by which the person carries on

business or a brand or mark of the person to be

applied to goods supplied by the person;

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page 109 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) a person (the first person) who causes or permits

another person, in connection with:

(i) the supply or possible supply of goods by

that other person; or

(ii) the promotion by that other person by any

means of the supply or use of goods;

to hold out the first person to the public as the

manufacturer of the goods;

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

(i) the person is not the manufacturer of the

goods; and

(ii) at the time of the importation, the

manufacturer of the goods does not have a

place of business in Australia.

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

(a) a name, brand or mark is taken to be applied to

goods if:

(i) it is woven in, impressed on, worked into or

annexed or affixed to the goods; or

(ii) it is applied to a covering, label, reel or thing

in or with which the goods are supplied; and

(b) if the name of a person, a name by which a person

carries on business or a brand or mark of a person is

applied to goods, it is presumed, unless the contrary

is established, that the person caused or permitted

the name, brand or mark to be applied to the goods.

(3) If goods are imported into Australia on behalf of a person,

the person is taken, for the purposes of paragraph (1)(e), to

have imported the goods into Australia.

8. Goods affixed to land or premises

For the purposes of this Schedule, goods are taken to be

supplied to a consumer even if they are affixed to land or

premises at the time of the supply.

9. Meaning of safety defect in relation to goods

(1) For the purposes of this Schedule, goods have a safety

defect if their safety is not such as persons generally are

entitled to expect.

(2) In determining the extent of the safety of goods, regard is

to be given to all relevant circumstances, including:

(a) the manner in which, and the purposes for which,

they have been marketed; and

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(b) their packaging; and

(c) the use of any mark in relation to them; and

(d) any instructions for, or warnings with respect to,

doing, or refraining from doing, anything with or in

relation to them; and

(e) what might reasonably be expected to be done with

or in relation to them; and

(f) the time when they were supplied by their

manufacturer.

(3) An inference that goods have a safety defect is not to be

made only because of the fact that, after they were supplied

by their manufacturer, safer goods of the same kind were

supplied.

(4) An inference that goods have a safety defect is not to be

made only because:

(a) there was compliance with a Commonwealth

mandatory standard for them; and

(b) that standard was not the safest possible standard

having regard to the latest state of scientific or

technical knowledge when they were supplied by

their manufacturer.

10. Asserting a right to payment

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

person if the person:

(a) makes a demand for the payment or asserts a present

or prospective right to the payment; or

(b) threatens to bring any legal proceedings with a view

to obtaining the payment; or

(c) places or causes to be placed the name of the other

person on a list of defaulters or debtors, or threatens

to do so, with a view to obtaining the payment; or

(d) invokes or causes to be invoked any other collection

procedure, or threatens to do so, with a view to

obtaining the payment; or

(e) sends any invoice or other document that:

(i) states the amount of the payment; or

(ii) sets out the price of unsolicited goods or

unsolicited services; or

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

publication, an entry or advertisement;

and does not contain a statement, to the effect that

the document is not an assertion of a right to a

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payment, that complies with any requirements

prescribed by the regulations.

(2) For the purposes of this section, an invoice or other

document purporting to have been sent by or on behalf of a

person is taken to have been sent by that person unless the

contrary is established.

11. References to acquisition, supply and re-supply

In this Schedule:

(a) a reference to the acquisition of goods includes a

reference to the acquisition of property in, or rights

in relation to, goods pursuant to a supply of the

goods; and

(b) a reference to the supply or acquisition of goods or

services includes a reference to agreeing to supply or

acquire goods or services; and

(c) a reference to the supply or acquisition of goods

includes a reference to the supply or acquisition of

goods together with other property or services, or

both; and

(d) a reference to the supply or acquisition of services

includes a reference to the supply or acquisition of

services together with property or other services, or

both; and

(e) a reference to the re-supply of goods acquired from a

person includes a reference to:

(i) a supply of the goods to another person in an

altered form or condition; and

(ii) a supply to another person of goods in which

the first-mentioned goods have been

incorporated; and

(f) a reference to the re-supply of services (the original

services) acquired from a person (the original

supplier) includes a reference to:

(i) a supply of the original services to another

person in an altered form or condition; and

(ii) a supply to another person of other services

that are substantially similar to the original

services, and could not have been supplied if

the original services had not been acquired

by the person who acquired them from the

original supplier.

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page 112 [This compilation shows amendments proposed by Bill No. 19-2.]

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

and buildings

In this Schedule:

(a) a reference to a contract includes a reference to a

lease of, or a licence in respect of, land or a building

or part of a building (despite the express references

in this Schedule to such leases or licences); and

(b) a reference to making or entering into a contract, in

relation to such a lease or licence, is a reference to

granting or taking the lease or licence; and

(c) a reference to a party to a contract, in relation to

such a lease or licence, includes a reference to any

person bound by, or entitled to the benefit of, any

provision contained in the lease or licence.

13. Loss or damage to include injury

In this Schedule:

(a) a reference to loss or damage, other than a reference

to the amount of any loss or damage, includes a

reference to injury; and

(b) a reference to the amount of any loss or damage

includes a reference to damages in respect of an

injury.

14. Meaning of continuing credit contract

(1) If:

(a) a person (the creditor), in the course of a business

carried on by the creditor, agrees with a consumer to

provide credit to the consumer in relation to:

(i) payment for goods or services; or

(ii) cash supplied by the creditor to the

consumer from time to time; or

(iii) payment by the creditor to another person in

relation to goods or services, or cash,

supplied by that other person to the

consumer from time to time; and

(b) the creditor:

(i) has an agreement, arrangement or

understanding (the credit agreement) with

the consumer in relation to the provision of

the credit; or

(ii) is engaged in a course of dealing (the credit

dealing) with the consumer in relation to the

provision of the credit; and

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page 113 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) the amounts owing to the creditor from time to time

under the credit agreement or credit dealing are, or

are to be, calculated on the basis that:

(i) all amounts owing; and

(ii) all payments made;

by the consumer under, or in respect of, the credit

agreement or credit dealing are entered in one or

more accounts kept for the purpose of that

agreement or dealing;

the credit agreement or credit dealing is taken, for the

purposes of this Schedule, to be a continuing credit

contract.

(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the

purposes of this section, to have provided credit to the

consumer in relation to any goods or services, or cash,

supplied by another person to the consumer to the extent of

any payments made, or to be made, by the creditor to that

other person.

15. Contraventions of this Schedule

Conduct is not taken, for the purposes of this Schedule, to

contravene a provision of this Schedule merely because of

the application of:

(a) section 23(1); or

(b) a provision of Division 1 of Part 3-2 (other than

section 66(2)); or

(c) a provision of Part 3-5.

16. Severability

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

section contravenes this Schedule because the contract

includes a particular provision, nothing in this Schedule

affects the validity or enforceability of the contract

otherwise than in relation to that provision, so far as that

provision is severable.

(2) This section has effect subject to any order made under

Division 4 of Part 5-2.

17. References to provisions in this Schedule

In this Schedule, a reference to a provision is a reference to

a provision of this Schedule, unless the contrary intention

appears.

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Chapter 2 — General protections

Part 2-1Misleading or deceptive conduct

18. Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in

conduct that is misleading or deceptive or is likely to

mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits

by implication subsection (1).

Note: For rules relating to representations as to the country of

origin of goods, see Part 5-3.

19. Application of this Part to information providers

(1) This Part does not apply to a publication of matter by an

information provider if:

(a) in any case — the information provider made the

publication in the course of carrying on a business of

providing information; or

(b) if the information provider is the Australian

Broadcasting Corporation, the Special Broadcasting

Service Corporation or the holder of a licence

granted under the Broadcasting Services Act 1992

the publication was by way of a radio or television

broadcast by the information provider.

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

advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the

promotion by any means of the supply or use of, goods or

services (the publicised goods or services), if:

(a) the publicised goods or services were goods or

services of a kind supplied by the information

provider or, if the information provider is a body

corporate, by a body corporate that is related to the

information provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who supplies goods or services of the same

kind as the publicised goods or services; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

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page 115 [This compilation shows amendments proposed by Bill No. 19-2.]

that supplies goods or services of the same kind as

the publicised goods or services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant,

of, or the promotion by any means of the sale or grant of,

interests in land (the publicised interests in land), if:

(a) the publicised interests in land were interests of a

kind sold or granted by the information provider or,

if the information provider is a body corporate, by a

body corporate that is related to the information

provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who sells or grants interests of the same kind

as the publicised interests in land; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that sells or grants interests of the same kind as the

publicised interests in land.

(5) An information provider is a person who carries on a

business of providing information.

(6) Without limiting subsection (5), each of the following is an

information provider:

(a) the holder of a licence granted under the

Broadcasting Services Act 1992;

(b) a person who is the provider of a broadcasting

service under a class licence under that Act;

[(c) deleted.]

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

Part 2-2 — Unconscionable conduct

20. Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in

conduct that is unconscionable, within the meaning of the

unwritten law from time to time.

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

this subsection.

(2) This section does not apply to conduct that is prohibited by

section 21.

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page 116 [This compilation shows amendments proposed by Bill No. 19-2.]

21. Unconscionable conduct in connection with goods or services

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

with:

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

a person; or

(b) the acquisition or possible acquisition of goods or

services from a person;

engage in conduct that is, in all the circumstances,

unconscionable.

(2) This section does not apply to conduct that is engaged in

only because the person engaging in the conduct:

(a) institutes legal proceedings in relation to the supply

or possible supply, or in relation to the acquisition or

possible acquisition; or

(b) refers to arbitration a dispute or claim in relation to

the supply or possible supply, or in relation to the

acquisition or possible acquisition.

(3) For the purpose of determining whether a person has

contravened subsection (1):

(a) the court must not have regard to any circumstances

that were not reasonably foreseeable at the time of

the alleged contravention; and

(b) the court may have regard to conduct engaged in, or

circumstances existing, before the commencement of

this section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law

relating to unconscionable conduct; and

(b) this section is capable of applying to a system of

conduct or pattern of behaviour, whether or not a

particular individual is identified as having been

disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract

relates is unconscionable, a court’s consideration of

the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which

the contract is carried out;

and is not limited to consideration of the

circumstances relating to formation of the contract.

Fair Trading Act 2010

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page 117 [This compilation shows amendments proposed by Bill No. 19-2.]

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

section 21

(1) Without limiting the matters to which the court may have

regard for the purpose of determining whether a person

(the supplier) has contravened section 21 in connection

with the supply or possible supply of goods or services to a

person (the customer), the court may have regard to:

(a) the relative strengths of the bargaining positions of

the supplier and the customer; and

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

supplier, the customer was required to comply with

conditions that were not reasonably necessary for the

protection of the legitimate interests of the supplier;

and

(c) whether the customer was able to understand any

documents relating to the supply or possible supply

of the goods or services; and

(d) whether any undue influence or pressure was exerted

on, or any unfair tactics were used against, the

customer or a person acting on behalf of the

customer by the supplier or a person acting on behalf

of the supplier in relation to the supply or possible

supply of the goods or services; and

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

which, the customer could have acquired identical or

equivalent goods or services from a person other

than the supplier; and

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

the customer was consistent with the supplier’s

conduct in similar transactions between the supplier

and other like customers; and

(g) the requirements of any applicable industry code;

and

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

customer acted on the reasonable belief that the

supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed

to disclose to the customer:

(i) any intended conduct of the supplier that

might affect the interests of the customer;

and

(ii) any risks to the customer arising from the

supplier’s intended conduct (being risks that

the supplier should have foreseen would not

be apparent to the customer); and

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Chapter 2 General protections

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page 118 [This compilation shows amendments proposed by Bill No. 19-2.]

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

customer for the supply of the goods or services:

(i) the extent to which the supplier was willing

to negotiate the terms and conditions of the

contract with the customer; and

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

(iii) the conduct of the supplier and the customer

in complying with the terms and conditions

of the contract; and

(iv) any conduct that the supplier or the customer

engaged in, in connection with their

commercial relationship, after they entered

into the contract; and

(k) without limiting paragraph (j), whether the supplier

has a contractual right to vary unilaterally a term or

condition of a contract between the supplier and the

customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer

acted in good faith.

(2) Without limiting the matters to which the court may have

regard for the purpose of determining whether a person

(the acquirer) has contravened section 21 in connection

with the acquisition or possible acquisition of goods or

services from a person (the supplier), the court may have

regard to:

(a) the relative strengths of the bargaining positions of

the acquirer and the supplier; and

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

acquirer, the supplier was required to comply with

conditions that were not reasonably necessary for the

protection of the legitimate interests of the acquirer;

and

(c) whether the supplier was able to understand any

documents relating to the acquisition or possible

acquisition of the goods or services; and

(d) whether any undue influence or pressure was exerted

on, or any unfair tactics were used against, the

supplier or a person acting on behalf of the supplier

by the acquirer or a person acting on behalf of the

acquirer in relation to the acquisition or possible

acquisition of the goods or services; and

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

which, the supplier could have supplied identical or

equivalent goods or services to a person other than

the acquirer; and

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page 119 [This compilation shows amendments proposed by Bill No. 19-2.]

(f) the extent to which the acquirer’s conduct towards

the supplier was consistent with the acquirer’s

conduct in similar transactions between the acquirer

and other like suppliers; and

(g) the requirements of any applicable industry code;

and

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

supplier acted on the reasonable belief that the

acquirer would comply with that code; and

(i) the extent to which the acquirer unreasonably failed

to disclose to the supplier:

(i) any intended conduct of the acquirer that

might affect the interests of the supplier; and

(ii) any risks to the supplier arising from the

acquirer’s intended conduct (being risks that

the acquirer should have foreseen would not

be apparent to the supplier); and

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

supplier for the acquisition of the goods or services:

(i) the extent to which the acquirer was willing

to negotiate the terms and conditions of the

contract with the supplier; and

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

(iii) the conduct of the acquirer and the supplier

in complying with the terms and conditions

of the contract; and

(iv) any conduct that the acquirer or the supplier

engaged in, in connection with their

commercial relationship, after they entered

into the contract; and

(k) without limiting paragraph (j), whether the acquirer

has a contractual right to vary unilaterally a term or

condition of a contract between the acquirer and the

supplier for the acquisition of the goods or services;

and

(l) the extent to which the acquirer and the supplier

acted in good faith.

22A. Presumptions relating to whether representations are misleading

Section 4 applies for the purposes of sections 21 and 22 in

the same way as it applies for the purposes of Division 1 of

Part 3-1.

Fair Trading Act 2010

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Chapter 2 General protections

s. 23

page 120 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 2-3 — Unfair contract terms

23. Unfair terms of consumer contracts and small business contracts

(1) A term of a consumer contract or small business contract is

void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of

operating without the unfair term.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or

interest is wholly or predominantly for personal, domestic

or household use or consumption.

(4) A contract is a small business contract if:

(a) the contract is for a supply of goods or services, or a

sale or grant of an interest in land; and

(b) at the time the contract is entered into, at least one

party to the contract is a business that employs fewer

than 20 persons; and

(c) either of the following applies:

(i) the upfront price payable under the contract

does not exceed $300,000;

(ii) the contract has a duration of more than 12

months and the upfront price payable under

the contract does not exceed $1,000,000.

(5) In counting the persons employed by a business for the

purposes of paragraph (4)(b), a casual employee is not to

be counted unless he or she is employed by the business on

a regular and systematic basis.

24. Meaning of unfair

(1) A term of a consumer contract or small business contract is

unfair if:

(a) it would cause a significant imbalance in the parties’

rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the

legitimate interests of the party who would be

advantaged by the term; and

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page 121 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) it would cause detriment (whether financial or

otherwise) to a party if it were to be applied or relied

on.

(2) In determining whether a term of a contract is unfair under

subsection (1), a court may take into account such matters

as it thinks relevant, but must take into account the

following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

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

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

is presumed not to be reasonably necessary in order to

protect the legitimate interests of the party who would be

advantaged by the term, unless that party proves otherwise.

25. Examples of unfair terms

Without limiting section 24, the following are examples of the

kinds of terms of a consumer contract or small business

contract that may be unfair:

(a) a term that permits, or has the effect of permitting,

one party (but not another party) to avoid or limit

performance of the contract;

(b) a term that permits, or has the effect of permitting,

one party (but not another party) to terminate the

contract;

(c) a term that penalises, or has the effect of penalising,

one party (but not another party) for a breach or

termination of the contract;

(d) a term that permits, or has the effect of permitting,

one party (but not another party) to vary the terms of

the contract;

(e) a term that permits, or has the effect of permitting,

one party (but not another party) to renew or not

renew the contract;

(f) a term that permits, or has the effect of permitting,

one party to vary the upfront price payable under the

contract without the right of another party to

terminate the contract;

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Chapter 2 General protections

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page 122 [This compilation shows amendments proposed by Bill No. 19-2.]

(g) a term that permits, or has the effect of permitting,

one party unilaterally to vary the characteristics of

the goods or services to be supplied, or the interest in

land to be sold or granted, under the contract;

(h) a term that permits, or has the effect of permitting,

one party unilaterally to determine whether the

contract has been breached or to interpret its

meaning;

(i) a term that limits, or has the effect of limiting, one

party’s vicarious liability for its agents;

(j) a term that permits, or has the effect of permitting,

one party to assign the contract to the detriment of

another party without that other party’s consent;

(k) a term that limits, or has the effect of limiting, one

party’s right to sue another party;

(l) a term that limits, or has the effect of limiting, the

evidence one party can adduce in proceedings

relating to the contract;

(m) a term that imposes, or has the effect of imposing,

the evidential burden on one party in proceedings

relating to the contract;

(n) a term of a kind, or a term that has an effect of a

kind, prescribed by the regulations.

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

small business contracts etc. are unaffected

(1) Section 23 does not apply to a term of a consumer contract or small business contract to the extent, but only to the

extent, that the term:

(a) defines the main subject matter of the contract; or

(b) sets the upfront price payable under the contract; or

(c) is a term required, or expressly permitted, by a law

of the Commonwealth, a State or a Territory.

(2) The upfront price payable under a contract is the

consideration that:

(a) is provided, or is to be provided, for the supply, sale

or grant under the contract; and

(b) is disclosed at or before the time the contract is

entered into;

but does not include any other consideration that is

contingent on the occurrence or non-occurrence of a

particular event.

Fair Trading Act 2010

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General protections Chapter 2

s. 27

page 123 [This compilation shows amendments proposed by Bill No. 19-2.]

27. Standard form contracts

(1) If a party to a proceeding alleges that a contract is a

standard form contract, it is presumed to be a standard

form contract unless another party to the proceeding proves

otherwise.

(2) In determining whether a contract is a standard form

contract, a court may take into account such matters as it

thinks relevant, but must take into account the following:

(a) whether one of the parties has all or most of the

bargaining power relating to the transaction;

(b) whether the contract was prepared by one party

before any discussion relating to the transaction

occurred between the parties;

(c) whether another party was, in effect, required either

to accept or reject the terms of the contract (other

than the terms referred to in section 26(1)) in the

form in which they were presented;

(d) whether another party was given an effective

opportunity to negotiate the terms of the contract

that were not the terms referred to in section 26(1);

(e) whether the terms of the contract (other than the

terms referred to in section 26(1)) take into account

the specific characteristics of another party or the

particular transaction;

(f) any other matter prescribed by the regulations.

28. Contracts to which this Part does not apply

(1) This Part does not apply to:

(a) a contract of marine salvage or towage; or

(b) a charterparty of a ship; or

(c) a contract for the carriage of goods by ship.

(2) Without limiting subsection (1)(c), the reference in that

subsection to a contract for the carriage of goods by ship

includes a reference to any contract covered by a sea

carriage document within the meaning of the amended

Hague Rules referred to in section 7(1) of the Carriage of

Goods by Sea Act 1991.

(3) This Part does not apply to a contract that is the

constitution (within the meaning of section 9 of the

Corporations Act 2001) of a company, managed

investment scheme or other kind of body.

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Chapter 3 Specific protections

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page 124 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) This Part does not apply to a small business contract to

which a prescribed law of the Commonwealth, a State or a

Territory applies.

Chapter 3 — Specific protections

Part 3-1 — Unfair practices

Division 1 — False or misleading representations etc.

29. False or misleading representations about goods or services

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

with the supply or possible supply of goods or services or

in connection with the promotion by any means of the

supply or use of goods or services:

(a) make a false or misleading representation that goods

are of a particular standard, quality, value, grade,

composition, style or model or have had a particular

history or particular previous use; or

(b) make a false or misleading representation that

services are of a particular standard, quality, value or

grade; or

(c) make a false or misleading representation that goods

are new; or

(d) make a false or misleading representation that a

particular person has agreed to acquire goods or

services; or

(e) make a false or misleading representation that

purports to be a testimonial by any person relating to

goods or services; or

(f) make a false or misleading representation

concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a

testimonial;

relating to goods or services; or

(g) make a false or misleading representation that goods

or services have sponsorship, approval, performance

characteristics, accessories, uses or benefits; or

(h) make a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

(i) make a false or misleading representation with

respect to the price of goods or services; or

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Specific protections Chapter 3

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page 125 [This compilation shows amendments proposed by Bill No. 19-2.]

(j) make a false or misleading representation

concerning the availability of facilities for the repair

of goods or of spare parts for goods; or

(k) make a false or misleading representation

concerning the place of origin of goods; or

(l) make a false or misleading representation

concerning the need for any goods or services; or

(m) make a false or misleading representation

concerning the existence, exclusion or effect of any

condition, warranty, guarantee, right or remedy

(including a guarantee under Division 1 of Part 3-2);

or

(n) make a false or misleading representation

concerning a requirement to pay for a contractual

right that:

(i) is wholly or partly equivalent to any

condition, warranty, guarantee, right or

remedy (including a guarantee under

Division 1 of Part 3-2); and

(ii) a person has under a law of the

Commonwealth, a State or a Territory (other

than an unwritten law).

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

this subsection.

Note 2: For rules relating to representations as to the country of

origin of goods, see Part 5-3.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation of a kind referred

to in subsection (1)(e) or (f), the representation is taken to

be misleading unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to

the contrary is adduced, the representation is not

misleading; or

(b) have the effect of placing on any person an onus of

proving that the representation is not misleading.

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

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

with the sale or grant, or the possible sale or grant, of an

interest in land or in connection with the promotion by any

means of the sale or grant of an interest in land:

(a) make a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

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Chapter 3 Specific protections

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page 126 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) make a false or misleading representation

concerning the nature of the interest in the land; or

(c) make a false or misleading representation

concerning the price payable for the land; or

(d) make a false or misleading representation

concerning the location of the land; or

(e) make a false or misleading representation

concerning the characteristics of the land; or

(f) make a false or misleading representation

concerning the use to which the land is capable of

being put or may lawfully be put; or

(g) make a false or misleading representation

concerning the existence or availability of facilities

associated with the land.

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

this subsection.

(2) This section does not affect the application of any other

provision of Part 2-1 or this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

31. Misleading conduct relating to employment

A person must not, in relation to employment that is to be,

or may be, offered by the person or by another person,

engage in conduct that is liable to mislead persons seeking

the employment as to:

(a) the availability, nature, terms or conditions of the

employment; or

(b) any other matter relating to the employment.

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

this section.

32. Offering rebates, gifts, prizes etc.

(1) A person must not, in trade or commerce, offer any rebate,

gift, prize or other free item with the intention of not

providing it, or of not providing it as offered, in connection

with:

(a) the supply or possible supply of goods or services; or

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

goods or services; or

(c) the sale or grant, or the possible sale or grant, of an

interest in land; or

(d) the promotion by any means of the sale or grant of

an interest in land.

Fair Trading Act 2010

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Specific protections Chapter 3

s. 33

page 127 [This compilation shows amendments proposed by Bill No. 19-2.]

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

this subsection.

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

connection with:

(a) the supply or possible supply of goods or services; or

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

goods or services; or

(c) the sale or grant, or the possible sale or grant, of an

interest in land; or

(d) the promotion by any means of the sale or grant of

an interest in land;

the person must, within the time specified in the offer or (if

no such time is specified) within a reasonable time after

making the offer, provide the rebate, gift, prize or other

free item in accordance with the offer.

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

this subsection.

(3) Subsection (2) does not apply if:

(a) the person’s failure to provide the rebate, gift, prize

or other free item in accordance with the offer was

due to the act or omission of another person, or to

some other cause beyond the person’s control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(4) Subsection (2) does not apply to an offer that the person

makes to another person if:

(a) the person offers to the other person a different

rebate, gift, prize or other free item as a replacement;

and

(b) the other person agrees to receive the different

rebate, gift, prize or other free item.

(5) This section does not affect the application of any other

provision of Part 2-1 or this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

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

A person must not, in trade or commerce, engage in

conduct that is liable to mislead the public as to the nature,

the manufacturing process, the characteristics, the

suitability for their purpose or the quantity of any goods.

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

this section.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 34

page 128 [This compilation shows amendments proposed by Bill No. 19-2.]

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

A person must not, in trade or commerce, engage in

conduct that is liable to mislead the public as to the nature,

the characteristics, the suitability for their purpose or the

quantity of any services.

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

this section.

35. Bait advertising

(1) A person must not, in trade or commerce, advertise goods

or services for supply at a specified price if:

(a) there are reasonable grounds for believing that the

person will not be able to offer for supply those

goods or services at that price for a period that is,

and in quantities that are, reasonable, having regard

to:

(i) the nature of the market in which the person

carries on business; and

(ii) the nature of the advertisement; and

(b) the person is aware or ought reasonably to be aware

of those grounds.

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

this subsection.

(2) A person who, in trade or commerce, advertises goods or

services for supply at a specified price must offer such

goods or services for supply at that price for a period that

is, and in quantities that are, reasonable having regard to:

(a) the nature of the market in which the person carries

on business; and

(b) the nature of the advertisement.

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

this subsection.

36. Wrongly accepting payment

(1) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance, the person intends not to supply the

goods or services.

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

this subsection.

(2) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance, the person intends to supply goods or

services materially different from the goods or services in

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page 129 [This compilation shows amendments proposed by Bill No. 19-2.]

respect of which the payment or other consideration is

accepted.

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

this subsection.

(3) A person must not, in trade or commerce, accept payment

or other consideration for goods or services if, at the time

of the acceptance:

(a) there are reasonable grounds for believing that the

person will not be able to supply the goods or

services:

(i) within the period specified by or on behalf

of the person at or before the time the

payment or other consideration was

accepted; or

(ii) if no period is specified at or before that

time — within a reasonable time; and

(b) the person is aware or ought reasonably to be aware

of those grounds.

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

this subsection.

(4) A person who, in trade or commerce, accepts payment or

other consideration for goods or services must supply all

the goods or services:

(a) within the period specified by or on behalf of the

person at or before the time the payment or other

consideration was accepted; or

(b) if no period is specified at or before that time —

within a reasonable time.

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

this subsection.

(5) Subsection (4) does not apply if:

(a) the person’s failure to supply all the goods or services

within the period, or within a reasonable time, was due

to the act or omission of another person, or to some

other cause beyond the person’s control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(6) Subsection (4) does not apply if:

(a) the person offers to supply different goods or

services as a replacement to the person (the

customer) to whom the original supply was to be

made; and

(b) the customer agrees to receive the different goods or

services.

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Chapter 3 Specific protections

s. 37

page 130 [This compilation shows amendments proposed by Bill No. 19-2.]

(7) Subsections (1), (2), (3) and (4) apply whether or not the

payment or other consideration that the person accepted

represents the whole or a part of the payment or other

consideration for the supply of the goods or services.

37. Misleading representations about certain business activities

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

representation that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material

aspect of any business activity that the person has

represented as one that can be, or can be to a

considerable extent, carried on at or from a person’s

place of residence.

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

this subsection.

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

representation that:

(a) is false or misleading in a material particular; and

(b) concerns the profitability, risk or any other material

aspect of any business activity:

(i) that the person invites (whether by

advertisement or otherwise) other persons to

engage or participate in, or to offer or apply

to engage or participate in; and

(ii) that requires the performance of work by

other persons, or the investment of money

by other persons and the performance by

them of work associated with the

investment.

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

this subsection.

38. Application of provisions of this Division to information providers

(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication

of matter by an information provider if:

(a) in any case — the information provider made the

publication in the course of carrying on a business of

providing information; or

(b) if the information provider is the Australian

Broadcasting Corporation, the Special Broadcasting

Service Corporation or the holder of a licence

granted under the Broadcasting Services Act 1992

the publication was by way of a radio or television

broadcast by the information provider.

Fair Trading Act 2010

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Specific protections Chapter 3

s. 39

page 131 [This compilation shows amendments proposed by Bill No. 19-2.]

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

advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the

promotion by any means of the supply or use of, goods or

services (the publicised goods or services), if:

(a) the publicised goods or services were goods or

services of a kind supplied by the information

provider or, if the information provider is a body

corporate, by a body corporate that is related to the

information provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who supplies goods or services of the same

kind as the publicised goods or services; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that supplies goods or services of the same kind as

the publicised goods or services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant,

of, or the promotion by any means of the sale or grant of,

interests in land (the publicised interests in land), if:

(a) the publicised interests in land were interests of a

kind sold or granted by the information provider or,

if the information provider is a body corporate, by a

body corporate that is related to the information

provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who sells or grants interests of the same kind

as the publicised interests in land; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that sells or grants interests of the same kind as the

publicised interests in land.

Division 2 — Unsolicited supplies

39. Unsolicited cards etc.

(1) A person must not send a credit card or a debit card, or an

article that may be used as a credit card and a debit card, to

another person except:

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Chapter 3 Specific protections

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page 132 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) pursuant to a written request by the person who will

be under a liability to the person who issued the card

or article in respect of the use of the card or article;

or

(b) in renewal or replacement of, or in substitution for:

(i) a card or article of the same kind previously

sent to the other person pursuant to a written

request by the person who was under a

liability, to the person who issued the card

previously so sent, in respect of the use of

that card; or

(ii) a card or article of the same kind previously

sent to the other person and used for a

purpose for which it was intended to be

used.

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

this subsection.

(2) Subsection (1) does not apply unless the card or article is

sent by or on behalf of the person who issued it.

(3) A person must not take any action that enables another

person who has a credit card to use the card as a debit card,

except in accordance with the other person’s written

request.

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

this subsection.

(4) A person must not take any action that enables another

person who has a debit card to use the card as a credit card,

except in accordance with the other person’s written

request.

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

this subsection.

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

following:

(a) an article of a kind commonly known as a credit

card;

(b) a similar article intended for use in obtaining cash,

goods or services on credit;

(c) an article of a kind that persons carrying on business

commonly issue to their customers, or prospective

customers, for use in obtaining goods or services

from those persons on credit;

and includes an article that may be used as an article

referred to in paragraph (a), (b) or (c).

(6) A debit card is:

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(a) an article intended for use by a person in obtaining

access to an account that is held by the person for the

purpose of withdrawing or depositing cash or

obtaining goods or services; or

(b) an article that may be used as an article referred to in

paragraph (a).

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

(1) A person must not, in trade or commerce, assert a right to

payment from another person for unsolicited goods unless

the person has reasonable cause to believe that there is a

right to the payment.

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

this subsection.

(2) A person must not, in trade or commerce, assert a right to

payment from another person for unsolicited services

unless the person has reasonable cause to believe that there

is a right to the payment.

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

this subsection.

(3) A person must not, in trade or commerce, send to another

person an invoice or other document that:

(a) states the amount of a payment, or sets out the

charge, for unsolicited goods or unsolicited services;

and

(b) does not contain a warning statement that complies

with the requirements set out in the regulations;

unless the person has reasonable cause to believe that there

is a right to the payment or charge.

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

this subsection.

(4) In a proceeding against a person in relation to a

contravention of this section, the person bears the onus of

proving that the person had reasonable cause to believe that

there was a right to the payment or charge.

41. Liability etc. of recipient for unsolicited goods

(1) If a person, in trade or commerce, supplies unsolicited

goods to another person, the other person:

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

(b) is not liable for loss of or damage to the goods, other

than loss or damage resulting from the other person

doing a wilful and unlawful act in relation to the

goods during the recovery period.

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(2) If a person sends, in trade or commerce, unsolicited goods

to another person:

(a) neither the sender nor any person claiming under the

sender is entitled, after the end of the recovery

period, to take action for the recovery of the goods

from the other person; and

(b) at the end of the recovery period, the goods become,

by force of this section, the property of the other

person freed and discharged from all liens and

charges of any description.

(3) However, subsection (2) does not apply to or in relation to

unsolicited goods sent to a person if:

(a) the person has, at any time during the recovery

period, unreasonably refused to permit the sender or

the owner of the goods to take possession of the

goods; or

(b) the sender or the owner of the goods has within the

recovery period taken possession of the goods; or

(c) the goods were received by the person in

circumstances in which the person knew, or might

reasonably be expected to have known, that the

goods were not intended for him or her.

(4) The recovery period is whichever of the following periods

ends first:

(a) the period of 3 months starting on the day after the

day on which the person received the goods;

(b) if the person who receives the unsolicited goods

gives notice with respect to the goods to the supplier

or sender in accordance with subsection (5) — the

period of one month starting on the day after the day

on which the notice is given.

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

(a) must be in writing; and

(b) must state the name and address of the person who

received the goods; and

(c) must state the address at which possession may be

taken of the goods, if it is not the address of the

person; and

(d) must contain a statement to the effect that the goods

are unsolicited goods.

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42. Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies, or purports to

supply but does not supply, unsolicited services to another

person, the other person:

(a) is not liable to make any payment for the services;

and

(b) is not liable for loss or damage as a result of the

supply or purported supply of the services.

43. Assertion of right to payment for unauthorised entries or

advertisements

(1) A person must not assert a right to payment from another

person of a charge for placing, in a publication, an entry or

advertisement relating to:

(a) the other person; or

(b) the other person’s profession, business, trade or

occupation;

unless the person knows, or has reasonable cause to

believe, that the other person authorised the placing of the

entry or advertisement.

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

this subsection.

(2) A person must not send to another person an invoice or

other document that:

(a) states the amount of a payment, or sets out the

charge, for placing, in a publication, an entry or

advertisement relating to:

(i) the other person; or

(ii) the other person’s profession, business, trade

or occupation; and

(b) does not contain a warning statement that complies

with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to

believe, that the other person authorised the placing of the

entry or advertisement.

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

this subsection.

(3) Subsections (1) and (2) do not apply to an entry or

advertisement that is placed in a publication published by a

person who is:

(a) the publisher of a publication that has an audited

circulation of 10,000 copies or more per week, as

confirmed by the most recent audit of the publication

by a body specified in the regulations; or

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(b) a body corporate related to such a publisher; or

(c) the Commonwealth, a State or a Territory, or an

authority of the Commonwealth, a State or a

Territory; or

(d) a person specified in the regulations.

(4) A person:

(a) is not liable to make any payment to another person;

and

(b) is entitled to recover by action in a court against

another person any payment made by the person to

the other person;

in full or part satisfaction of a charge for placing, in a

publication, an entry or advertisement, unless the person

authorised the placing of the entry or advertisement.

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

have authorised the placing of the entry or advertisement,

unless:

(a) a document authorising the placing of the entry or

advertisement has been signed by the person or by

another person authorised by him or her; and

(b) a copy of the document has been given to the person

before the right to payment of a charge for the

placing of the entry or advertisement is asserted; and

(c) the document specifies:

(i) the name and address of the person

publishing the entry or advertisement; and

(ii) particulars of the entry or advertisement; and

(iii) the amount of the charge for the placing of

the entry or advertisement, or the basis on

which the charge is, or is to be, calculated.

(6) In a proceeding against a person in relation to a

contravention of this section, the person bears the onus of

proving that the person knew or had reasonable cause to

believe that the person against whom a right to payment

was asserted had authorised the placing of the entry or

advertisement.

Division 3 — Pyramid schemes

44. Participation in pyramid schemes

(1) A person must not participate in a pyramid scheme.

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

this subsection.

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(2) A person must not induce, or attempt to induce, another

person to participate in a pyramid scheme.

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

this subsection.

(3) To participate in a pyramid scheme is:

(a) to establish or promote the scheme (whether alone or

together with another person); or

(b) to take part in the scheme in any capacity (whether

or not as an employee or agent of a person who

establishes or promotes the scheme, or who

otherwise takes part in the scheme).

45. Meaning of pyramid scheme

(1) A pyramid scheme is a scheme with both of the following

characteristics:

(a) to take part in the scheme, some or all new

participants must provide, to another participant or

participants in the scheme, either of the following (a

participation payment):

(i) a financial or non-financial benefit to, or for

the benefit of, the other participant or

participants;

(ii) a financial or non-financial benefit partly to,

or for the benefit of, the other participant or

participants and partly to, or for the benefit

of, other persons;

(b) the participation payments are entirely or

substantially induced by the prospect held out to new

participants that they will be entitled, in relation to

the introduction to the scheme of further new

participants, to be provided with either of the

following (a recruitment payment):

(i) a financial or non-financial benefit to, or for

the benefit of, new participants;

(ii) a financial or non-financial benefit partly to,

or for the benefit of, new participants and

partly to, or for the benefit of, other persons.

(2) A new participant includes a person who has applied, or

been invited, to participate in the scheme.

(3) A scheme may be a pyramid scheme:

(a) no matter who holds out to new participants the

prospect of entitlement to recruitment payments; and

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(b) no matter who is to make recruitment payments to

new participants; and

(c) no matter who is to make introductions to the

scheme of further new participants.

(4) A scheme may be a pyramid scheme even if it has any or

all of the following characteristics:

(a) the participation payments may (or must) be made

after the new participants begin to take part in the

scheme;

(b) making a participation payment is not the only

requirement for taking part in the scheme;

(c) the holding out of the prospect of entitlement to

recruitment payments does not give any new

participant a legally enforceable right;

(d) arrangements for the scheme are not recorded in

writing (whether entirely or partly);

(e) the scheme involves the marketing of goods or

services (or both).

46. Marketing schemes as pyramid schemes

(1) To decide, for the purpose of this Schedule, whether a

scheme that involves the marketing of goods or services (or

both) is a pyramid scheme, a court must have regard to the

following matters in working out whether participation

payments under the scheme are entirely or substantially

induced by the prospect held out to new participants of

entitlement to recruitment payments:

(a) whether the participation payments bear a reasonable

relationship to the value of the goods or services that

participants are entitled to be supplied with under the

scheme (as assessed, if appropriate, by reference to

the price of comparable goods or services available

elsewhere);

(b) the emphasis given in the promotion of the scheme

to the entitlement of participants to the supply of

goods or services by comparison with the emphasis

given to their entitlement to recruitment payments.

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(2) Subsection (1) does not limit the matters to which the court

may have regard in working out whether participation

payments are entirely or substantially induced by the

prospect held out to new participants of entitlement to

recruitment payments.

Division 4 — Pricing

47. Multiple pricing

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

(a) the goods have more than one displayed price; and

(b) the supply takes place for a price that is not the

lower, or lowest, of the displayed prices.

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

this subsection.

(2) A displayed price for goods is a price for the goods, or any

representation that may reasonably be inferred to be a

representation of a price for the goods:

(a) that is annexed or affixed to, or is written, printed,

stamped or located on, or otherwise applied to, the

goods or any covering, label, reel or thing used in

connection with the goods; or

(b) that is used in connection with the goods or anything

on which the goods are mounted for display or

exposed for supply; or

(c) that is determined on the basis of anything encoded

on or in relation to the goods; or

(d) that is published in relation to the goods in a

catalogue available to the public if:

(i) a time is specified in the catalogue as the

time after which the goods will not be sold at

that price and that time has not passed; or

(ii) in any other case — the catalogue may

reasonably be regarded as not out-of-date; or

(e) that is in any other way represented in a manner

from which it may reasonably be inferred that the

price or representation is applicable to the goods;

and includes such a price or representation that is partly

obscured by another such price or representation that is

written, stamped or located partly over that price or

representation.

(3) If:

(a) a price or representation is included in a catalogue;

and

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(b) the catalogue is expressed to apply only to goods

supplied at a specified location, or in a specified

region;

the price or representation is taken, for the purposes of

subsection (2)(d), not to have been made in relation to

supply of the goods at a different location, or in a different

region, as the case may be.

(4) Despite subsection (2), a price or representation is not a

displayed price for goods if:

(a) the price or representation is wholly obscured by

another such price or representation that is written,

stamped or located wholly over that price or

representation; or

(b) the price or representation:

(i) is expressed as a price per unit of mass,

volume, length or other unit of measure; and

(ii) is presented as an alternative means of

expressing the price for supply of the goods

that is a displayed price for the goods; or

(c) the price or representation is expressed as an amount

in a currency other than Australian currency; or

(d) the price or representation is expressed in a way that

is unlikely to be interpreted as an amount of

Australian currency.

(5) Despite subsection (2), a displayed price for goods that is a

displayed price because it has been published in a

catalogue or advertisement ceases to be a displayed price

for the goods if:

(a) the displayed price is retracted; and

(b) the retraction is published in a manner that has at

least a similar circulation or audience as the

catalogue or advertisement.

48. Single price to be specified in certain circumstances

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

(a) the supply, or possible supply, to another person of

goods or services of a kind ordinarily acquired for

personal, domestic or household use or consumption;

or

(b) the promotion by any means of the supply to another

person, or of the use by another person, of goods or

services of a kind ordinarily acquired for personal,

domestic or household use or consumption;

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make a representation with respect to an amount that, if

paid, would constitute a part of the consideration for the

supply of the goods or services unless the person also

specifies, in a prominent way and as a single figure, the

single price for the goods or services.

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

this subsection.

(2) A person is not required to include, in the single price for

goods, a charge that is payable in relation to sending the

goods from the supplier to the other person.

(3) However, if:

(a) the person does not include in the single price a

charge that is payable in relation to sending the

goods from the supplier to the other person; and

(b) the person knows, at the time of the representation,

the minimum amount of a charge in relation to

sending the goods from the supplier to the other

person that must be paid by the other person;

the person must not make the representation referred to in

subsection (1) unless the person also specifies that

minimum amount.

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

this subsection.

(4) Subsection (1) does not apply if the representation is made

exclusively to a body corporate.

(4A) Subsection (1) does not apply if:

(a) the representation is in a class of representations

prescribed by the regulations; and

(b) the conditions (if any) prescribed by the regulations

in relation to representations in that class have been

complied with.

Note: If the representation is in a class prescribed for paragraph (a)

of this subsection and subsection (1) is complied with in

relation to the representation, there is no need to also comply

with any conditions prescribed for paragraph (b) of this

subsection.

(5) For the purposes of subsection (1), the person is taken not

to have specified a single price for the goods or services in

a prominent way unless the single price is at least as

prominent as the most prominent of the parts of the

consideration for the supply.

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(6) Subsection (5) does not apply in relation to services to be

supplied under a contract if:

(a) the contract provides for the supply of the services

for the term of the contract; and

(b) the contract provides for periodic payments for the

services to be made during the term of the contract;

and

(c) if the contract also provides for the supply of

goods — the goods are directly related to the supply

of the services.

(7) The single price is the minimum quantifiable consideration

for the supply of the goods or services at the time of the

representation, including each of the following amounts (if

any) that is quantifiable at that time:

(a) a charge of any description payable to the person

making the representation by another person unless:

(i) the charge is payable at the option of the

other person; and

(ii) at or before the time of the representation,

the other person has either deselected the

charge or not expressly requested that the

charge be applied;

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

charge imposed on the person making the

representation in relation to the supply;

(c) any amount paid or payable by the person making

the representation in relation to the supply with

respect to any tax, duty, fee, levy or charge if:

(i) the amount is paid or payable under an

agreement or arrangement made under a law

of the Commonwealth, a State or a Territory;

and

(ii) the tax, duty, fee, levy or charge would have

otherwise been payable by another person in

relation to the supply.

Example 1: An airline advertises a flight for sale. Persons have the

option of paying for a carbon offset. If the carbon offset is

preselected on the airline’s online booking system, the single

price for the flight must include the carbon offset charge.

This is because the person has not, at or before the time of

the representation, deselected the charge on the online

booking site. If the person deselects the optional carbon

offset charge later in the online booking process, the single

price does not need to include the carbon offset charge after

the charge is deselected because of the exception provided

by paragraphs (a)(i) and (ii).

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Example 2: The GST may be an example of an amount covered by

paragraph (b).

Example 3: The passenger movement charge imposed under the

Passenger Movement Charge Act 1978 may be an example

of an amount covered by paragraph (c). Under an

arrangement under section 10 of the Passenger Movement

Charge Collection Act 1978, airlines may pay an amount

equal to the charge that would otherwise be payable by

passengers departing Australia.

Division 5 — Other unfair practices

49. Referral selling

A person must not, in trade or commerce, induce a

consumer to acquire goods or services by representing that

the consumer will, after the contract for the acquisition of

the goods or services is made, receive a rebate, commission

or other benefit in return for:

(a) giving the person the names of prospective

customers; or

(b) otherwise assisting the person to supply goods or

services to other consumers;

if receipt of the rebate, commission or other benefit is

contingent on an event occurring after that contract is

made.

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

this section.

50. Harassment and coercion

(1) A person must not use physical force, or undue harassment

or coercion, in connection with:

(a) the supply or possible supply of goods or services; or

(b) the payment for goods or services; or

(c) the sale or grant, or the possible sale or grant, of an

interest in land; or

(d) the payment for an interest in land.

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

this subsection.

(2) Subsections (1)(c) and (d) do not affect the application of

any other provision of Part 2-1 or this Part in relation to the

supply or acquisition, or the possible supply or acquisition,

of interests in land.

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Part 3-2Consumer transactions

Division 1 — Consumer guarantees

Subdivision A — Guarantees relating to the supply of goods

51. Guarantee as to title

(1) If a person (the supplier) supplies goods to a consumer,

there is a guarantee that the supplier will have a right to

dispose of the property in the goods when that property is

to pass to the consumer.

(2) Subsection (1) does not apply to a supply (a supply of

limited title) if an intention that the supplier of the goods

should transfer only such title as the supplier, or another

person, may have:

(a) appears from the contract for the supply; or

(b) is to be inferred from the circumstances of that

contract.

(3) This section does not apply if the supply is a supply by

way of hire or lease.

52. Guarantee as to undisturbed possession

(1) If:

(a) a person (the supplier) supplies goods to a

consumer; and

(b) the supply is not a supply of limited title;

there is a guarantee that the consumer has the right to

undisturbed possession of the goods.

(2) Subsection (1) does not apply to the extent that the

consumer’s undisturbed possession of the goods may be

lawfully disturbed by a person who is entitled to the benefit

of any security, charge or encumbrance disclosed to the

consumer before the consumer agreed to the supply.

(3) If:

(a) a person (the supplier) supplies goods to a

consumer; and

(b) the supply is a supply of limited title;

there is a guarantee that the following persons will

not disturb the consumer’s possession of the goods:

(c) the supplier;

(d) if the parties to the contract for the supply intend that

the supplier should transfer only such title as another

person may have — that other person;

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(e) anyone claiming through or under the supplier or

that other person (otherwise than under a security,

charge or encumbrance disclosed to the consumer

before the consumer agreed to the supply).

(4) This section applies to a supply by way of hire or lease

only for the period of the hire or lease.

53. Guarantee as to undisclosed securities etc.

(1) If:

(a) a person (the supplier) supplies goods to a

consumer; and

(b) the supply is not a supply of limited title;

there is a guarantee that:

(c) the goods are free from any security, charge or

encumbrance:

(i) that was not disclosed to the consumer, in

writing, before the consumer agreed to the

supply; or

(ii) that was not created by or with the express

consent of the consumer; and

(d) the goods will remain free from such a security,

charge or encumbrance until the time when the

property in the goods passes to the consumer.

(2) A supplier does not fail to comply with the guarantee only

because of the existence of a floating charge over the

supplier’s assets unless and until the charge becomes fixed

and enforceable by the person to whom the charge is given.

Note: Section 339 of the Personal Property Securities Act 2009

affects the meaning of the references in this subsection to a

floating charge and a fixed charge.

(3) If:

(a) a person (the supplier) supplies goods to a

consumer; and

(b) the supply is a supply of limited title;

there is a guarantee that all securities, charges or

encumbrances known to the supplier, and not known to the

consumer, were disclosed to the consumer before the

consumer agreed to the supply.

(4) This section does not apply if the supply is a supply by

way of hire or lease.

54. Guarantee as to acceptable quality

(1) If:

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(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable

quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind

are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state

and condition of the goods (including any hidden defects of

the goods), would regard as acceptable having regard to the

matters in subsection (3).

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

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any

packaging or label on the goods; and

(d) any representation made about the goods by the

supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the

supply of the goods.

(4) If:

(a) goods supplied to a consumer are not of acceptable

quality; and

(b) the only reason or reasons why they are not of

acceptable quality were specifically drawn to the

consumer’s attention before the consumer agreed to

the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) the goods would not be of acceptable quality if they

were supplied to a consumer;

the reason or reasons why they are not of acceptable

quality are taken, for the purposes of subsection (4), to

have been specifically drawn to a consumer’s attention if

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those reasons were disclosed on a written notice that was

displayed with the goods and that was transparent.

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes

them to become of unacceptable quality, or fails to

take reasonable steps to prevent them from

becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them

before the consumer agrees to the supply of the

goods; and

(b) the examination ought reasonably to have revealed

that the goods were not of acceptable quality.

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

(1) If:

(a) a person (the supplier) supplies, in trade or

commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for

any disclosed purpose, and for any purpose for which the

supplier represents that they are reasonably fit.

(2) A disclosed purpose is a particular purpose (whether or not

that purpose is a purpose for which the goods are

commonly supplied) for which the goods are being

acquired by the consumer and that:

(a) the consumer makes known, expressly or by

implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of

the goods were conducted or made; or

(b) the consumer makes known to the manufacturer of

the goods either directly or through the supplier or

the person referred to in paragraph (a)(ii).

(3) This section does not apply if the circumstances show that

the consumer did not rely on, or that it was unreasonable

for the consumer to rely on, the skill or judgment of the

supplier, the person referred to in subsection (2)(a)(ii) or

the manufacturer, as the case may be.

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56. Guarantee relating to the supply of goods by description

(1) If:

(a) a person supplies, in trade or commerce, goods by

description to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the

description.

(2) A supply of goods is not prevented from being a supply by

description only because, having been exposed for sale or

hire, they are selected by the consumer.

(3) If goods are supplied by description as well as by reference

to a sample or demonstration model, the guarantees in this

section and in section 57 both apply.

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

demonstration model

(1) If:

(a) a person supplies, in trade or commerce, goods to a

consumer by reference to a sample or demonstration

model; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that:

(c) the goods correspond with the sample or

demonstration model in quality, state or condition;

and

(d) if the goods are supplied by reference to a sample —

the consumer will have a reasonable opportunity to

compare the goods with the sample; and

(e) the goods are free from any defect that:

(i) would not be apparent on reasonable

examination of the sample or demonstration

model; and

(ii) would cause the goods not to be of

acceptable quality.

(2) If goods are supplied by reference to a sample or

demonstration model as well as by description, the

guarantees in section 56 and in this section both apply.

58. Guarantee as to repairs and spare parts

(1) If:

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(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will

take reasonable action to ensure that facilities for the repair

of the goods, and parts for the goods, are reasonably

available for a reasonable period after the goods are

supplied.

(2) This section does not apply if the manufacturer took

reasonable action to ensure that the consumer would be

given written notice, at or before the time when the

consumer agrees to the supply of the goods, that:

(a) facilities for the repair of the goods would not be

available or would not be available after a specified

period; or

(b) parts for the goods would not be available or would

not be available after a specified period.

59. Guarantee as to express warranties

(1) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will

comply with any express warranty given or made by the

manufacturer in relation to the goods.

(2) If:

(a) a person supplies, in trade or commerce, goods to a

consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the supplier will comply with any

express warranty given or made by the supplier in relation

to the goods.

Subdivision B — Guarantees relating to the supply of services

60. Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a

consumer, there is a guarantee that the services will be

rendered with due care and skill.

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

(1) If:

(a) a person (the supplier) supplies, in trade or

commerce, services to a consumer; and

(b) the consumer, expressly or by implication, makes

known to the supplier any particular purpose for

which the services are being acquired by the

consumer;

there is a guarantee that the services, and any product

resulting from the services, will be reasonably fit for that

purpose.

(2) If:

(a) a person (the supplier) supplies, in trade or

commerce, services to a consumer; and

(b) the consumer makes known, expressly or by

implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of

the services were conducted or made;

the result that the consumer wishes the services to

achieve;

there is a guarantee that the services, and any product

resulting from the services, will be of such a nature, and

quality, state or condition, that they might reasonably be

expected to achieve that result.

(3) This section does not apply if the circumstances show that

the consumer did not rely on, or that it was unreasonable

for the consumer to rely on, the skill or judgment of the

supplier.

(4) This section does not apply to a supply of services of a

professional nature by a qualified architect or engineer.

62. Guarantee as to reasonable time for supply

If:

(a) a person (the supplier) supplies, in trade or

commerce, services to a consumer; and

(b) the time within which the services are to be supplied:

(i) is not fixed by the contract for the supply of

the services; or

(ii) is not to be determined in a manner agreed to

by the consumer and supplier;

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there is a guarantee that the services will be supplied within

a reasonable time.

63. Services to which this Subdivision does not apply

(1) This Subdivision does not apply to services that are, or are

to be, supplied under:

(a) a contract for or in relation to the transportation or

storage of goods for the purposes of a business,

trade, profession or occupation carried on or

engaged in by the person for whom the goods are

transported or stored; or

(b) a contract of insurance.

(2) To avoid doubt, subsection (1)(a) does not apply if the

consignee of the goods is not carrying on or engaged in a

business, trade, profession or occupation in relation to the

goods.

Note: This subsection was inserted as a response to the decision of

the High Court of Australia in Wallis v Downard-Pickford

(North Queensland) Pty Ltd [1994] HCA 17.

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

64. Guarantees not to be excluded etc. by contract

(1) A term of a contract (including a term that is not set out in

the contract but is incorporated in the contract by another

term of the contract) is void to the extent that the term

purports to exclude, restrict or modify, or has the effect of

excluding, restricting or modifying:

(a) the application of all or any of the provisions of this

Division; or

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

or

(c) any liability of a person for a failure to comply with

a guarantee that applies under this Division to a

supply of goods or services.

(2) A term of a contract is not taken, for the purposes of this

section, to exclude, restrict or modify the application of a

provision of this Division unless the term does so expressly

or is inconsistent with the provision.

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

(1) A term of a contract for the supply by a person of goods

other than goods of a kind ordinarily acquired for personal,

domestic or household use or consumption is not void

under section 64 merely because the term limits the

person’s liability for failure to comply with a guarantee

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(other than a guarantee under section 51, 52 or 53) to one

or more of the following:

(a) the replacement of the goods or the supply of

equivalent goods;

(b) the repair of the goods;

(c) the payment of the cost of replacing the goods or of

acquiring equivalent goods;

(d) the payment of the cost of having the goods repaired.

(2) A term of a contract for the supply by a person of services

other than services of a kind ordinarily acquired for

personal, domestic or household use or consumption is not

void under section 64 merely because the term limits the

person’s liability for failure to comply with a guarantee to:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services

supplied again.

(3) This section does not apply in relation to a term of a

contract if the person to whom the goods or services were

supplied establishes that it is not fair or reasonable for the

person who supplied the goods or services to rely on that

term of the contract.

(4) In determining for the purposes of subsection (3) whether

or not reliance on a term of a contract is fair or reasonable,

a court is to have regard to all the circumstances of the

case, and in particular to the following matters:

(a) the strength of the bargaining positions of the person

who supplied the goods or services and the person to

whom the goods or services were supplied (the

buyer) relative to each other, taking into account,

among other things, the availability of equivalent

goods or services and suitable alternative sources of

supply;

(b) whether the buyer received an inducement to agree

to the term or, in agreeing to the term, had an

opportunity of acquiring the goods or services or

equivalent goods or services from any source of

supply under a contract that did not include that

term;

(c) whether the buyer knew or ought reasonably to have

known of the existence and extent of the term

(having regard, among other things, to any custom of

the trade and any previous course of dealing between

the parties);

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(d) in the case of the supply of goods, whether the goods

were manufactured, processed or adapted to the

special order of the buyer.

Subdivision D — Miscellaneous

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

telecommunications

(1) This Division does not apply to a supply if the supply:

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

(b) is a supply of gas, electricity or a

telecommunications service.

(2) A telecommunications service is a service for carrying

communications by means of guided or unguided

electromagnetic energy or both.

66. Display notices

(1) The Commonwealth Minister may determine, in writing,

that persons (the suppliers) who make supplies, or supplies

of a specified kind, to which guarantees apply under this

Division are required to display, in accordance with the

determination, a notice that meets the requirements of the

determination.

(2) A supplier who makes a supply to a consumer to which a

guarantee applies under this Division, and to which such a

determination relates, must ensure that a notice that meets

those requirements is, in accordance with the

determination:

(a) if the consumer takes delivery of the goods or

services at the supplier’s premises — displayed at

those premises; or

(b) otherwise — drawn to the consumer’s attention

before the consumer agrees to the supply of the

goods.

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

this subsection.

(3) Without limiting subsection (1), a determination under that

subsection may do all or any of the following:

(a) require the notice to include specified information

about the application of all or any of the provisions

of this Division and Part 5-4;

(b) specify where the notice must be displayed;

(c) specify how the notice must be drawn to the

attention of consumers;

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

67. Conflict of laws

If:

(a) the proper law of a contract for the supply of goods

or services to a consumer would be the law of any

part of Australia but for a term of the contract that

provides otherwise; or

(b) a contract for the supply of goods or services to a

consumer contains a term that purports to substitute,

or has the effect of substituting, the following

provisions for all or any of the provisions of this

Division:

(i) the provisions of the law of a country other

than Australia;

(ii) the provisions of the law of a State or a

Territory;

the provisions of this Division apply in relation to the

supply under the contract despite that term.

68. Convention on Contracts for the International Sale of Goods

The provisions of the United Nations Convention on

Contracts for the International Sale of Goods, done at

Vienna on 11 April 1980, as amended and in force for

Australia from time to time, prevail over the provisions of

this Division to the extent of any inconsistency.

Note: The text of the Convention is set out in Australian Treaty

Series 1988 No. 32 ([1988] ATS 32). In 2010, the text of a

Convention in the Australian Treaty Series was accessible

through the Australian Treaties Library on the AustLII

website (www.austlii.edu.au).

Division 2 — Unsolicited consumer agreements

Subdivision A — Introduction

69. Meaning of unsolicited consumer agreement

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

(a) it is for the supply, in trade or commerce, of goods

or services to a consumer; and

(b) it is made as a result of negotiations between a

dealer and the consumer:

(i) in each other’s presence at a place other than

the business or trade premises of the supplier

of the goods or services; or

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(ii) by telephone;

whether or not they are the only negotiations that

precede the making of the agreement; and

(c) the consumer did not invite the dealer to come to

that place, or to make a telephone call, for the

purposes of entering into negotiations relating to the

supply of those goods or services (whether or not the

consumer made such an invitation in relation to a

different supply); and

(d) the total price paid or payable by the consumer under

the agreement:

(i) is not ascertainable at the time the agreement

is made; or

(ii) if it is ascertainable at that time — is more

than $100 or such other amount prescribed

by the regulations.

(1AA)To avoid doubt, a place mentioned in subsection (1)(b)(i)

may be a public place, and need not be a place the dealer

cannot enter without the consumer’s consent or invitation.

Note: This subsection was inserted as a response to the decision of

the Federal Court of Australia in Australian Competition and

Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016]

FCA 403.

(1A) The consumer is not taken, for the purposes of

subsection (1)(c), to have invited the dealer to come to that

place, or to make a telephone call, merely because the

consumer has:

(a) given his or her name or contact details other than

for the predominant purpose of entering into

negotiations relating to the supply of the goods or

services referred to in subsection (1)(c); or

(b) contacted the dealer in connection with an

unsuccessful attempt by the dealer to contact the

consumer.

(2) An invitation merely to quote a price for a supply is not

taken, for the purposes of subsection (1)(c), to be an

invitation to enter into negotiations for a supply.

(3) An agreement is also an unsolicited consumer agreement

if it is an agreement of a kind that the regulations provide

are unsolicited consumer agreements.

(4) However, despite subsections (1) and (3), an agreement is

not an unsolicited consumer agreement if it is an

agreement of a kind that the regulations provide are not

unsolicited consumer agreements.

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page 156 [This compilation shows amendments proposed by Bill No. 19-2.]

70. Presumption that agreements are unsolicited consumer

agreements

(1) In a proceeding relating to a contravention or possible

contravention of this Division (other than a criminal

proceeding), an agreement is presumed to be an unsolicited

consumer agreement if:

(a) a party to the proceeding alleges that the agreement

is an unsolicited consumer agreement; and

(b) no other party to the proceeding proves that the

agreement is not an unsolicited consumer agreement.

(2) In a proceeding relating to a contravention or possible

contravention of this Division (other than a criminal

proceeding), it is presumed that a proposed agreement

would be an unsolicited consumer agreement if it were

made if:

(a) a party to the proceeding alleges that the proposed

agreement would be an unsolicited consumer

agreement if it were made; and

(b) no other party to the proceeding proves that the

proposed agreement would not be an unsolicited

consumer agreement if it were made.

71. Meaning of dealer

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

(a) enters into negotiations with a consumer with a view

to making an agreement for the supply of goods or

services to the consumer; or

(b) calls on, or telephones, a consumer for the purpose

of entering into such negotiations;

whether or not that person is, or is to be, the supplier of the

goods or services.

72. Meaning of negotiation

A negotiation, in relation to an agreement or a proposed

agreement, includes any discussion or dealing directed

towards the making of the agreement or proposed

agreement (whether or not the terms of the agreement or

proposed agreement are open to any discussion or dealing).

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page 157 [This compilation shows amendments proposed by Bill No. 19-2.]

Subdivision B — Negotiating unsolicited consumer agreements

73. Permitted hours for negotiating an unsolicited consumer

agreement

(1) A dealer must not call on a person for the purpose of

negotiating an unsolicited consumer agreement, or for an

incidental or related purpose:

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

(b) before 9 am on any other day; or

(c) after 6 pm on any other day (or after 5 pm if the

other day is a Saturday).

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

this subsection.

(2) Subsection (1) does not apply if the dealer calls on the

person in accordance with consent that:

(a) was given by the person to the dealer or a person

acting on the dealer’s behalf; and

(b) was not given in the presence of the dealer or a

person acting on the dealer’s behalf.

Note: The Do Not Call Register Act 2006 may apply to a telephone

call made for the purpose of negotiating an unsolicited

consumer agreement.

74. Disclosing purpose and identity

A dealer who calls on a person for the purpose of

negotiating an unsolicited consumer agreement, or for an

incidental or related purpose, must, as soon as practicable

and in any event before starting to negotiate:

(a) clearly advise the person that the dealer’s purpose is

to seek the person’s agreement to a supply of the

goods or services concerned; and

(b) clearly advise the person that the dealer is obliged to

leave the premises immediately on request; and

(c) provide to the person such information relating to

the dealer’s identity as is prescribed by the

regulations.

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

this section.

75. Ceasing to negotiate on request

(1) A dealer who calls on a person at any premises for the

purpose of negotiating an unsolicited consumer agreement,

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or for an incidental or related purpose, must leave the

premises immediately on the request of:

(a) the occupier of the premises, or any person acting

with the actual or apparent authority of the occupier;

or

(b) the person (the prospective consumer) with whom

the negotiations are being conducted.

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

this subsection.

(2) If the prospective consumer makes such a request, the

dealer must not contact the prospective consumer for the

purpose of negotiating an unsolicited consumer agreement

(or for an incidental or related purpose) for at least 30 days

after the prospective consumer makes the request.

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

this subsection.

(3) If the dealer is not, or is not to be, the supplier of the goods

or services to which the negotiations relate:

(a) subsection (2) applies to that supplier, and any

person acting on behalf of that supplier, in the same

way that it applies to the dealer; but

(b) subsection (2) does not apply to the dealer

contacting the prospective customer in relation to a

supply by another supplier.

76. Informing person of termination period etc.

A dealer must not make an unsolicited consumer

agreement with a person unless:

(a) before the agreement is made, the person is given

information as to the following:

(i) the person’s right to terminate the agreement

during the termination period;

(ii) the way in which the person may exercise

that right;

(iii) such other matters as are prescribed by the

regulations; and

(b) if the agreement is made in the presence of both the

dealer and the person — the person is given the

information in writing; and

(c) if the agreement is made by telephone — the person

is given the information by telephone, and is

subsequently given the information in writing; and

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(d) the form in which, and the way in which, the person

is given the information complies with any other

requirements prescribed by the regulations.

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

this section.

77. Liability of suppliers for contraventions by dealers

If:

(a) a dealer contravenes a provision of this Subdivision in

relation to an unsolicited consumer agreement; and

(b) the dealer is not, or is not to be, the supplier of the

goods or services to which the agreement relates;

the supplier of the goods or services is also taken to have

contravened that provision in relation to the agreement.

Subdivision C — Requirements for unsolicited consumer agreements etc.

78. Requirement to give document to the consumer

(1) If an unsolicited consumer agreement was not negotiated

by telephone, the dealer who negotiated the agreement

must give a copy of the agreement to the consumer under

the agreement immediately after the consumer signs the

agreement.

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

this subsection.

(2) If an unsolicited consumer agreement was negotiated by

telephone, the dealer who negotiated the agreement must,

within 5 business days after the agreement was made or

such longer period agreed by the parties, give to the

consumer under the agreement:

(a) personally; or

(b) by post; or

(c) with the consumer’s consent — by electronic

communication;

a document (the agreement document) evidencing the

agreement.

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

this subsection.

(3) An unsolicited consumer agreement was negotiated by

telephone if the negotiations that resulted in the making of

the agreement took place by telephone (whether or not

other negotiations preceded the making of the agreement).

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page 160 [This compilation shows amendments proposed by Bill No. 19-2.]

79. Requirements for all unsolicited consumer agreements etc.

The supplier under an unsolicited consumer agreement

must ensure that the agreement, or (if the agreement was

negotiated by telephone) the agreement document,

complies with the following requirements:

(a) it must set out in full all the terms of the agreement,

including:

(i) the total consideration to be paid or provided

by the consumer under the agreement or, if

the total consideration is not ascertainable at

the time the agreement is made, the way in

which it is to be calculated; and

(ii) any postal or delivery charges to be paid by

the consumer;

(b) its front page must include a notice that:

(i) conspicuously and prominently informs the

consumer of the consumer’s right to

terminate the agreement; and

(ii) conspicuously and prominently sets out any

other information prescribed by the

regulations; and

(iii) complies with any other requirements

prescribed by the regulations;

(c) it must be accompanied by a notice that:

(i) may be used by the consumer to terminate

the agreement; and

(ii) complies with any requirements prescribed

by the regulations;

(d) it must conspicuously and prominently set out in

full:

(i) the supplier’s name; and

(ii) if the supplier has an ABN — the supplier’s

ABN; and

(iii) if the supplier does not have an ABN but has

an ACN — the supplier’s ACN; and

(iv) the supplier’s business address (not being a

post box) or, if the supplier does not have a

business address, the supplier’s residential

address; and

(v) if the supplier has an email address — the

supplier’s email address; and

(vi) if the supplier has a fax number — the

supplier’s fax number;

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(e) it must be printed clearly or typewritten (apart from

any amendments to the printed or typewritten form,

which may be handwritten);

(f) it must be transparent.

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

this section.

80. Additional requirements for unsolicited consumer agreements not

negotiated by telephone

The supplier under an unsolicited consumer agreement that

was not negotiated by telephone must ensure that, in

addition to complying with the requirements of section 79,

the agreement complies with the following requirements:

(a) the agreement must be signed by the consumer under

the agreement;

(b) if the agreement is signed by a person on the

supplier’s behalf — the agreement must state that

the person is acting on the supplier’s behalf, and

must set out in full:

(i) the person’s name; and

(ii) the person’s business address (not being a

post box) or, if the person does not have a

business address, the person’s residential

address; and

(iii) if the person has an email address — the

person’s email address.

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

this section.

81. Requirements for amendments of unsolicited consumer

agreements

The supplier under an unsolicited consumer agreement

must ensure that any amendments to the agreement are

signed by both parties to the agreement.

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

this section.

Subdivision D — Terminating unsolicited consumer agreements

82. Terminating an unsolicited consumer agreement during the

termination period

(1) The consumer under an unsolicited consumer agreement

may, during the period provided under subsection (3),

terminate the agreement by indicating, in an oral or written

notice to the supplier under the agreement, an intention to

terminate the agreement.

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page 162 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) A right of termination under this section may be exercised:

(a) despite affirmation of the agreement by the

consumer; and

(b) even though the agreement has been fully executed.

(3) The period during which the consumer may terminate the

agreement is whichever of the following periods is the

longest:

(a) if the agreement was not negotiated by telephone —

the period starting on the day on which the

agreement was made and ending at the end of the

tenth business day after the day on which the

agreement was made;

(b) if the agreement was negotiated by telephone — the

period starting on the day on which the agreement

was made and ending at the end of the tenth business

day after the day on which the consumer was given

the agreement document relating to the agreement;

(c) if one or more of sections 73 (permitted hours for

negotiating an unsolicited consumer agreement), 74

(disclosing purpose and identity) and 75 (ceasing to

negotiate on request) were contravened in relation to

the agreement:

(i) if the agreement was not negotiated by

telephone—the period starting on the day on

which the agreement was made and ending

at the end of the period of 3 months starting

on the day after the day on which the

agreement was made; or

(ii) if the agreement was negotiated by

telephone—the period starting on the day on

which the agreement was made and ending

at the end of the period of 3 months starting

on the day after the day on which the

consumer was given the agreement

document relating to the agreement;

(d) if one or more of section 76 (informing consumer of

termination period), a provision of Subdivision C

(requirements for unsolicited consumer agreements)

and section 86 (prohibition on supplies etc.) were

contravened in relation to the agreement:

(i) if the agreement was not negotiated by

telephone—the period starting on the day on

which the agreement was made and ending

at the end of the period of 6 months starting

on the day after the day on which the

agreement was made; or

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(ii) if the agreement was negotiated by

telephone—the period starting on the day on

which the agreement was made and ending

at the end of the period of 6 months starting

on the day after the day on which the

consumer was given the agreement

document relating to the agreement;

(e) such other period as the agreement provides.

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

given:

(a) by delivering it personally to the supplier; or

(b) by delivering it, or sending it by post, in an envelope

addressed to the supplier, to the supplier’s address

referred to in section 79(d)(iv); or

(c) if the supplier has an email address — by sending it

to the supplier’s email address referred to in

section 79(d)(v); or

(d) if the supplier has a fax number — by faxing it to the

supplier’s fax number referred to in

section 79(d)(vi).

(5) A notice under subsection (1) sent by post to a supplier is

taken to have been given to the supplier at the time of

posting.

(6) There are no requirements relating to the form or content of

a notice under subsection (1).

83. Effect of termination

(1) If an unsolicited consumer agreement is terminated in

accordance with section 82:

(a) the agreement is taken to have been rescinded by

mutual consent; and

(b) any related contract or instrument is void.

(2) A related contract or instrument, in relation to an

unsolicited consumer agreement, is:

(a) any contract of guarantee or indemnity that is related

to the agreement; or

(b) any instrument related to the agreement that creates

a mortgage or charge in favour of the supplier under

the contract or the dealer in relation to the contract

(or a person nominated by the supplier or dealer); or

(c) any contract or instrument (other than an instrument

of a kind referred to in paragraph (b)) that is

collateral or related to the agreement;

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page 164 [This compilation shows amendments proposed by Bill No. 19-2.]

but does not include a tied continuing credit contract

(within the meaning of section 127(2) of Schedule 1 to the

National Consumer Credit Protection Act 2009), or a tied

loan contract (within the meaning of section 127(3) of that

Schedule).

(3) The termination of an unsolicited consumer agreement has

effect for the purposes of section 82 and this section even

if:

(a) the supplier under the agreement has not received

the notice of termination; or

(b) the goods or services supplied under the agreement

have been wholly or partly consumed or used.

84. Obligations of suppliers on termination

If an unsolicited consumer agreement is terminated in

accordance with section 82, the supplier under the

agreement must, immediately upon being notified of the

termination, return or refund to the consumer under the

agreement any consideration (or the value of any

consideration) that the consumer gave under the agreement

or a related contract or instrument.

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

this section.

85. Obligations and rights of consumers on termination

(1) If an unsolicited consumer agreement is terminated in

accordance with section 82, the consumer under the

agreement must, within a reasonable time:

(a) return to the supplier under the agreement any

goods:

(i) that have been received from the supplier

under the agreement; and

(ii) that the consumer has not already consumed;

or

(b) notify the supplier of the place where the

supplier may collect the goods.

(2) The goods become the property of the consumer, freed and

discharged from all liens and charges of any description, if:

(a) the consumer gives notice to the supplier under

subsection (1)(b); and

(b) the supplier does not collect the goods within

30 days after the termination of the contract.

Fair Trading Act 2010

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Specific protections Chapter 3

s. 85

page 165 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) If:

(a) the agreement is terminated in accordance with

section 82 after the end of:

(i) if the agreement was not negotiated by

telephone — the period starting on the day

on which the agreement was made and

ending at the end of the tenth business day

after the day on which the agreement was

made; or

(ii) if the agreement was negotiated by

telephone — the period starting on the day

on which the agreement was made and

ending at the end of the tenth business day

after the day on which the consumer was

given the agreement document relating to

the agreement; and

(b) the consumer returns the goods to the supplier, or the

supplier collects the goods, under this section; and

(c) the consumer has failed to take reasonable care of

the goods;

the consumer is liable to pay compensation to the supplier for

the damage to, or depreciation in the value of, the goods.

(4) The compensation is recoverable in a court of competent

jurisdiction.

(5) However, the consumer is not liable for any such damage

or depreciation attributable to normal use of the goods or to

circumstances beyond the consumer’s control.

(6) If:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82 after the end of:

(i) if the agreement was not negotiated by

telephone — the period starting on the day

on which the agreement was made and

ending at the end of the tenth business day

after the day on which the agreement was

made; or

(ii) if the agreement was negotiated by

telephone — the period starting on the day

on which the agreement was made and

ending at the end of the tenth business day

after the day on which the consumer was

given the agreement document relating to

the agreement; and

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Chapter 3 Specific protections

s. 86

page 166 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) prior to the termination, but after the end of that

period, a service was supplied under the agreement;

the termination does not affect any liability of the consumer

under the agreement to provide consideration for the service.

86. Prohibition on supplies etc.

(1) The supplier under an unsolicited consumer agreement

must not:

(a) supply to the consumer under the agreement the

goods or services to be supplied under the

agreement; or

(b) accept any payment, or any other consideration, in

connection with those goods or services; or

(c) require any payment, or any other consideration, in

connection with those goods or services;

during:

(d) if the agreement was not negotiated by telephone —

the period starting on the day on which the

agreement was made and ending at the end of the

tenth business day after the day on which the

agreement was made; or

(e) if the agreement was negotiated by telephone — the

period starting on the day on which the agreement

was made and ending at the end of the tenth business

day after the day on which the consumer was given

the agreement document relating to the agreement.

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

this subsection.

(2) If the supplier supplies goods to the consumer in

contravention of this section, the consumer has the same

rights in relation to the goods as if the goods were

unsolicited goods.

Note: Section 41 deals with unsolicited goods.

(3) If the supplier supplies services to the consumer in

contravention of this section, the consumer has the same

rights in relation to the services as if the services were

unsolicited services.

Note: Section 42 deals with unsolicited services.

87. Repayment of payments received after termination

If an unsolicited consumer agreement is terminated in

accordance with section 82, the supplier under the

agreement must immediately refund to the consumer under

the agreement any payment:

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page 167 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) that the consumer, or a person acting on the

consumer’s behalf, makes to the supplier after the

termination; and

(b) that purports to be made under the agreement or a

related contract or instrument.

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

this section.

88. Prohibition on recovering amounts after termination

(1) If an unsolicited consumer agreement is terminated in

accordance with section 82, a person must not:

(a) bring, or assert an intention to bring, legal

proceedings against the consumer; or

(b) take, or assert an intention to take, any other action

against the consumer;

in relation to an amount alleged to be payable, under the

agreement or a related contract or instrument, by the

consumer under the agreement.

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

this subsection.

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

(a) bringing, or asserting an intention to bring, legal

proceedings against the consumer; or

(b) taking, or asserting an intention to take, any other

action against the consumer;

to enforce a liability under section 85(3), or a liability of a

kind referred to in section 85(6).

(2) If an unsolicited consumer agreement is terminated in

accordance with section 82, a person must not, for the

purpose of recovering an amount alleged to be payable,

under the agreement or a related contract or instrument, by

the consumer under the agreement:

(a) place the consumer’s name, or cause the consumer’s

name to be placed, on a list of defaulters or debtors;

or

(b) assert an intention to place the consumer’s name, or

cause the consumer’s name to be placed, on such a

list.

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

this subsection.

(3) Without limiting Division 2 of Part 5-2, an injunction

granted under that Division may require a person

responsible for keeping a list of defaulters or debtors on

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Chapter 3 Specific protections

s. 89

page 168 [This compilation shows amendments proposed by Bill No. 19-2.]

which the consumer’s name has been wrongly placed to

remove the name from that list.

Subdivision E — Miscellaneous

89. Certain provisions of unsolicited consumer agreements void

(1) A provision (however described) of an unsolicited

consumer agreement is void if it has the effect of, or

purports to have the effect of:

(a) excluding, limiting, modifying or restricting a right

of the consumer under the agreement to terminate

the agreement under this Division; or

(b) otherwise excluding, limiting, modifying or

restricting the effect or operation of this Division; or

(c) making a dispute relating to the agreement, or to a

supply to which the agreement relates, justiciable by

a court by which the dispute would not otherwise be

justiciable.

(2) The supplier under an unsolicited consumer agreement

must ensure that the agreement does not include, or purport

to include, a provision (however described) that is, or

would be, void because of subsection (1).

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

this subsection.

(3) The supplier under an unsolicited consumer agreement

must not attempt to enforce or rely on a provision

(however described) that is void because of subsection (1).

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

this subsection.

90. Waiver of rights

(1) The consumer under an unsolicited consumer agreement is

not competent to waive any right conferred by this

Division.

(2) The supplier under the unsolicited consumer agreement

must not induce, or attempt to induce, the consumer to

waive any right conferred by this Division.

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

this subsection.

91. Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

(1) This Division applies in relation to a person to whom the

rights of a consumer (the original consumer) under a

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page 169 [This compilation shows amendments proposed by Bill No. 19-2.]

contract for the supply of goods or services are assigned or

transferred, or pass by operation of law, (whether from the

original consumer or from another person) as if the person

were the original consumer.

(2) This Division applies in relation to a person to whom the

rights of a supplier (the original supplier) under a contract

for the supply of goods or services are assigned or

transferred, or pass by operation of law, (whether from the

original supplier or from another person) as if the person

were the original supplier.

92. Application of this Division to supplies to third parties

This Division applies in relation to a contract for the

supply of goods or services to a consumer (the original

consumer) on the order of another person as if the other

person were also the consumer.

93. Effect of contravening this Division

(1) The supplier under an unsolicited consumer agreement

cannot enforce the agreement against the consumer under

the agreement if a provision of this Division (other than

section 85) has been contravened in relation to the

agreement.

(2) This section does not prevent any action being taken under

this Schedule in relation to the contravention.

94. Regulations may limit the application of this Division

This Division (other than section 73) does not apply, or

provisions of this Division (other than section 73) that are

specified in the regulations do not apply, to or in relation

to:

(a) circumstances of a kind specified in the regulations;

or

(b) agreements of a kind specified in the regulations; or

(c) the conduct of businesses of a kind specified in the

regulations.

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

Corporations Act

This Division does not apply in relation to conduct to

which section 736, 992A or 992AA of the Corporations

Act 2001 applies.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 96

page 170 [This compilation shows amendments proposed by Bill No. 19-2.]

Note: Section 736 of the Corporations Act 2001 prohibits hawking

of securities. Section 992A of that Act prohibits hawking of

certain financial products. Section 992AA of that Act

prohibits hawking of interests in managed investment

schemes (which for the purposes of that Act include interests

in notified foreign passport funds).

Division 3 — Lay-by agreements

96. Lay-by agreements must be in writing etc.

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

must ensure that:

(a) the agreement is in writing; and

(b) a copy of the agreement is given to the consumer to

whom the goods are, or are to be, supplied.

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

this subsection.

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

must ensure that the agreement is transparent.

(3) A lay-by agreement is an agreement between a supplier of

goods and a consumer for the supply, in trade or

commerce, of the goods on terms (whether express or

implied) which provide that:

(a) the goods will not be delivered to the consumer until

the total price of the goods has been paid; and

(b) the price of the goods is to be paid by:

(i) 3 or more instalments; or

(ii) if the agreement specifies that it is a lay-by

agreement — 2 or more instalments.

(4) For the purposes of subsection (3)(b), any deposit paid by

the consumer for the goods is taken to be an instalment.

97. Termination of lay-by agreements by consumers

(1) A consumer who is party to a lay-by agreement may

terminate the agreement at any time before the goods to

which the agreement relates are delivered to the consumer

under the agreement.

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

must ensure that the agreement does not require the

consumer to pay a charge (a termination charge) for the

termination of the agreement unless:

(a) the agreement is terminated by the consumer; and

(b) the supplier has not breached the agreement.

Fair Trading Act 2010

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Specific protections Chapter 3

s. 98

page 171 [This compilation shows amendments proposed by Bill No. 19-2.]

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

this subsection.

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

must ensure that, if the agreement provides that a

termination charge is payable, the amount of the charge is

not more than the supplier’s reasonable costs in relation to

the agreement.

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

this subsection.

98. Termination of lay-by agreements by suppliers

A supplier of goods who is a party to a lay-by agreement

must not terminate the agreement unless:

(a) the consumer who is a party to the agreement

breached a term of the agreement; or

(b) the supplier is no longer engaged in trade or

commerce; or

(c) the goods to which the agreement relates are no

longer available.

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

this section.

99. Effect of termination

(1) If a lay-by agreement is terminated by a party to the

agreement, the supplier must refund to the consumer all the

amounts paid by the consumer under the agreement other

than any termination charge that is payable under the

agreement.

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

this subsection.

(2) The supplier is entitled to recover any unpaid termination

charge from the consumer as a debt if the amounts paid by

the consumer under the lay-by agreement are not enough to

cover the charge.

(3) If a lay-by agreement is terminated by a party to the

agreement, the supplier is not entitled to damages, or to

enforce any other remedy, in relation to that termination

except as provided for by this section.

Fair Trading Act 2010

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Chapter 3 Specific protections

s. 99A

page 172 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 3A—Gift cards

Subdivision A—Introduction

99A. Meaning of gift card

A gift card is:

(a) an article (whether in physical or electronic form)

that:

(i) is of a kind that is commonly known as a gift

card or gift voucher; and

(ii) is redeemable for goods or services; or

(b) an article of a kind specified in regulations made for

the purposes of this paragraph;

but does not include an article of a kind specified in the

regulations.

Subdivision B—Requirements relating to gift cards

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

(1) A person must not, in trade or commerce, supply a gift card

to a consumer if the day that the gift card ceases to be

redeemable is earlier than 3 years after the day of that

supply.

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

this subsection.

(2) If:

(a) a gift card is, in trade or commerce, supplied to a

consumer; and

(b) the day that the gift card ceases to be redeemable is

earlier than 3 years after the day of that supply;

the day that the gift card ceases to be redeemable is taken

to be 3 years after the day of that supply.

(3) Subsection (2) does not affect a person’s liability for an

alleged contravention of subsection (1) or section 191A.

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

gift card

A person must not, in trade or commerce, supply a gift card

to a consumer if one of the following does not appear

prominently on the gift card:

(a) the date the gift card ceases to be redeemable;

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Specific protections Chapter 3

s. 99D.

page 173 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the month and year the gift card ceases to be

redeemable;

(c) the date the gift card is supplied and a statement that

identifies the period during which the gift card is

redeemable;

(d) the month and year the gift card is supplied and a

statement that identifies the period during which the

gift card is redeemable;

(e) the words “no expiry date” or words to that effect.

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

this section.

99D. Terms and conditions not to allow post-supply fees

(1) A person must not, in trade or commerce, supply a gift card

to a consumer if the terms or conditions (however

described) of the gift card allow or require the payment of

a post-supply fee in relation to the gift card.

Note: A pecuniary penalty may be imposed for a contravention

of this subsection.

(2) A post-supply fee is a fee or charge payable in relation to a

gift card after it is supplied to a consumer, other than a fee

or charge of a kind specified in the regulations.

99E. Post-supply fees not to be demanded or received

A person must not, in trade or commerce, demand or

receive payment of a post-supply fee in relation to a gift

card.

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

this subsection.

99F. Certain terms and conditions of gift card void

(1) A term or condition (however described) of a gift card is

void if it has the effect of, or purports to have the effect of:

(a) allowing or requiring the payment of a post-supply

fee in relation to the gift card; or

(b) reducing the period that the gift card ceases to be

redeemable to a period that ends earlier than 3 years

after the day the gift card is supplied to a consumer.

(2) The supplier of a gift card must ensure that the terms or

conditions (however described) of the gift card do not

include, or purport to include, a term or condition that is, or

would be, void because of subsection (1).

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

this subsection.

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Chapter 3 Specific protections

s. 99G

page 174 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) This section does not affect a person’s liability for an

alleged contravention of:

(a) section 99B(1); or

(b) section 99C; or

(c) section 99D(1); or

(d) section 99E; or

(e) section 191A; or

(f) section 191B; or

(g) section 191C; or

(h) section 191D.

Subdivision C—Miscellaneous

99G. Regulations may limit application of this Division

The regulations may provide that some or all of the

provisions of this Division do not apply to or in relation to:

(a) gift cards of a kind prescribed by the regulations; or

(b) persons of a kind prescribed by the regulations; or

(c) gift cards supplied in circumstances prescribed by

the regulations.

Division 4 — Miscellaneous

100. Supplier must provide proof of transaction etc.

(1) If:

(a) a person (the supplier), in trade or commerce,

supplies goods or services to a consumer; and

(b) the total price (excluding GST) of the goods or

services is $75 or more;

the supplier must give the consumer a proof of transaction

as soon as practicable after the goods or services are so

supplied.

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

this subsection.

(2) If:

(a) a person (the supplier), in trade or commerce,

supplies goods or services to a consumer; and

(b) the total price (excluding GST) of the goods or

services is less than $75;

the consumer may request a proof of transaction from the

supplier as soon as practicable after the goods or services

are so supplied.

Fair Trading Act 2010

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page 175 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) If a request is made under subsection (2), the supplier must

give the proof of transaction within 7 days after the request

is made.

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

this subsection.

(4) A proof of transaction for a supply of goods or services to

a consumer is a document that:

(a) identifies the supplier of the goods or services; and

(b) if the supplier has an ABN — states the supplier’s

ABN; and

(c) if the supplier does not have an ABN but has an

ACN — states the supplier’s ACN; and

(d) states the date of the supply; and

(e) states the goods or services supplied to the

consumer; and

(f) states the price of the goods or services.

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

(a) a tax invoice within the meaning of the A New Tax

System (Goods and Services Tax) Act 1999;

(b) a cash register receipt;

(c) a credit card or debit card statement;

(d) a handwritten receipt;

(e) a lay-by agreement;

(f) a confirmation or receipt number provided for a

telephone or internet transaction.

(5) The supplier must ensure that the proof of transaction

given under subsection (1) or (3) is transparent.

101. Consumer may request an itemised bill

(1) If a person (the supplier), in trade or commerce, supplies

services to a consumer, the consumer may request that the

supplier give the consumer an itemised bill that:

(a) specifies how the price of the services was

calculated; and

(b) includes, if applicable, the number of hours of labour

that related to the supply of the services and the

hourly rate for that labour; and

(c) includes, if applicable, a list of the materials used to

supply the services and the amount charged for those

materials.

(2) The request under subsection (1) must be made within

30 days after:

(a) the services are supplied; or

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page 176 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the consumer receives a bill or account from the

supplier for the supply of the services;

whichever occurs later.

(3) The supplier must give the consumer the itemised bill

within 7 days after the request is made.

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

this subsection.

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

bill.

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

this subsection.

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

transparent.

102. Prescribed requirements for warranties against defects

(1) The regulations may prescribe requirements relating to the

form and content of warranties against defects.

(2) A person must not, in connection with the supply, in trade

or commerce, of goods or services to a consumer:

(a) give to the consumer a document that evidences a

warranty against defects that does not comply with

the requirements prescribed for the purposes of

subsection (1); or

(b) represent directly to the consumer that the goods or

services are goods or services to which such a

warranty against defects relates.

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

this subsection.

(3) A warranty against defects is a representation

communicated to a consumer in connection with the supply

of goods or services, at or about the time of supply, to the

effect that a person will (unconditionally or on specified

conditions):

(a) repair or replace the goods or part of them; or

(b) provide again or rectify the services or part of them;

or

(c) wholly or partly recompense the consumer;

if the goods or services or part of them are defective, and

includes any document by which such a representation is

evidenced.

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page 177 [This compilation shows amendments proposed by Bill No. 19-2.]

103. Repairers must comply with prescribed requirements

(1) The regulations may prescribe requirements relating to the

form and content of notices to be given relating to the

repair of goods supplied to a consumer.

(2) A person (the repairer) must not, in trade or commerce,

accept from another person goods that the other person

acquired as a consumer if the repairer:

(a) accepts the goods for the purpose of repairing them;

and

(b) does not give to the other person a notice that

complies with the requirements prescribed for the

purposes of subsection (1).

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

this subsection.

Part 3-3 Safety of consumer goods and product related

services

Division 1 — Safety standards

104. Making safety standards for consumer goods and product related

services

(1) The Commonwealth Minister may, by written notice

published on the internet, make a safety standard for one

or both of the following:

(a) consumer goods of a particular kind;

(b) product related services of a particular kind.

(2) A safety standard for consumer goods of a particular kind

may consist of such requirements about the following

matters as are reasonably necessary to prevent or reduce

risk of injury to any person:

(a) the performance, composition, contents, methods of

manufacture or processing, design, construction,

finish or packaging of consumer goods of that kind;

(b) the testing of consumer goods of that kind during, or

after the completion of, manufacture or processing;

(c) the form and content of markings, warnings or

instructions to accompany consumer goods of that

kind.

(3) A safety standard for product related services of a

particular kind may consist of such requirements about the

following matters as are reasonably necessary to prevent or

reduce risk of injury to any person:

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Chapter 3 Specific protections

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page 178 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) the manner in which services of that kind are

supplied (including, but not limited to, the method of

supply);

(b) the skills or qualifications of persons who supply

such services;

(c) the materials used in supplying such services;

(d) the testing of such services;

(e) the form and content of warnings, instructions or

other information about such services.

105. Declaring safety standards for consumer goods and product

related services

(1) The Commonwealth Minister may, by written notice

published on the internet, declare that the following is a

safety standard for consumer goods, or product related

services, of a kind specified in the instrument:

(a) a particular standard, or a particular part of a

standard, prepared or approved by Standards

Australia or by an association prescribed by the

regulations;

(b) such a standard, or such a part of a standard, with

additions or variations specified in the notice.

(2) The Commonwealth Minister must not declare under

subsection (1) that a standard, or a part of a standard,

referred to in that subsection is a safety standard for:

(a) consumer goods of a particular kind; or

(b) product related services of a particular kind;

if that standard or part is inconsistent with a safety standard

for those goods or services that is in force and that was

made under section 104(1).

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

standards

(1) A person must not, in trade or commerce, supply consumer

goods of a particular kind if:

(a) a safety standard for consumer goods of that kind is

in force; and

(b) those goods do not comply with the standard.

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

this subsection.

Fair Trading Act 2010

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Specific protections Chapter 3

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page 179 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) A person must not, in trade or commerce, offer for supply

(other than for export) consumer goods the supply of which

is prohibited by subsection (1).

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

this subsection.

(3) A person must not, in or for the purposes of trade or

commerce, manufacture, possess or have control of

consumer goods the supply of which is prohibited by

subsection (1).

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

this subsection.

(4) In a proceeding under Part 5-2 in relation to a

contravention of subsection (3), it is a defence if the

defendant proves that the defendant’s manufacture,

possession or control of the goods was not for the purpose

of supplying the goods (other than for export).

(5) A person must not, in trade or commerce, export consumer

goods the supply of which is prohibited by subsection (1)

unless:

(a) the person applies, in writing, to the Commonwealth

Minister for an approval to export those goods; and

(b) the Commonwealth Minister gives such an approval

by written notice given to the person.

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

this subsection.

(6) If the Commonwealth Minister gives an approval under

subsection (5), he or she must cause a statement setting out

particulars of the approval to be tabled in each House of

the Parliament of the Commonwealth within 7 sitting days

of that House after the approval is given.

(7) If:

(a) a person supplies consumer goods in contravention

of this section; and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous

characteristic of, the goods; or

(ii) because of a reasonably foreseeable use

(including a misuse) of the goods; or

(iii) because, contrary to the safety standard, he

or she was not provided with particular

information in relation to the goods; and

(c) the other person would not have suffered the loss or

damage if the goods had complied with the safety

standard;

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the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

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

safety standards

(1) A person must not, in trade or commerce, supply product

related services of particular kind if:

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

and

(b) those services do not comply with the standard.

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

this subsection.

(2) A person must not, in trade or commerce, offer for supply

product related services the supply of which is prohibited

by subsection (1).

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

this subsection.

(3) If:

(a) a person supplies product related services in

contravention of this section; and

(b) another person suffers loss or damage:

(i) because of defect in, or a dangerous

characteristic of, consumer goods that results

from the services being supplied; or

(ii) because of a reasonably foreseeable use

(including a misuse) of consumer goods that

results from the services being supplied; or

(iii) because, contrary to the safety standard, he

or she was not provided with particular

information in relation to the services; and

(c) the other person would not have suffered the loss or

damage if the services had complied with the safety

standard;

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

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page 181 [This compilation shows amendments proposed by Bill No. 19-2.]

108. Requirement to nominate a safety standard

If:

(a) a safety standard for consumer goods of a particular

kind is in force; and

(b) the standard specifies, as alternative methods of

complying with the standard (or part of the

standard), 2 or more sets of requirements relating to

goods of that kind; and

(c) the regulator gives to a supplier of goods of that kind

a written request that the supplier nominate which of

those sets of requirements the supplier intends to

comply with as the supplier’s method of complying

with the standard;

the supplier must, within the period specified in the

request, give to the regulator a written notice specifying

which of those sets of requirements the supplier intends to

comply with as the supplier’s method of complying with

the standard.

Division 2 — Bans on consumer goods and product related services

Subdivision A — Interim bans

109. Interim bans on consumer goods or product related services that

will or may cause injury to any person etc.

(1) A responsible Minister may, by written notice published on

the internet, impose an interim ban on consumer goods of

a particular kind if:

(a) it appears to the responsible Minister that:

(i) consumer goods of that kind will or may

cause injury to any person; or

(ii) a reasonably foreseeable use (including a

misuse) of consumer goods of that kind will

or may cause injury to any person; or

(b) another responsible Minister has imposed, under

paragraph (a), an interim ban:

(i) on consumer goods of the same kind; or

(ii) on consumer goods of a kind that includes

those goods;

and that ban is still in force.

(2) A responsible Minister may, by written notice published on

the internet, impose an interim ban on product related

services of a particular kind if:

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(a) it appears to the responsible Minister that:

(i) as a result of services of that kind being

supplied, consumer goods of a particular

kind will or may cause injury to any person;

or

(ii) a reasonably foreseeable use (including a

misuse) of consumer goods of a particular

kind, to which such services relate, will or

may cause injury to any person as a result of

such services being supplied; or

(b) another responsible Minister has imposed, under

paragraph (a), an interim ban:

(i) on product related services of the same kind;

or

(ii) on product related services that include those

services;

and that ban is still in force.

110. Places in which interim bans apply

(1) An interim ban imposed by the Commonwealth Minister

applies in all States and Territories.

(2) An interim ban imposed by a responsible Minister who is

Minister of a State applies in the State.

(3) An interim ban imposed by a responsible Minister who is a

Minister of a Territory applies in the Territory.

111. Ban period for interim bans

(1) An interim ban imposed by a responsible Minister is in

force during the period (the ban period) that:

(a) starts on the day (the start day) specified in the

notice imposing the ban; and

(b) subject to this Subdivision, ends at the end of

60 days after the start day.

(2) Before the ban period for the interim ban ends, the

responsible Minister may, by written notice published on

the internet, extend the ban period for the ban by a period

of up to 30 days.

(3) If:

(a) the ban period for the interim ban is extended under

subsection (2); and

(b) the extended ban period for the ban has not ended;

and

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(c) the interim ban was not imposed by the

Commonwealth Minister;

the responsible Minister may, in writing, request the

Commonwealth Minister to extend the extended ban period

for the ban.

(4) If a request is made under subsection (3), the

Commonwealth Minister may, by written notice published

on the internet, extend the extended ban period for the

interim ban by a further period of up to 30 days.

(5) If:

(a) a request is made under subsection (3); and

(b) the Commonwealth Minister has not made a decision

on the request immediately before the extended ban

period for the interim ban is to end;

the Commonwealth Minister is taken to have decided to

extend the extended ban period for the ban by a further

period of 30 days.

(6) If:

(a) the ban period for the interim ban is extended under

subsection (2); and

(b) the extended ban period for the ban has not ended;

and

(c) the interim ban was imposed by the Commonwealth

Minister;

the Commonwealth Minister may, by written notice

published on the internet, extend the extended ban period

for the interim ban by a further period of up to 30 days.

112. Interaction of multiple interim bans

(1) If:

(a) an interim ban (the original ban) on consumer goods

of a particular kind (the banned goods) is imposed

by a responsible Minister other than the

Commonwealth Minister; and

(b) while the original ban is in force, the

Commonwealth Minister imposes an interim ban

(the Commonwealth ban):

(i) on the banned goods; or

(ii) on consumer goods of a kind that includes

the banned goods;

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the original ban, to the extent that it is a ban on the banned

goods, ceases to be in force immediately before the

Commonwealth ban comes into force.

(2) If:

(a) an interim ban (the original ban) on product related

services of a particular kind (the banned services) is

imposed by a responsible Minister other than the

Commonwealth Minister; and

(b) while the original ban is in force, the

Commonwealth Minister imposes an interim ban

(the Commonwealth ban):

(i) on the banned services; or

(ii) on product related services of a kind that

includes the banned services;

the original ban, to the extent that it is a ban on the banned

services, ceases to be in force immediately before the

Commonwealth ban comes into force.

113. Revocation of interim bans

If a responsible Minister imposes an interim ban:

(a) the responsible Minister may, by written notice

published on the internet, revoke the ban at any time;

and

(b) the ban ceases to be in force on the day specified by

the responsible Minister in the notice.

Subdivision B — Permanent bans

114. Permanent bans on consumer goods or product related services

(1) The Commonwealth Minister may, by written notice

published on the internet, impose a permanent ban on

consumer goods of a particular kind if:

(a) one or more interim bans on consumer goods of that

kind (the banned goods), or on consumer goods of a

kind that include the banned goods, are in force; or

(b) it appears to the Commonwealth Minister that:

(i) consumer goods of that kind will or may

cause injury to any person; or

(ii) a reasonably foreseeable use (including a

misuse) of consumer goods of that kind will

or may cause injury to any person.

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(2) The Commonwealth Minister may, by written notice

published on the internet, impose a permanent ban on

product related services of a particular kind if:

(a) one or more interim bans on product related services

of that kind (the banned services), or on product

related services of a kind that include the banned

services, are in force; or

(b) it appears to the Commonwealth Minister that:

(i) as a result of services of that kind being

supplied, consumer goods of a particular

kind will or may cause injury to any person;

or

(ii) a reasonably foreseeable use (including a

misuse) of consumer goods of a particular

kind, to which such services relate, will or

may cause injury to any person as a result of

such services being supplied.

115. Places in which permanent bans apply

A permanent ban applies in all States and Territories.

116. When permanent bans come into force

A permanent ban comes into force on the day specified by

the Commonwealth Minister in the instrument imposing

the ban.

117. Revocation of permanent bans

If the Commonwealth Minister imposes a permanent ban:

(a) the Commonwealth Minister may, by written notice

published on the internet, revoke the ban at any time;

and

(b) the ban ceases to be in force on the day specified by

the Commonwealth Minister in the notice.

Subdivision C — Compliance with interim bans and permanent bans

118. Supplying etc. consumer goods covered by a ban

(1) A person must not, in trade or commerce, supply consumer

goods of a particular kind if:

(a) an interim ban on consumer goods of that kind is in

force in the place where the supply occurs; or

(b) a permanent ban on consumer goods of that kind is

in force.

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

this subsection.

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(2) A person must not, in trade or commerce, offer for supply

(other than for export) consumer goods the supply of which

is prohibited by subsection (1).

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

this subsection.

(3) A person must not, in or for the purposes of trade or

commerce, manufacture, possess or have control of

consumer goods the supply of which is prohibited by

subsection (1).

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

this subsection.

(4) In a proceeding under Part 5-2 in relation to a

contravention of subsection (3), it is a defence if the

defendant proves that the defendant’s manufacture,

possession or control of the goods was not for the purpose

of supplying the goods (other than for export).

(5) A person must not, in trade or commerce, export consumer

goods the supply of which is prohibited by subsection (1)

unless:

(a) the person applies, in writing, to the Commonwealth

Minister for an approval to export those goods; and

(b) the Commonwealth Minister gives such an approval

by written notice given to the person.

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

this subsection.

(6) If the Commonwealth Minister gives an approval under

subsection (5), he or she must cause a statement setting out

particulars of the approval to be tabled in each House of

the Parliament of the Commonwealth within 7 sitting days

of that House after the approval is given.

(7) If:

(a) a person supplies consumer goods in contravention

of subsection (1); and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous

characteristic of, the goods; or

(ii) because of a reasonably foreseeable use

(including a misuse) of the goods;

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

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page 187 [This compilation shows amendments proposed by Bill No. 19-2.]

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

(1) A person must not, in trade or commerce, supply product

related services of a particular kind if:

(a) an interim ban on services of that kind is in force in

the place where the supply occurs; or

(b) a permanent ban on services of that kind is in force.

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

this subsection.

(2) A person must not, in trade or commerce, offer for supply

product related services the supply of which is prohibited

by subsection (1).

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

this subsection.

(3) If:

(a) a person supplies product related services in

contravention of subsection (1); and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous

characteristic of, consumer goods that results

from the services being supplied; or

(ii) because of a reasonably foreseeable use

(including a misuse) of consumer goods that

results from the services being supplied;

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

Subdivision D — Temporary exemption from mutual recognition

principles

120. Temporary exemption under the Trans-Tasman Mutual

Recognition Act 1997

(1) If:

(a) an interim ban on consumer goods of a particular

kind is in force; or

(b) a permanent ban on consumer goods of a particular

kind is in force;

the goods are taken, for the purposes of section 46 of the

Trans-Tasman Mutual Recognition Act 1997, to be goods

of a kind that are declared, in the manner provided by

section 46(2) of that Act, to be exempt from the operation

of that Act.

(2) This section does not affect the application of section 46(4)

of that Act in relation to such an exemption.

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page 188 [This compilation shows amendments proposed by Bill No. 19-2.]

121. Temporary exemption under the Mutual Recognition Act 1992

(1) If:

(a) an interim ban on consumer goods of a particular

kind is in force; and

(b) the interim ban was not imposed by the

Commonwealth Minister;

the goods are taken, for the purposes of section 15 of the

Mutual Recognition Act 1992, to be goods of a kind that

are declared, in the manner provided by section 15(1) of

that Act, to be goods to which that section applies.

(2) This section does not affect the application of section 15(3)

of that Act in relation to such an exemption.

Division 3 — Recall of consumer goods

Subdivision A — Compulsory recall of consumer goods

122. Compulsory recall of consumer goods

(1) A responsible Minister may, by written notice published on

the internet, issue a recall notice for consumer goods of a

particular kind if:

(a) a person, in trade or commerce, supplies consumer

goods of that kind; and

(b) any of the following applies:

(i) it appears to the responsible Minister that

such goods will or may cause injury to any

person;

(ii) it appears to the responsible Minister that a

reasonably foreseeable use (including a

misuse) of such goods will or may cause

injury to any person;

(iii) a safety standard for such goods is in force

and the goods do not comply with the

standard;

(iv) an interim ban, or a permanent ban, on such

goods is in force; and

(c) it appears to the responsible Minister that one or

more suppliers of such goods have not taken

satisfactory action to prevent those goods causing

injury to any person.

(2) It is not necessary for the purposes of subsection (1)(c) for

the responsible Minister to know the identities of any of

the suppliers of the consumer goods of that kind.

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(3) A recall notice for consumer goods may be issued under

subsection (1) even if the consumer goods have become

fixtures since the time they were supplied.

123. Contents of a recall notice

(1) A recall notice for the consumer goods may require one or

more suppliers of the goods, or (if no such supplier is

known to the responsible Minister who issued the notice)

the regulator, to take one or more of the following actions:

(a) recall the goods;

(b) disclose to the public, or to a class of persons

specified in the notice, one or more of the following:

(i) the nature of a defect in, or a dangerous

characteristic of, the goods as identified in

the notice;

(ii) the circumstances as identified in the notice

in which a reasonably foreseeable use or

misuse of the goods is dangerous;

(iii) procedures as specified in the notice for

disposing of the goods;

(c) if the identities of any of those suppliers are known

to the responsible Minister — inform the public, or a

class of persons specified in the notice, that the

supplier undertakes to do whichever of the following

the supplier thinks is appropriate:

(i) unless the notice identifies a dangerous

characteristic of the goods — repair the

goods;

(ii) replace the goods;

(iii) refund to a person to whom the goods were

supplied (whether by the supplier or by

another person) the price of the goods.

(2) The recall notice may specify:

(a) the manner in which the action required to be taken

by the notice must be taken; and

(b) the period within which the action must be taken.

(3) If the recall notice requires the regulator to take action to

recall the consumer goods, the responsible Minister may

specify in the notice that the regulator must retain, destroy

or otherwise dispose of the goods.

(4) If the recall notice requires a supplier of the consumer

goods to take action of a kind referred to in

subsection (1)(c), the responsible Minister may specify in

the notice that, if:

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(a) the supplier undertakes to refund the price of the

goods; and

(b) a period of more than 12 months has elapsed since a

person (whether or not the person to whom the

refund is to be made) acquired the goods from the

supplier;

the amount of a refund may be reduced by the supplier by

an amount calculated in a manner specified in the notice

that is attributable to the use which a person has had of the

goods.

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

(1) This section applies if a recall notice for consumer goods

requires a supplier to take action of a kind referred to in

section 123(1)(c).

(2) If the supplier undertakes to repair the consumer goods, the

supplier must cause the goods to be repaired so that:

(a) any defect in the goods identified in the recall notice

is remedied; and

(b) if a safety standard for the goods is in force — the

goods comply with that standard.

(3) If the supplier undertakes to replace the consumer goods,

the supplier must replace the goods with similar consumer

goods which:

(a) if a defect in, or a dangerous characteristic of, the

goods to be replaced was identified in the recall

notice — do not contain that defect or have that

characteristic; and

(b) if a safety standard for the goods to be replaced is in

force — comply with that standard.

(4) If the supplier undertakes:

(a) to repair the consumer goods; or

(b) to replace the consumer goods;

the cost of the repair or replacement, including any

necessary transportation costs, must be paid by the

supplier.

125. Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

(1) If consumer goods of a particular kind are recalled as

required by a recall notice, a person who has supplied or

supplies those consumer goods to a person outside

Australia must give the person outside Australia a written

notice that complies with subsection (2).

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(2) The notice given under subsection (1) must:

(a) state that the consumer goods are subject to recall;

and

(b) if the consumer goods contain a defect or have a

dangerous characteristic — set out the nature of that

defect or characteristic; and

(c) if a reasonably foreseeable use or misuse of the

consumer goods is dangerous — set out the

circumstances of that use or misuse; and

(d) if the consumer goods do not comply with a safety

standard for such goods that is in force — set out the

nature of the non-compliance; and

(e) if an interim ban, or a permanent ban, on the

consumer goods is in force — state that fact.

(3) The notice under subsection (1) must be given as soon as

practicable after the supply of the consumer goods to the

person outside Australia.

(4) A person who is required to give a notice under

subsection (1) must, within 10 days after giving the notice,

give a copy of the notice to the responsible Minister who

issued the recall notice.

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

this subsection.

126. Interaction of multiple recall notices

If:

(a) a recall notice (the original recall notice) for

consumer goods of a particular kind (the recalled

goods) is issued by a responsible Minister other than

the Commonwealth Minister; and

(b) while the original recall notice is in force, the

Commonwealth Minister issues a recall notice (the

Commonwealth recall notice):

(i) for the recalled goods; or

(ii) for consumer goods of a kind that includes

the recalled goods;

the original recall notice, to the extent that it relates to the

recalled goods, ceases to be in force immediately before

the Commonwealth recall notice is issued.

127. Compliance with recall notices

(1) If:

(a) a recall notice for consumer goods is in force; and

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(b) the notice requires a person (other than the regulator)

to do one or more things;

the person must comply with the notice.

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

this subsection.

(2) If a recall notice for consumer goods is in force, a person

must not, in trade or commerce:

(a) if the notice identifies a defect in, or a dangerous

characteristic of, the consumer goods — supply

consumer goods of the kind to which the notice

relates which contain that defect or have that

characteristic; or

(b) in any other case — supply consumer goods of the

kind to which the notice relates.

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

this subsection.

(3) If:

(a) a person contravenes subsection (1) or (2) in relation

to consumer goods; and

(b) another person suffers loss or damage:

(i) because of a defect in, or a dangerous

characteristic of, the goods; or

(ii) because of a reasonably foreseeable use

(including a misuse) of the goods; or

(iii) because, contrary to the recall notice, the

other person was not provided with

particular information in relation to the

goods;

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of the

contravention.

Subdivision B — Voluntary recall of consumer goods

128. Notification requirements for a voluntary recall of consumer

goods

(1) This section applies if a person voluntarily takes action to

recall consumer goods of a particular kind (including

consumer goods that have become fixtures since being

supplied) because:

(a) the consumer goods will or may cause injury to any

other person; or

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(b) a reasonably foreseeable use (including a misuse) of

the consumer goods will or may cause injury to any

other person; or

(c) a safety standard for the consumer goods is in force

and they do not, or it is likely that they do not,

comply with the standard; or

(d) an interim ban, or a permanent ban, on the consumer

goods is in force.

(2) The person must, within 2 days after taking the action, give

the Commonwealth Minister a written notice that complies

with subsection (7).

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

this subsection.

(3) The Commonwealth Minister may publish a copy of the

notice on the internet.

(4) A person who has supplied or supplies consumer goods of

that kind to another person outside Australia must give the

other person a written notice that complies with

subsection (7).

(5) The notice under subsection (4) must be given as soon as

practicable after the supply of the consumer goods to the

person outside Australia.

(6) A person who is required to give a notice under

subsection (4) must, within 10 days after giving the notice,

give a copy of the notice to the Commonwealth Minister.

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

this subsection.

(7) A notice given under subsection (2) or (4) must:

(a) state that the consumer goods are subject to recall;

and

(b) if the consumer goods contain a defect or have a

dangerous characteristic — set out the nature of that

defect or characteristic; and

(c) if a reasonably foreseeable use or misuse of the

consumer goods is dangerous — set out the

circumstances of that use or misuse; and

(d) if the consumer goods do not, or it is likely that they

do not, comply with a safety standard for the goods

that is in force —set out the nature of the

non-compliance or likely non-compliance; and

(e) if an interim ban, or a permanent ban, on the

consumer goods is in force — state that fact.

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page 194 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 4 — Safety warning notices

129. Safety warning notices about consumer goods and product related

services

(1) A responsible Minister may publish on the internet a

written notice containing one or both of the following:

(a) a statement that consumer goods of a kind specified

in the notice are under investigation to determine

whether:

(i) those goods will or may cause injury to any

person; or

(ii) a reasonably foreseeable use (including a

misuse) of those goods will or may cause

injury to any person;

(b) a warning of possible risks involved in the use of

consumer goods of a kind specified in the notice.

(2) A responsible Minister may publish on the internet a

written notice containing one or both of the following:

(a) a statement that product related services of a kind

specified in the notice are under investigation to

determine whether:

(i) consumer goods of a particular kind will or

may cause injury to any person as a result of

services of that kind being supplied; or

(ii) a reasonably foreseeable use (including a

misuse) of consumer goods of a particular

kind, to which such services relate, will or

may cause injury to any person as a result of

such services being supplied;

(b) a warning of possible risks involved in the supply of

product related services of a kind specified in the

notice.

130. Announcement of the results of an investigation etc.

(1) If:

(a) an investigation of consumer goods, or product

related services, specified in a notice under

section 129(1) or (2) has been completed; and

(b) none of the following have been published or issued

in relation to those goods or services:

(i) a proposed ban notice under section 132 of

the Competition and Consumer Act;

(ii) a proposed recall notice under section 132A

of that Act;

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(iii) a notice under section 132J(1) or (2) of that

Act;

the responsible Minister who issued the notice under

section 129(1) or (2) must, as soon as practicable after the

completion of the investigation, announce, by written

notice published on the internet, the results of the

investigation.

(2) The responsible Minister may announce in a notice

published under subsection (1) of this section:

(a) whether any action under this Part is proposed to be

taken in relation to the consumer goods or product

related services; and

(b) if it is proposed to take any such action — what

action is proposed to be taken.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 131

page 196 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 5 — Consumer goods, or product related services,

associated with death or serious injury or illness

131. Suppliers to report consumer goods associated with the death or

serious injury or illness of any person

(1) If:

(a) a person (the supplier), in trade or commerce,

supplies consumer goods; and

(b) the supplier becomes aware of the death or serious

injury or illness of any person and:

(i) considers that the death or serious injury or

illness was caused, or may have been

caused, by the use or foreseeable misuse of

the consumer goods; or

(ii) becomes aware that a person other than the

supplier considers that the death or serious

injury or illness was caused, or may have

been caused, by the use or foreseeable

misuse of the consumer goods;

the supplier must, within 2 days of becoming so aware,

give the Commonwealth Minister a written notice that

complies with subsection (5).

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

this subsection.

(2) Subsection (1) does not apply if:

(a) it is clear that the death or serious injury or illness

was not caused by the use or foreseeable misuse of

the consumer goods; or

(b) it is very unlikely that the death or serious injury or

illness was caused by the use or foreseeable misuse

of the consumer goods; or

(c) the supplier, or another person, is required to notify

the death or serious injury or illness in accordance

with a law of the Commonwealth, a State or a

Territory that is a law specified in the regulations; or

(d) the supplier, or another person, is required to notify

the death or serious injury or illness in accordance

with an industry code of practice that:

(i) applies to the supplier or other person; and

(ii) is specified in the regulations.

(3) Subsection (1) applies whether or not the consumer goods

were being used before or at the time the death or serious

injury or illness occurred.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 132

page 197 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) Without limiting subsection (1), the ways in which the

supplier may become aware as mentioned in

subsection (1)(b) include receiving the relevant information

from any of the following:

(a) a consumer;

(b) a person who re-supplies the consumer goods;

(c) a repairer or insurer of the goods;

(d) an industry organisation or consumer organisation.

(5) The notice must:

(a) identify the consumer goods; and

(b) include information about the following matters to

the extent that it is known by the supplier at the time

the notice is given:

(i) when, and in what quantities, the consumer

goods were manufactured in Australia,

supplied in Australia, imported into

Australia or exported from Australia;

(ii) the circumstances in which the death or

serious injury or illness occurred;

(iii) the nature of any serious injury or illness

suffered by any person;

(iv) any action that the supplier has taken, or is

intending to take, in relation to the consumer

goods.

(6) The giving of the notice under subsection (1) is not to be

taken for any purpose to be an admission by the supplier of

any liability in relation to:

(a) the consumer goods; or

(b) the death or serious injury or illness of any person.

132. Suppliers to report product related services associated with the

death or serious injury or illness of any person

(1) If:

(a) a person (the supplier), in trade or commerce,

supplies product related services; and

(b) the supplier becomes aware of the death or serious

injury or illness of any person and:

(i) considers that the death or serious injury or

illness was caused, or may have been

caused, by the use or foreseeable misuse of

the consumer goods to which the services

relate; or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 132

page 198 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) becomes aware that a person other than the

supplier considers that the death or serious

injury or illness was caused, or may have

been caused, by the use or foreseeable

misuse of the consumer goods to which the

services relate;

the supplier must, within 2 days of becoming so aware,

give the Commonwealth Minister a written notice that

complies with subsection (5).

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

this subsection.

(2) Subsection (1) does not apply if:

(a) it is clear that the death or serious injury or illness

was not caused by the use or foreseeable misuse of

the consumer goods to which the services relate; or

(b) it is very unlikely that the death or serious injury or

illness was caused by the use or foreseeable misuse

of the consumer goods to which the services relate;

or

(c) the supplier, or another person, is required to notify

the death or serious injury or illness in accordance

with a law of the Commonwealth, a State or a

Territory that is a law specified in the regulations; or

(d) the supplier, or another person, has notified the death

or serious injury or illness in accordance with an

industry code of practice that:

(i) applies to the supplier or other person; and

(ii) is specified in the regulations.

(3) Subsection (1) applies whether or not consumer goods to

which the product related services relate were being used

before or at the time the death or serious injury or illness

occurred.

(4) Without limiting subsection (1), the ways in which the

supplier may become aware as mentioned in

subsection (1)(b) include receiving the relevant information

from any of the following:

(a) a consumer;

(b) a person who re-supplies the product related

services;

(c) an insurer of the services;

(d) an industry organisation or consumer organisation.

(5) The notice must:

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 132A

page 199 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) identify the product related services and the

consumer goods to which the services relate; and

(b) include information about the following matters to

the extent that it is known by the supplier at the time

the notice is given:

(i) when the services have been supplied;

(ii) the circumstances in which the death or

serious injury or illness occurred;

(iii) the nature of any serious injury or illness

suffered by any person;

(iv) any action that the supplier has taken, or is

intending to take, in relation to the services.

(6) The giving of the notice under subsection (1) is not to be

taken for any purpose to be an admission by the supplier of

any liability in relation to:

(a) the product related services; or

(b) the consumer goods to which the services relate; or

(c) the death or serious injury or illness of any person.

132A. Confidentiality of notices given under this Division

(1) A person must not disclose to any other person a notice

given under this Division, or any part of or information

contained in such a notice, unless the person who gave the

notice has consented to the notice, or that part or

information, not being treated as confidential.

(2) This section does not apply if:

(a) the disclosure is made by the Commonwealth

Minister to:

(i) another responsible Minister; or

(ii) the regulator; or

(iii) an associate regulator; or

(b) the disclosure is made by the Commonwealth

Minister and the Commonwealth Minister considers

that the disclosure is in the public interest; or

(c) the disclosure is made by a member of the staff of

the regulator, or an associate regulator, in the

performance of his or her duties as such a member of

staff, and is made:

(i) to another member of the staff of the

regulator or associate regulator; or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 133

page 200 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) if the person making the disclosure is a

member of the staff of the regulator — to an

associate regulator; or

(iii) if the person making the disclosure is a

member of the staff of an associate

regulator—to the regulator or another

associate regulator; or

(d) the disclosure is required or authorised by or under

law; or

(e) the disclosure is reasonably necessary for the

enforcement of the criminal law or of a law

imposing a pecuniary penalty.

(3) This section also does not apply if the disclosure is made

by a member of the staff of the regulator, or an associate

regulator, in the performance of his or her duties as such a

member of staff, and is made because it is reasonably

necessary to protect public safety, to:

(a) any other agency within the meaning of the Freedom

of Information Act 1982; or

(b) the Director of Public Prosecutions; or

(c) a State/Territory government body (within the

meaning of section 155AAA of the Competition and

Consumer Act); or

(d) a foreign government body (within the meaning of

the Competition and Consumer Act).

Division 6 — Miscellaneous

133. Liability under a contract of insurance

If:

(a) a contract of insurance between an insurer and a

person relates to:

(i) the recall of consumer goods that are

supplied by the person, or which the person

proposes to supply; or

(ii) the liability of the person with respect to

possible defects in such consumer goods;

and

(b) the person gives information relating to any such

consumer goods to:

(i) a responsible Minister; or

(ii) the regulator; or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 134

page 201 [This compilation shows amendments proposed by Bill No. 19-2.]

(iii) a person appointed or engaged under the

Public Service Act 1999, or under a

corresponding law of a State or a Territory;

or

(iv) an officer of an authority of the

Commonwealth or of a State or Territory;

the liability of the insurer under the contract is not affected

only because the person gave the information.

Part 3-4Information standards

134. Making information standards for goods and services

(1) The Commonwealth Minister may, by written notice

published on the internet, make an information standard

for one or both of the following:

(a) goods of a particular kind;

(b) services of a particular kind.

(2) Without limiting subsection (1), an information standard

for goods or services of a particular kind may:

(a) make provision in relation to the content of

information about goods or services of that kind; or

(b) require the provision of specified information about

goods or services of that kind; or

(c) provide for the manner or form in which such

information is to be provided; or

(d) provide that such information is not to be provided

in a specified manner or form; or

(e) provide that information of a specified kind is not to

be provided about goods or services of that kind; or

(f) assign a meaning to specified information about

goods or services.

135. Declaring information standards for goods and services

(1) The Commonwealth Minister may, by written notice

published on the internet, declare that the following is an

information standard for goods or services of a kind

specified in the instrument:

(a) a particular standard, or a particular part of a

standard, prepared or approved by Standards

Australia or by an association prescribed by the

regulations;

(b) such a standard, or such a part of a standard, with

additions or variations specified in the notice.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 136

page 202 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) The Commonwealth Minister must not declare under

subsection (1) that a standard, or a part of a standard,

referred to in that subsection is an information standard for:

(a) goods of a particular kind; or

(b) services of a particular kind;

if that standard or part is inconsistent with an information

standard for those goods or services that is in force and was

made under section 134(1).

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

standards

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

a particular kind if:

(a) an information standard for goods of that kind is in

force; and

(b) the person has not complied with that standard.

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

this subsection.

(2) A person must not, in trade or commerce, offer for supply

goods the supply of which is prohibited by subsection (1).

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

this subsection.

(3) A person must not, in or for the purposes of trade or

commerce, manufacture, possess or have control of goods

the supply of which is prohibited by subsection (1).

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

this subsection.

(4) In a proceeding under Part 5-2 in relation to a

contravention of subsection (3), it is a defence if the

defendant proves that the defendant’s manufacture,

possession or control of the goods was not for the purpose

of supplying the goods.

(5) Subsections (1), (2) and (3) do not apply to goods that are

intended to be used outside Australia.

(6) Unless the contrary is established, it is presumed, for the

purposes of this section, that goods are intended to be used

outside Australia if either of the following is applied to the

goods:

(a) a statement that the goods are for export only;

(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.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 137

page 203 [This compilation shows amendments proposed by Bill No. 19-2.]

(7) Without limiting subsection (6), a statement may, for the

purposes of that subsection, be applied to goods by being:

(a) woven in, impressed on, worked into or annexed or

affixed to the goods; or

(b) applied to a covering, label, reel or thing in or with

which the goods are supplied.

(8) If:

(a) a person (the supplier) supplies goods in

contravention of subsection (1), (2) or (3); and

(b) another person suffers loss or damage because,

contrary to the information standard, he or she was

not provided with particular information in relation

to the goods; and

(c) the other person would not have suffered the loss or

damage if the supplier had complied with the

information standard;

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

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

standards

(1) A person must not, in trade or commerce, supply services

of a particular kind if:

(a) an information standard for services of that kind is in

force; and

(b) the person has not complied with that standard.

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

this subsection.

(2) A person must not, in trade or commerce, offer for supply

services the supply of which is prohibited by

subsection (1).

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

this subsection.

(3) If:

(a) a person (the supplier) supplies services in

contravention of subsection (1) or (2); and

(b) another person suffers loss or damage because,

contrary to the information standard, he or she was

not provided with particular information in relation

to the services; and

(c) the other person would not have suffered the loss or

damage if the supplier had complied with the

information standard;

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 137A

page 204 [This compilation shows amendments proposed by Bill No. 19-2.]

the other person is taken, for the purposes of this Schedule,

to have suffered the loss or damage because of that supply.

137A. Safe harbour for complying with information standards about

free range eggs

(1) Neither section 18 nor paragraph 29(1)(a) or 151(1)(a)

applies to a person in relation to the labelling or displaying

of eggs as free range eggs if, when doing so, the person is

complying with all requirements:

(a) specified in an information standard for eggs; and

(b) relating to the labelling or displaying of free range

eggs, including requirements about:

(i) the use of the words “free range”; or

(ii) representing that eggs are free range eggs.

(2) If:

(a) proceedings are brought against a person in respect

of section 18 or paragraph 29(1)(a) or 151(1)(a); and

(b) the person seeks to rely on subsection (1) of this

section in the proceedings;

the person bears an evidential burden in relation to the

matters set out in that subsection.

(3) An egg is an egg laid by a female domestic chicken (Gallus

gallus domesticus).

(4) Free range egg has the meaning given by the information

standard mentioned in paragraph (1)(a).

Part 3-5 — Liability of manufacturers for goods with

safety defects

Division 1 — Actions against manufacturers for goods with

safety defects

138. Liability for loss or damage suffered by an injured individual

(1) A manufacturer of goods is liable to compensate an

individual if:

(a) the manufacturer supplies the goods in trade or

commerce; and

(b) the goods have a safety defect; and

(c) the individual suffers injuries because of the safety

defect.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 139

page 205 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) The individual may recover, by action against the

manufacturer, the amount of the loss or damage suffered by

the individual.

(3) If the individual dies because of the injuries, a law of a

State or a Territory about liability in respect of the death of

individuals applies as if:

(a) the action were an action under the law of the State

or Territory for damages in respect of the injuries;

and

(b) the safety defect were the manufacturer’s wrongful

act, neglect or default.

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

injured individual

(1) A manufacturer of goods is liable to compensate a person

if:

(a) the manufacturer supplies the goods in trade or

commerce; and

(b) the goods have a safety defect; and

(c) an individual (other than the person) suffers injuries

because of the safety defect; and

(d) the person suffers loss or damage because of:

(i) the injuries; or

(ii) if the individual dies because of the

injuries — the individual’s death; and

(e) the loss or damage does not come about because of a

business or professional relationship between the

person and the individual.

(2) The person may recover, by action against the

manufacturer, the amount of the loss or damage suffered by

the person.

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

are destroyed or damaged

(1) A manufacturer of goods is liable to compensate a person

if:

(a) the manufacturer supplies the goods in trade or

commerce; and

(b) the goods have a safety defect; and

(c) other goods of a kind ordinarily acquired for

personal, domestic or household use or consumption

are destroyed or damaged because of the safety

defect; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 141

page 206 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) the person used or consumed, or intended to use or

consume, the destroyed or damaged goods for

personal, domestic or household use or consumption;

and

(e) the person suffers loss or damage as a result of the

destruction or damage.

(2) The person may recover, by action against the

manufacturer, the amount of the loss or damage suffered by

the person.

141. Liability for loss or damage suffered by a person if land, buildings

or fixtures are destroyed or damaged

(1) A manufacturer of goods is liable to compensate a person

if:

(a) the manufacturer supplies the goods in trade or

commerce; and

(b) the goods have a safety defect; and

(c) land, buildings or fixtures are destroyed or damaged

because of the safety defect; and

(d) the land, buildings or fixtures are ordinarily acquired

for private use; and

(e) the person used, or intended to use, the land,

buildings or fixtures for private use; and

(f) the person suffers loss or damage as a result of the

destruction or damage.

(2) The person may recover, by action against the

manufacturer, the amount of the loss or damage suffered by

the person.

142. Defences to defective goods actions

In a defective goods action, it is a defence if it is

established that:

(a) the safety defect in the goods that is alleged to have

caused the loss or damage did not exist:

(i) in the case of electricity — at the time at

which the electricity was generated, being a

time before it was transmitted or distributed;

or

(ii) in any other case — at the time when the

goods were supplied by their actual

manufacturer; or

(b) the goods had that safety defect only because there

was compliance with a mandatory standard for them;

or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Specific protections Chapter 3

s. 143

page 207 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) the state of scientific or technical knowledge at the

time when the goods were supplied by their

manufacturer was not such as to enable that safety

defect to be discovered; or

(d) if the goods that had that safety defect were

comprised in other goods — that safety defect is

attributable only to:

(i) the design of the other goods; or

(ii) the markings on or accompanying the other

goods; or

(iii) the instructions or warnings given by the

manufacturer of the other goods.

Division 2 — Defective goods actions

143. Time for commencing defective goods actions

(1) Subject to subsection (2), a person may commence a

defective goods action at any time within 3 years after the

time the person became aware, or ought reasonably to have

become aware, of all of the following:

(a) the alleged loss or damage;

(b) the safety defect of the goods;

(c) the identity of the person who manufactured the

goods.

(2) A defective goods action must be commenced within

10 years of the supply by the manufacturer of the goods to

which the action relates.

144. Liability joint and several

If 2 or more persons are liable under Division 1 for the

same loss or damage, they are jointly and severally liable.

145. Survival of actions

A law of a State or a Territory about the survival of causes

of action vested in persons who die applies to actions under

Division 1.

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

applies

Division 1 does not apply to a loss or damage in respect of

which an amount has been, or could be, recovered under a

law of the Commonwealth, a State or a Territory that:

(a) relates to workers’ compensation; or

(b) gives effect to an international agreement.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 3 Specific protections

s. 147

page 208 [This compilation shows amendments proposed by Bill No. 19-2.]

147. Unidentified manufacturer

(1) A person who:

(a) wishes to institute a defective goods action; but

(b) does not know who is the manufacturer of the goods

to which the action would relate;

may, by written notice given to a supplier, or each supplier,

of the goods who is known to the person, request the

supplier or suppliers to give the person particulars

identifying the manufacturer of the goods, or the supplier

of the goods to the supplier requested.

(2) If, 30 days after the person made the request or requests,

the person still does not know who is the manufacturer of

the goods, then each supplier:

(a) to whom the request was made; and

(b) who did not comply with the request;

is taken, for the purposes of the defective goods liability

action (but not for the purposes of section 142(c)), to be the

manufacturer of the goods.

148. Commonwealth liability for goods that are defective only because

of compliance with Commonwealth mandatory standard

(1) If a person (however described) against whom a defective

goods action is brought raises the defence that the goods

had the alleged safety defect only because there was

compliance with a Commonwealth mandatory standard for

the goods, the person must, as soon as practicable after

raising that defence, give the Commonwealth:

(a) a prescribed notice of the action and of that defence;

and

(b) a copy of the person’s defence in the action.

(2) The giving of the notice and defence makes the

Commonwealth a defendant in the action.

(3) If, in the action, the court finds that the person (the

plaintiff) by whom the action is brought would, but for the

defence referred to in subsection (1), have succeeded

against the person (other than the Commonwealth) against

which the action is brought, then:

(a) the Commonwealth, and not the person (other than

the Commonwealth) against which the action is

brought, is liable to pay the plaintiff for the amount

of the loss or damage caused by the safety defect;

and

(b) the court is to enter judgment against the

Commonwealth for that amount; and

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 149

page 209 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) the court may make such orders for costs as the court

considers just.

149. Representative actions by the regulator

(1) The regulator may, by application, commence a defective

goods action on behalf of one or more persons identified in

the application who have suffered the loss or damage in

relation to which the action is commenced.

(2) The regulator may only make the application if it has

obtained the written consent of the person, or each of the

persons, on whose behalf the application is being made.

Division 3 — Miscellaneous

150. Application of all or any provisions of this Part etc. 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) that purports to exclude, restrict or modify,

or has the effect of excluding, restricting or modifying, any

of the following is void:

(a) the application of all or any of the provisions of this

Part;

(b) the exercise of a right conferred by any of those

provisions;

(c) any liability under any of those provisions.

(2) A term of a contract is not taken to exclude, restrict or

modify the application of a provision of this Part unless the

term does so expressly or is inconsistent with that

provision.

Chapter 4 — Offences

Part 4-1 — Offences relating to unfair practices

Division 1False or misleading representations etc.

151. False or misleading representations about goods or services

(1) A person commits an offence if the person, in trade or

commerce, in connection with the supply or possible

supply of goods or services or in connection with the

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

services:

(a) makes a false or misleading representation that

goods are of a particular standard, quality, value,

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 151

page 210 [This compilation shows amendments proposed by Bill No. 19-2.]

grade, composition, style or model or have had a

particular history or particular previous use; or

(b) makes a false or misleading representation that

services are of a particular standard, quality, value or

grade; or

(c) makes a false or misleading representation that

goods are new; or

(d) makes a false or misleading representation that a

particular person has agreed to acquire goods or

services; or

(e) makes a false or misleading representation that

purports to be a testimonial by any person relating to

goods or services; or

(f) makes a false or misleading representation

concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a

testimonial;

relating to goods or services; or

(g) makes a false or misleading representation that

goods or services have sponsorship, approval,

performance characteristics, accessories, uses or

benefits; or

(h) makes a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

(i) makes a false or misleading representation with

respect to the price of goods or services; or

(j) makes a false or misleading representation

concerning the availability of facilities for the repair

of goods or of spare parts for goods; or

(k) makes a false or misleading representation

concerning the place of origin of goods; or

(l) makes a false or misleading representation

concerning the need for any goods or services; or

(m) makes a false or misleading representation

concerning the existence, exclusion or effect of any

condition, warranty, guarantee, right or remedy

(including a guarantee under Division 1 of Part 3-2);

or

(n) makes a false or misleading representation

concerning a requirement to pay for a contractual

right that:

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 152

page 211 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) is wholly or partly equivalent to any

condition, warranty, guarantee, right or

remedy (including a guarantee under

Division 1 of Part 3-2); and

(ii) a person has under a law of the

Commonwealth, a State or a Territory (other

than an unwritten law).

Note: For rules relating to representations as to the country of

origin of goods, see Part 5-3.

(2) For the purposes of applying subsection (1) in relation to a

proceeding concerning a representation of a kind referred

to in subsection (1)(e) or (f), the representation is taken to

be misleading unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to

the contrary is adduced, the representation is not

misleading; or

(b) have the effect of placing on any person an onus of

proving that the representation is not misleading.

(4) Subsection (1) is an offence of strict liability.

Penalty

(5) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(6) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

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

(1) A person commits an offence if the person, in trade or

commerce, in connection with the sale or grant, or the

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 152

page 212 [This compilation shows amendments proposed by Bill No. 19-2.]

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

connection with the promotion by any means of the sale or

grant of an interest in land:

(a) makes a false or misleading representation that the

person making the representation has a sponsorship,

approval or affiliation; or

(b) makes a false or misleading representation

concerning the nature of the interest in the land; or

(c) makes a false or misleading representation

concerning the price payable for the land; or

(d) makes a false or misleading representation

concerning the location of the land; or

(e) makes a false or misleading representation

concerning the characteristics of the land; or

(f) makes a false or misleading representation

concerning the use to which the land is capable of

being put or may lawfully be put; or

(g) makes a false or misleading representation

concerning the existence or availability of facilities

associated with the land.

(2) Subsection (1) is an offence of strict liability.

Penalty

(2A) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(2B) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

Other

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 153

page 213 [This compilation shows amendments proposed by Bill No. 19-2.]

(3) This section does not affect the application of any other

provision of this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

153. Misleading conduct relating to employment

(1) A person commits an offence if the person, in relation to

employment that is to be, or may be, offered by the person

or by another person, engages in conduct that is liable to

mislead persons seeking the employment as to:

(a) the availability, nature, terms or conditions of the

employment; or

(b) any other matter relating to the employment.

(2) Subsection (1) is an offence of strict liability.

Penalty

(3) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(4) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

154. Offering rebates, gifts, prizes etc.

(1) A person commits an offence if:

(a) the person, in trade or commerce, offers any rebate,

gift, prize or other free item; and

(b) the offer is connected with:

(i) the supply or possible supply of goods or

services; or

(ii) the promotion by any means of the supply or

use of goods or services; or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 154

page 214 [This compilation shows amendments proposed by Bill No. 19-2.]

(iii) the sale or grant, or the possible sale or

grant, of an interest in land; or

(iv) the promotion by any means of the sale or

grant of an interest in land; and

(c) the offer is made with the intention of not providing

the rebate, gift, prize or other free item, or of not

providing it as offered.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers any rebate,

gift, prize or other free item; and

(b) the offer is connected with:

(i) the supply or possible supply of goods or

services; or

(ii) the promotion by any means of the supply or

use of goods or services; or

(iii) the sale or grant, or the possible sale or

grant, of an interest in land; or

(iv) the promotion by any means of the sale or

grant of an interest in land; and

(c) the person fails to provide the rebate, gift, prize or

other free item, in accordance with the offer, within

the time specified in the offer or (if no such time is

specified) within a reasonable time after making the

offer.

(3) Subsection (2) does not apply if:

(a) the person’s failure to provide the rebate, gift, prize

or other free item in accordance with the offer was

due to the act or omission of another person, or to

some other cause beyond the person’s control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(4) Subsection (2) does not apply to an offer that the person

makes to another person if:

(a) the person offers to the other person a different

rebate, gift, prize or other free item as a replacement;

and

(b) the other person agrees to receive the different

rebate, gift, prize or other free item.

(5) Strict liability applies to subsections (1)(b) and (2)(b).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 155

page 215 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty

(5A) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5B) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Other

(6) This section does not affect the application of any other

provision of this Part in relation to the supply or

acquisition, or the possible supply or acquisition, of

interests in land.

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

(1) A person commits an offence if the person, in trade or

commerce, engages in conduct that is liable to mislead the

public as to the nature, the manufacturing process, the

characteristics, the suitability for their purpose or the

quantity of any goods.

(2) Subsection (1) is an offence of strict liability.

Penalty

(3) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 156

page 216 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(4) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

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

(1) A person commits an offence if the person, in trade or

commerce, engages in conduct that is liable to mislead the

public as to the nature, the characteristics, the suitability

for their purpose or the quantity of any services.

(2) Subsection (1) is an offence of strict liability.

Penalty

(3) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(4) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

157. Bait advertising

(1) A person commits an offence if:

(a) the person, in trade or commerce, advertises goods

or services for supply at a specified price; and

(b) there are reasonable grounds for believing that the

person will not be able to offer for supply those

goods or services at that price for a period that is,

and in quantities that are, reasonable, having regard

to:

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Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 157

page 217 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) the nature of the market in which the person

carries on business; and

(ii) the nature of the advertisement.

(2) A person commits an offence if:

(a) the person, in trade or commerce, advertises goods

or services for supply at a specified price; and

(b) the person fails to offer such goods or services for

supply at that price for a period that is, and in

quantities that are, reasonable having regard to:

(i) the nature of the market in which the person

carries on business; and

(ii) the nature of the advertisement.

(3) Subsections (1) and (2) are offences of strict liability.

Penalty

(3A) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(3B) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Defence

(4) In a prosecution of a person (the defendant) under

subsection (2), for failing to offer goods or services to

another person (the customer), it is a defence if:

(a) the defendant proves that:

(i) he or she offered to supply, or to procure a

third person to supply, goods or services of

the kind advertised to the customer within a

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Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 158

page 218 [This compilation shows amendments proposed by Bill No. 19-2.]

reasonable time, in a reasonable quantity and

at the advertised price; or

(ii) he or she offered to supply immediately, or

to procure a third person to supply within a

reasonable time, equivalent goods or

services to the customer in a reasonable

quantity and at the price at which the

first-mentioned goods or services were

advertised; and

(b) in either case, if the offer was accepted by the

customer, the defendant proves that he or she has so

supplied, or procured a third person to supply, the

goods or services.

158. Wrongly accepting payment

(1) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment

or other consideration for goods or services; and

(b) at the time of the acceptance, the person intends not

to supply the goods or services.

(2) Strict liability applies to subsection (1)(a).

(3) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment

or other consideration for goods or services; and

(b) at the time of the acceptance, the person intends to

supply goods or services materially different from

the goods or services in respect of which the

payment or other consideration is accepted.

(4) Strict liability applies to subsection (3)(a).

(5) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment

or other consideration for goods or services; and

(b) at the time of the acceptance, the person was

reckless as to whether he or she would be able to

supply the goods or services:

(i) within the period specified by or on behalf

of the person at or before the time the

payment or other consideration was

accepted; or

(ii) if no period is specified at or before that time

— within a reasonable time.

(6) Strict liability applies to subsection (5)(a).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 158

page 219 [This compilation shows amendments proposed by Bill No. 19-2.]

(7) A person commits an offence if:

(a) the person, in trade or commerce, accepts payment

or other consideration for goods or services; and

(b) the person fails to supply all the goods or services:

(i) within the period specified by or on behalf

of the person at or before the time the

payment or other consideration was

accepted; or

(ii) if no period is specified at or before that time

— within a reasonable time.

(8) Subsection (7) does not apply if:

(a) the person’s failure to supply all the goods or

services within the period, or within a reasonable

time, was due to the act or omission of another

person, or to some other cause beyond the person’s

control; and

(b) the person took reasonable precautions and exercised

due diligence to avoid the failure.

(9) Subsection (7) does not apply if:

(a) the person offers to supply different goods or

services as a replacement to the person (the

customer) to whom the original supply was to be

made; and

(b) the customer agrees to receive the different goods or

services.

(10) Subsection (7) is an offence of strict liability.

Penalty

(10A) An offence against subsection (1), (3), (5) or (7) committed

by a body corporate is punishable on conviction by a fine

of not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 159

page 220 [This compilation shows amendments proposed by Bill No. 19-2.]

(10B) An offence against subsection (1), (3), (5) or (7) committed

by a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Other

(11) Subsections (1), (3), (5) and (7) apply whether or not the

payment or other consideration that the person accepted

represents the whole or a part of the payment or other

consideration for the supply of the goods or services.

159. Misleading representations about certain business activities

(1) A person commits an offence if:

(a) the person, in trade or commerce, makes a

representation; and

(b) the representation is false or misleading in a material

particular; and

(c) the representation concerns the profitability, risk or

any other material aspect of any business activity

that the person has represented as one that can be, or

can be to a considerable extent, carried on at or from

a person’s place of residence.

(2) A person commits an offence if:

(a) the person, in trade or commerce, makes a

representation; and

(b) the representation is false or misleading in a material

particular; and

(c) the representation concerns the profitability, risk or

any other material aspect of any business activity:

(i) that the person invites (whether by

advertisement or otherwise) other persons to

engage or participate in, or to offer or apply

to engage or participate in; and

(ii) that requires the performance of work by

other persons, or the investment of money

by other persons and the performance by

them of work associated with the

investment.

(3) Subsections (1) and (2) are offences of strict liability.

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 160

page 221 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

160. Application of provisions of this Division to information providers

(1) Sections 151, 152, 155, 156 and 159 do not apply to a

publication of matter by an information provider if:

(a) in any case — the information provider made the

publication in the course of carrying on a business of

providing information; or

(b) if the information provider is the Australian

Broadcasting Corporation, the Special Broadcasting

Service Corporation or the holder of a licence

granted under the Broadcasting Services Act 1992

the publication was by way of a radio or television

broadcast by the information provider.

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

advertisement.

(3) Subsection (1) does not apply to a publication of matter in

connection with the supply or possible supply of, or the

promotion by any means of the supply or use of, goods or

services (the publicised goods or services), if:

(a) the publicised goods or services were goods or

services of a kind supplied by the information

provider or, if the information provider is a body

corporate, by a body corporate that is related to the

information provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who supplies goods or services of the same

kind as the publicised goods or services; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

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Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 161

page 222 [This compilation shows amendments proposed by Bill No. 19-2.]

body corporate that is related to a body corporate

that supplies goods or services of the same kind as

the publicised goods or services.

(4) Subsection (1) does not apply to a publication of matter in

connection with the sale or grant, or possible sale or grant,

of, or the promotion by any means of the sale or grant of,

interests in land (the publicised interests in land), if:

(a) the publicised interests in land were interests of a

kind sold or granted by the information provider or,

if the information provider is a body corporate, by a

body corporate that is related to the information

provider; or

(b) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

person who sells or grants interests of the same kind

as the publicised interests in land; or

(c) the publication was made on behalf of, or pursuant

to a contract, arrangement or understanding with, a

body corporate that is related to a body corporate

that sells or grants interests of the same kind as the

publicised interests in land.

Division 2 — Unsolicited supplies

161. Unsolicited cards etc.

(1) A person commits an offence if:

(a) the person sends a credit card or a debit card, or an

article that may be used as a credit card and a debit

card, to another person; and

(b) either:

(i) the person had issued the card; or

(ii) the card was sent on behalf of the person

who had issued the card.

(2) Subsection (1) does not apply if the person sends the card

to the other person:

(a) pursuant to a written request by the person who will

be under a liability to the person who issued the card

or article in respect of the use of the card or article;

or

(b) in renewal or replacement of, or in substitution for:

(i) a card or article of the same kind previously

sent to the other person pursuant to a written

request by the person who was under a

liability, to the person who issued the card

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 162

page 223 [This compilation shows amendments proposed by Bill No. 19-2.]

previously so sent, in respect of the use of

that card; or

(ii) a card or article of the same kind previously

sent to the other person and used for a

purpose for which it was intended to be

used.

(3) A person commits an offence if the person takes any action

that enables another person who has a credit card to use the

card as a debit card.

(4) A person commits an offence if the person takes any action

that enables another person who has a debit card to use the

card as a credit card.

(5) Subsection (3) or (4) does not apply if the person takes the

action in accordance with the other person’s written

request.

(6) Subsections (1), (3) and (4) are offences of strict liability.

Penalty

(7) An offence against subsection (1), (3) or (4) committed by

a body corporate is punishable on conviction by a fine of

not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(8) An offence against subsection (1), (3) or (4) committed by

a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

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

(1) A person commits an offence if the person, in trade or

commerce, asserts a right to payment from another person

for unsolicited goods.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 163

page 224 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) A person commits an offence if the person, in trade or

commerce, asserts a right to payment from another person

for unsolicited services.

(3) A person commits an offence if the person, in trade or

commerce, sends to another person an invoice or other

document that:

(a) states the amount of a payment, or sets out the

charge, for unsolicited goods or unsolicited services;

and

(b) does not contain a warning statement that complies

with the requirements set out in the regulations made

for the purposes of section 40(3)(b).

(4) Subsection (1), (2) or (3) does not apply if the person

proves that he or she had reasonable cause to believe that

there was a right to the payment or charge.

(5) Subsections (1), (2) and (3) are offences of strict liability.

Penalty

(6) An offence against subsection (1), (2) or (3) committed by

a body corporate is punishable on conviction by a fine of

not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(7) An offence against subsection (1), (2) or (3) committed by

a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

163. Assertion of right to payment for unauthorised entries or

advertisements

(1) A person commits an offence if the person asserts a right to

payment from another person of a charge for placing, in a

publication, an entry or advertisement relating to:

(a) the other person; or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 163

page 225 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) the other person’s profession, business, trade or

occupation.

(2) A person commits an offence if the person sends to another

person an invoice or other document that:

(a) states the amount of a payment, or sets out the

charge, for placing, in a publication, an entry or

advertisement relating to:

(i) the other person; or

(ii) the other person’s profession, business, trade

or occupation; and

(b) does not contain a warning statement that complies

with the requirements set out in the regulations made

for the purposes of section 43(2)(b).

(3) Subsections (1) and (2) do not apply if the person proves

that he or she knew, or had reasonable cause to believe,

that the other person authorised the placing of the entry or

advertisement.

(4) Subsections (1) and (2) do not apply to an entry or

advertisement that is placed in a publication published by a

person who is:

(a) the publisher of a publication that has an audited

circulation of 10,000 copies or more per week, as

confirmed by the most recent audit of the publication

by a body specified in the regulations made for the

purposes of section 43(3)(a); or

(b) a body corporate related to such a publisher; or

(c) the Commonwealth, a State or a Territory, or an

authority of the Commonwealth, a State or a

Territory; or

(d) a person specified in regulations made for the

purposes of section 43(3)(d).

(5) Subsections (1) and (2) are offences of strict liability.

Penalty

(5A) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

Fair Trading Act 2010

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Chapter 4 Offences

s. 164

page 226 [This compilation shows amendments proposed by Bill No. 19-2.]

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5B) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Other

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

have authorised the placing of the entry or advertisement,

unless:

(a) a document authorising the placing of the entry or

advertisement has been signed by the person or by

another person authorised by him or her; and

(b) a copy of the document has been given to the person

before the right to payment of a charge for the

placing of the entry or advertisement is asserted; and

(c) the document specifies:

(i) the name and address of the person

publishing the entry or advertisement; and

(ii) particulars of the entry or advertisement; and

(iii) the amount of the charge for the placing of

the entry or advertisement, or the basis on

which the charge is, or is to be, calculated.

Division 3Pyramid schemes

164. Participation in pyramid schemes

(1) A person commits an offence if the person participates in a

pyramid scheme.

(2) A person commits an offence if the person induces another

person to participate in a pyramid scheme.

(3) Subsections (1) and (2) are offences of strict liability.

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 165

page 227 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Division 4Pricing

165. Multiple pricing

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies goods;

and

(b) the goods have more than one displayed price; and

(c) the supply takes place for a price that is not the

lower, or lowest, of the displayed prices.

Penalty:

(a) if the person is a body corporate — $5,000; or

(b) if the person is not a body corporate — $1,000.

(2) Subsection (1) is an offence of strict liability.

166. Single price to be specified in certain circumstances

(1) A person commits an offence if the person, in trade or

commerce, in connection with:

(a) the supply, or possible supply, to another person of

goods or services of a kind ordinarily acquired for

personal, domestic or household use or consumption;

or

(b) the promotion by any means of the supply to another

person, or of the use by another person, of goods or

services of a kind ordinarily acquired for personal,

domestic or household use or consumption;

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 166

page 228 [This compilation shows amendments proposed by Bill No. 19-2.]

makes a representation with respect to an amount that, if

paid, would constitute a part of the consideration for the

supply of the goods or services.

(2) A person is not required to include, in the single price for

goods, a charge that is payable in relation to sending the

goods from the supplier to the other person.

(3) Subsection (1) does not apply if the person also:

(a) specifies, in a prominent way and as a single figure,

the single price for the goods or services; and

(b) if, in relation to goods:

(i) the person does not include in the single

price a charge that is payable in relation to

sending the goods from the supplier to the

other person; and

(ii) the person knows, at the time of the

representation, the minimum amount of a

charge in relation to sending the goods from

the supplier to the other person that must be

paid by the other person;

specifies that minimum amount.

(4) Subsection (1) does not apply if the representation is made

exclusively to a body corporate.

(5) For the purposes of subsection (3)(a), the person is taken

not to have specified a single price for the goods or

services in a prominent way unless the single price is at

least as prominent as the most prominent of the parts of the

consideration for the supply.

(6) Subsection (5) does not apply in relation to services to be

supplied under a contract if:

(a) the contract provides for the supply of the services

for the term of the contract; and

(b) the contract provides for periodic payments for the

services to be made during the term of the contract;

and

(c) if the contract also provides for the supply of goods

— the goods are directly related to the supply of the

services.

(7) Subsection (1) is an offence of strict liability.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 167

page 229 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty

(8) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(9) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

Division 5Other unfair practices

167. Referral selling

(1) A person commits an offence if:

(a) the person, in trade or commerce, induces 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:

(i) giving the person the names of prospective

customers; or

(ii) otherwise assisting the person to supply

goods or services to other consumers; and

(b) the receipt of the rebate, commission or other benefit

is contingent on an event occurring after that

contract is made.

(2) Subsection (1) is an offence of strict liability.

Penalty

(3) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 168

page 230 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(4) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

168. Harassment and coercion

(1) A person commits an offence if:

(a) the person uses physical force, or undue harassment

or coercion; and

(b) the physical force, or undue harassment or coercion

is used in connection with:

(i) the supply or possible supply of goods or

services; or

(ii) the payment for goods or services; or

(iii) the sale or grant, or the possible sale or

grant, of an interest in land; or

(iv) the payment for an interest in land.

(2) Subsection (1) is an offence of strict liability.

Penalty

(2A) An offence against subsection (1) committed by a body

corporate is punishable on conviction by a fine of not more

than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 168

page 231 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(2B) An offence against subsection (1) committed by a person

other than a body corporate is punishable on conviction by

a fine of not more than $500,000.

Other

(3) Subsections (1)(b)(iii) and (iv) do not affect the application

of any other provision of this Part in relation to the supply

or acquisition, or the possible supply or acquisition, of

interests in land.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 169

page 232 [This compilation shows amendments proposed by Bill No. 19-2.]

Part 4-2 — Offences relating to consumer transactions

Division 1Consumer guarantees

169. Display notices

(1) A person commits an offence if:

(a) the person makes a supply to a consumer to which:

(i) guarantees apply under Division 1 of

Part 3-2; and

(ii) a determination under subsection 66(1)

applies; and

(b) a notice that meets the requirements of the

determination is not, in accordance with the

determination:

(i) if the consumer takes delivery of the goods

or services at the supplier’s premises —

displayed at those premises; or

(ii) otherwise — drawn to the consumer’s

attention before the consumer agrees to the

supply of the goods.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

Division 2 — Unsolicited consumer agreements

Subdivision A — Negotiating unsolicited consumer agreements

170. Permitted hours for negotiating an unsolicited consumer

agreement

(1) A dealer commits an offence if the dealer calls on a person

for the purpose of negotiating an unsolicited consumer

agreement, or for an incidental or related purpose:

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

(b) before 9 am on any other day; or

(c) after 6 pm on any other day (or after 5 pm if the

other day is a Saturday).

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 171

page 233 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) Subsection (1) does not apply if the dealer calls on, or

telephones, the person in accordance with consent that:

(a) was given by the person to the dealer or a person

acting on the dealer’s behalf; and

(b) was not given in the presence of the dealer or a

person acting on the dealer’s behalf.

(3) Subsection (1) is an offence of strict liability.

171. Disclosing purpose and identity

(1) A dealer commits an offence if the dealer:

(a) calls on a person for the purpose of negotiating an

unsolicited consumer agreement, or for an incidental

or related purpose; and

(b) does not as soon as practicable and in any event

before starting to negotiate:

(i) clearly advise the person that the dealer’s

purpose is to seek the person’s agreement to

a supply of the goods or services concerned;

and

(ii) clearly advise the person that the dealer is

obliged to leave the premises immediately

on request; and

(iii) provide to the person such information

relating to the dealer’s identity as is

prescribed by the regulations made for the

purposes of section 74(c).

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

172. Ceasing to negotiate on request

(1) A dealer commits an offence if the dealer:

(a) calls on a person at any premises for the purpose of

negotiating an unsolicited consumer agreement, or

for an incidental or related purpose; and

(b) does not leave the premises immediately on the

request of:

(i) the occupier of the premises, or any person

acting with the actual or apparent authority

of the occupier; or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 173

page 234 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) the person (the prospective consumer) with

whom the negotiations are being conducted.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) A dealer commits an offence if:

(a) the prospective consumer has made the request

referred to in subsection (1)(b); and

(b) the dealer contacts the prospective consumer for the

purpose of negotiating an unsolicited consumer

agreement (or for an incidental or related purpose)

within 30 days after the prospective consumer made

the request.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(3) If the dealer is not, or is not to be, the supplier of the goods

or services to which the negotiations relate, subsection (2)

applies to that supplier, and any person acting on behalf of

the supplier, in the same way that it applies to the dealer.

(4) Subsection (2) does not apply to the dealer contacting the

prospective consumer if:

(a) the dealer is not, or is not to be, the supplier of the

goods or services to which the negotiations relate;

and

(b) the contact relates to a supply by another supplier.

(5) Subsections (1) and (2) are offences of strict liability.

173. Informing person of termination period etc.

(1) A dealer commits an offence if the dealer makes an

unsolicited consumer agreement with a person, and:

(a) before the agreement is made, the person is not

given information as to the following:

(i) the person’s right to terminate the agreement

during the termination period;

(ii) the way in which the person may exercise

that right;

(iii) such other matters as are prescribed by

regulations made for the purposes of

section 76(a)(iii); or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 174

page 235 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) if the agreement is made in the presence of both the

dealer and the person — the person is not given the

information in writing; or

(c) if the agreement is made by telephone — the person

is not:

(i) given the information by telephone; and

(ii) subsequently given the information in

writing; or

(d) the form in which, and the way in which, the person

is given the information does not comply with any

other requirements prescribed by regulations made

for the purposes of section 76(d).

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) If:

(a) a dealer contravenes subsection (1) in relation to an

unsolicited consumer agreement; and

(b) the dealer is not, or is not to be, the supplier of the

goods or services to which the agreement relates;

the supplier of the goods or services is also taken to have

contravened subsection (1) in relation to the agreement.

(3) Subsection (1) is an offence of strict liability.

Subdivision B — Requirements for unsolicited consumer agreements etc.

174. Requirement to give document to the consumer

(1) The dealer who negotiated an unsolicited consumer

agreement commits an offence if:

(a) the agreement was not negotiated by telephone; and

(b) the dealer does not give a copy of the agreement to

the consumer under the agreement immediately after

the consumer signs the agreement.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) The dealer who negotiated an unsolicited consumer

agreement commits an offence if:

(a) the agreement was negotiated by telephone; and

(b) the dealer does not, within 5 business days after the

agreement was made or such longer period agreed

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 175

page 236 [This compilation shows amendments proposed by Bill No. 19-2.]

by the parties, give to the consumer under the

agreement:

(i) personally; or

(ii) by post; or

(iii) with the consumer’s consent — by

electronic communication;

an agreement document evidencing the agreement.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(3) Subsections (1) and (2) are offences of strict liability.

175. Requirements for all unsolicited consumer agreements etc.

(1) The supplier under an unsolicited consumer agreement

commits an offence if the agreement, or (if the agreement

was negotiated by telephone) the agreement document,

does not comply with the following requirements:

(a) it must set out in full all the terms of the agreement,

including:

(i) the total consideration to be paid or provided

by the consumer under the agreement or, if

the total consideration is not ascertainable at

the time the agreement is made, the way in

which it is to be calculated; and

(ii) any postal or delivery charges to be paid by

the consumer;

(b) its front page must include a notice that:

(i) conspicuously and prominently informs the

consumer of the consumer’s right to

terminate the agreement; and

(ii) conspicuously and prominently sets out any

other information prescribed by regulations

made for the purposes of section 79(b)(ii);

and

(iii) complies with any other requirements

prescribed by regulations made for the

purposes of section 79(b)(iii);

(c) it must be accompanied by a notice that:

(i) may be used by the consumer to terminate

the agreement; and

(ii) complies with any requirements prescribed

by regulations made for the purposes of

section 79(c)(ii);

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 176

page 237 [This compilation shows amendments proposed by Bill No. 19-2.]

(d) it must conspicuously and prominently set out in

full:

(i) the supplier’s name; and

(ii) if the supplier has an ABN — the supplier’s

ABN; and

(iii) if the supplier does not have an ABN but has

an ACN — the supplier’s ACN; and

(iv) the supplier’s business address (not being a

post box) or, if the supplier does not have a

business address, the supplier’s residential

address; and

(v) if the supplier has an email address — the

supplier’s email address; and

(vi) if the supplier has a fax number — the

supplier’s fax number;

(e) it must be printed clearly or typewritten (apart from

any amendments to the printed or typewritten form,

which may be handwritten);

(f) it must be transparent.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

176. Additional requirements for unsolicited consumer agreements not

negotiated by telephone

(1) The supplier under an unsolicited consumer agreement that

was not negotiated by telephone commits an offence if the

agreement does not comply with the following

requirements:

(a) the agreement must be signed by the consumer under

the agreement;

(b) if the agreement is signed by a person on the

supplier’s behalf — the agreement must state that

the person is acting on the supplier’s behalf, and

must set out in full:

(i) the person’s name; and

(ii) the person’s business address (not being a

post box) or, if the person does not have a

business address, the person’s residential

address; and

(iii) if the person has an email address — the

person’s email address.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 177

page 238 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

(3) This section does not limit the operation of section 175.

177. Requirements for amendments of unsolicited consumer

agreements

(1) The supplier under an unsolicited consumer agreement

commits an offence if any amendments to the agreement

are not signed by both parties to the agreement.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

Subdivision C — Terminating unsolicited consumer agreements

178. Obligations of suppliers on termination

(1) The supplier under an unsolicited consumer agreement

commits an offence if:

(a) the agreement is terminated in accordance with

section 82; and

(b) the supplier does not, immediately upon being

notified of the termination, return or refund to the

consumer under the agreement any consideration (or

the value of any consideration) that the consumer

gave under the agreement or a related contract or

instrument.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

179. Prohibition on supplies etc.

(1) The supplier under an unsolicited consumer agreement

commits an offence if:

(a) the supplier:

(i) supplies to the consumer under the

agreement the goods or services to be

supplied under the agreement; or

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 180

page 239 [This compilation shows amendments proposed by Bill No. 19-2.]

(ii) accepts any payment, or any other

consideration, in connection with those

goods or services; or

(iii) requires any payment, or any other

consideration, in connection with those

goods or services; and

(b) the supply, acceptance or requirement occurs during:

(i) if the agreement was not negotiated by

telephone — the period starting on the day

on which the agreement was made and

ending at the end of the tenth business day

after the day on which the agreement was

made; or

(ii) if the agreement was negotiated by

telephone — the period starting on the

day on which the agreement was made

and ending at the end of the tenth business

day after the day on which the consumer was

given the agreement document relating to

the agreement.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Strict liability applies to subsection (1)(a).

180. Repayment of payments received after termination

(1) The supplier under an unsolicited consumer agreement

commits an offence if:

(a) the agreement is terminated in accordance with

section 82; and

(b) the supplier does not immediately refund to the

consumer under the agreement any payment:

(i) that the consumer, or a person acting on the

consumer’s behalf, makes to the supplier

after the termination; and

(ii) that purports to be made under the

agreement or a related contract or

instrument.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 181

page 240 [This compilation shows amendments proposed by Bill No. 19-2.]

181. Prohibition on recovering amounts after termination

(1) A person commits an offence if:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82; and

(b) the person:

(i) brings, or asserts an intention to bring, legal

proceedings against the consumer; or

(ii) takes, or asserts an intention to take, any

other action against the consumer;

in relation to an amount alleged to be payable, under

the agreement or a related contract or instrument, by

the consumer under the agreement.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) A person commits an offence if:

(a) an unsolicited consumer agreement is terminated in

accordance with section 82; and

(b) for the purpose of recovering an amount alleged to

be payable, under the agreement or a related contract

or instrument, by the consumer under the agreement,

the person:

(i) places the consumer’s name, or causes the

consumer’s name to be placed, on a list of

defaulters or debtors; or

(ii) asserts an intention to place the consumer’s

name, or to cause the consumer’s name to be

placed, on such a list.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(3) Subsection (1) is an offence of strict liability.

(4) Strict liability applies to subsection (2)(a).

Subdivision D — Miscellaneous

182. Certain provisions of unsolicited consumer agreements void

(1) The supplier under an unsolicited consumer agreement

commits an offence if the agreement includes, or purports

to include, a provision (however described) that is, or

would be, void because of section 89(1).

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 183

page 241 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) The supplier under an unsolicited consumer agreement

commits an offence if the supplier attempts to enforce or

rely on a provision (however described) that is void

because of section 89(1).

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(3) Subsections (1) and (2) are offences of strict liability.

183. Waiver of rights

(1) The supplier under an unsolicited consumer agreement

commits an offence if the supplier induces the consumer to

waive any right conferred by Division 2 of Part 3-2.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

184. Application of this Division to persons to whom rights of

consumers and suppliers are assigned etc.

(1) This Division applies in relation to a person to whom the

rights of a consumer (the original consumer) under a

contract for the supply of goods or services are assigned or

transferred, or pass by operation of law, (whether from the

original consumer or from another person) as if the person

were the original consumer.

(2) This Division applies in relation to a person to whom the

rights of a supplier (the original supplier) under a contract

for the supply of goods or services are assigned or

transferred, or pass by operation of law, (whether from the

original supplier or from another person) as if the person

were the original supplier.

185. Application of this Division to supplies to third parties

This Division applies in relation to a contract for the

supply of goods or services to a consumer (the original

consumer) on the order of another person as if the other

person were also the consumer.

186. Regulations may limit the application of this Division

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 187

page 242 [This compilation shows amendments proposed by Bill No. 19-2.]

This Division (other than section 170) does not apply, or

provisions of this Division (other than section 170) that are

specified in regulations made for the purposes of section 94

do not apply, to or in relation to:

(a) circumstances of a kind specified in those

regulations; or

(b) agreements of a kind specified in those regulations;

or

(c) the conduct of businesses of a kind specified in those

regulations.

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

Corporations Act

This Division does not apply in relation to conduct to

which section 736, 992A or 992AA of the Corporations

Act 2001 applies.

Note: Section 736 of the Corporations Act 2001 prohibits hawking

of securities. Section 992A of that Act prohibits hawking of

certain financial products. Section 992AA of that Act

prohibits hawking of interests in managed investment

schemes (which for the purposes of that Act include interests

in notified foreign passport funds).

Division 3 — Lay-by agreements

188. Lay-by agreements must be in writing etc.

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

commits an offence if:

(a) the agreement is not in writing; or

(b) a copy of the agreement is not given to the consumer

to whom the goods are, or are to be, supplied.

Penalty:

(a) if the person is a body corporate — $30,000; or

(b) if the person is not a body corporate — $6,000.

(2) Subsection (1) is an offence of strict liability.

189. Termination charges

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

commits an offence if the agreement requires the consumer

to pay a termination charge.

Penalty:

(a) if the person is a body corporate — $30,000; or

(b) if the person is not a body corporate — $6,000.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 190

page 243 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) Subsection (1) does not apply if the termination charge is

payable only if:

(a) the agreement is terminated by the consumer; and

(b) the supplier has not breached the agreement.

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

commits an offence if:

(a) the agreement provides that a termination charge is

payable; and

(b) the amount of the charge is more than the supplier’s

reasonable costs in relation to the agreement.

Penalty:

(a) if the person is a body corporate — $30,000; or

(b) if the person is not a body corporate — $6,000.

(4) Subsections (1) and (3) are offences of strict liability.

190. Termination of lay-by agreements by suppliers

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

commits an offence if the supplier terminates the

agreement.

Penalty:

(a) if the person is a body corporate — $30,000; or

(b) if the person is not a body corporate — $6,000.

(2) Subsection (1) does not apply if:

(a) the consumer who is a party to the agreement

breached a term of the agreement; or

(b) the supplier is no longer engaged in trade or

commerce; or

(c) the goods to which the agreement relates are no

longer available.

(3) Subsection (1) is an offence of strict liability.

191. Refund of amounts

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

commits an offence if:

(a) the agreement is terminated by a party to the

agreement; and

(b) the supplier fails to refund to the consumer all the

amounts paid by the consumer under the agreement

(other than any termination charge that is payable

under the agreement).

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 191A

page 244 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty:

(a) if the person is a body corporate — $30,000; or

(b) if the person is not a body corporate — $6,000.

(2) Subsection (1) is an offence of strict liability.

Division 3A—Gift cards

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

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies a gift card

to a consumer; and

(b) the day the gift card ceases to be redeemable is

earlier than 3 years after the day of that supply.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) is an offence of strict liability.

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

gift card

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies a gift card

to a consumer; and

(b) one of the following does not appear prominently on

the gift card:

(i) the date the gift card ceases to be

redeemable;

(ii) the month and year the gift card ceases to be

redeemable;

(iii) the date the gift card is supplied and a

statement that identifies the period during

which the gift card is redeemable;

(iv) the month and year the gift card is supplied

and a statement that identifies the period

during which the gift card is redeemable;

(v) the words “no expiry date” or words to that

effect.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) Subsection (1) is an offence of strict liability.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 191C

page 245 [This compilation shows amendments proposed by Bill No. 19-2.]

191C. Terms and conditions not to allow post-supply fees

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies a gift card

to a consumer; and

(b) the terms or conditions (however described) of the

gift card allow or require the payment of a

post-supply fee in relation to the gift card.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) An offence against subsection (1) is an offence of strict

liability.

191D. Post-supply fees not to be demanded or received

(1) A person commits an offence if the person, in trade or

commerce, demands or receives payment of a post-supply

fee in relation to a gift card.

Penalty:

(a) if the person is a body corporate—$30,000; or

(b) if the person is not a body corporate—$6,000.

(2) An offence against subsection (1) is an offence of strict

liability.

191E. Regulations may limit the application of this Division

The regulations may provide that some or all of the

provisions of this Division do not apply to or in relation to:

(a) gift cards of a kind prescribed by the regulations; or

(b) persons of a kind prescribed by the regulations; or

(c) gift cards supplied in circumstances prescribed by

the regulations.

Division 4 — Miscellaneous

192. Prescribed requirements for warranties against defects

(1) A person commits an offence if the person, in connection

with the supply, in trade or commerce, of goods or services

to a consumer:

(a) gives to the consumer a document that evidences a

warranty against defects and that does not comply

with the requirements prescribed for the purposes of

section 102(1); or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 193

page 246 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) represents directly to the consumer that the goods or

services are goods or services to which such a

warranty against defects relates.

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

193. Repairers must comply with prescribed requirements

(1) A person commits an offence if:

(a) the person accepts from another person goods that

the other person acquired as a consumer; and

(b) the goods are accepted for the purpose of repairing

them; and

(c) the person does not give to the other person a notice

that complies with the requirements prescribed for

the purposes of section 103(1).

Penalty:

(a) if the person is a body corporate — $50,000; or

(b) if the person is not a body corporate — $10,000.

(2) Subsection (1) is an offence of strict liability.

Part 4-3Offences relating to safety of consumer goods

and product related services

Division 1Safety standards

194. Supplying etc. consumer goods that do not comply with safety

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies consumer

goods of a particular kind; and

(b) a safety standard for consumer goods of that kind is

in force; and

(c) those goods do not comply with the standard.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

(other than for export) consumer goods of a

particular kind; and

(b) a safety standard for consumer goods of that kind is

in force; and

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 194

page 247 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) those goods do not comply with the standard.

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or

commerce, manufactures, possesses or has control of

consumer goods of a particular kind; and

(b) a safety standard for consumer goods of that kind is

in force; and

(c) those goods do not comply with the standard.

(4) Subsection (3) does not apply if the person does not

manufacture, possess or control the goods for the purpose

of supplying the goods (other than for export).

(5) A person commits an offence if:

(a) the person, in trade or commerce, exports consumer

goods of a particular kind; and

(b) a safety standard for consumer goods of that kind is

in force; and

(c) those goods do not comply with the standard.

(6) Subsection (5) does not apply if the Commonwealth

Minister has, by written notice given to the person,

approved the export of the goods under section 106(5).

(7) Subsections (1), (2), (3) and (5) are offences of strict

liability.

Penalty

(8) An offence against subsection (1), (2), (3) or (5) committed

by a body corporate is punishable on conviction by a fine

of not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 195

page 248 [This compilation shows amendments proposed by Bill No. 19-2.]

(9) An offence against subsection (1), (2), (3) or (5) committed

by a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

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

safety standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies product

related services of a particular kind; and

(b) a safety standard for services of that kind is in force;

and

(c) those services do not comply with the standard.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

product related services of a particular kind; and

(b) a safety standard for services of that kind is in force;

and

(c) those services do not comply with the standard.

(3) Subsections (1) and (2) are offences of strict liability.

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 196

page 249 [This compilation shows amendments proposed by Bill No. 19-2.]

196. Requirement to nominate a safety standard

(1) A person commits an offence if the person refuses or fails

to comply with a request given to the person under

section 108.

Penalty:

(a) if the person is a body corporate — $22,000; or

(b) if the person is not a body corporate — $4,400.

(2) Subsection (1) is an offence of strict liability.

Division 2Bans on consumer goods and product related services

197. Supplying etc. consumer goods covered by a ban

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies consumer

goods of a particular kind; and

(b) either:

(i) an interim ban on goods of that kind is in force

in the place where the supply occurs; or

(ii) a permanent ban on goods of that kind is in

force.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

(other than for export) consumer goods of a

particular kind; and

(b) the supply would be prohibited by subsection (1).

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or

commerce, manufactures, possesses or has control of

consumer goods of a particular kind; and

(b) supply of the goods would be prohibited by

subsection (1).

(4) Subsection (3) does not apply if the person does not

manufacture, possess or control the goods for the purpose

of supplying the goods (other than for export).

(5) A person commits an offence if:

(a) the person exports consumer goods of a particular

kind; and

(b) supply of the goods would be prohibited by

subsection (1).

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 198

page 250 [This compilation shows amendments proposed by Bill No. 19-2.]

(6) Subsection (5) does not apply if the Commonwealth

Minister has, by written notice given to the person,

approved the export of the goods under section 118(5).

(7) Subsections (1), (2), (3) and (5) are offences of strict

liability.

Penalty

(8) An offence against subsection (1), (2), (3) or (5) committed

by a body corporate is punishable on conviction by a fine

of not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(9) An offence against subsection (1), (2), (3) or (5) committed

by a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

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

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies product

related services of a particular kind; and

(b) either:

(i) an interim ban on services of that kind is in

force in the place where the supply occurs;

or

(ii) a permanent ban on services of that kind is

in force.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

product related services of a particular kind; and

(b) the supply would be prohibited by subsection (1).

(3) Subsections (1) and (2) are offences of strict liability.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 199

page 251 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Division 3 — Recall of consumer goods

199. Compliance with recall orders

(1) A person commits an offence if:

(a) a recall notice for consumer goods is in force; and

(b) the notice requires the person (other than the

regulator) to do one or more things; and

(c) the person refuses or fails to comply with the notice.

(2) A person commits an offence if:

(a) a recall notice for consumer goods is in force; and

(b) the person, in trade or commerce:

(i) if the notice identifies a defect in, or a

dangerous characteristic of, the consumer

goods — supplies consumer goods of the

kind to which the notice relates which

contain that defect or have that

characteristic; or

(ii) in any other case — supplies consumer

goods of the kind to which the notice relates.

(3) Subsections (1) and (2) are offences of strict liability.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 200

page 252 [This compilation shows amendments proposed by Bill No. 19-2.]

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

200. Notification by persons who supply consumer goods outside

Australia if there is compulsory recall

(1) A person commits an offence if:

(a) the person is required by section 125(4) to give a

copy of a notice to a responsible Minister; and

(b) the person refuses or fails to give the copy as

required by that section.

Penalty:

(a) if the person is a body corporate — $16,650; or

(b) if the person is not a body corporate — $3,330.

(2) Subsection (1) is an offence of strict liability.

201. Notification requirements for a voluntary recall of consumer

goods

(1) A person commits an offence if:

(a) the person is required by section 128(2) to give a

notice to the Commonwealth Minister; and

(b) the person refuses or fails to give the notice as

required by that section.

Penalty:

(a) if the person is a body corporate — $16,650; or

(b) if the person is not a body corporate — $3,330.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 202

page 253 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) A person commits an offence if:

(a) the person is required by section 128(6) to give a

copy of a notice to the Commonwealth Minister; and

(b) the person refuses or fails to give the copy as

required by that section.

Penalty:

(a) if the person is a body corporate — $16,650; or

(b) if the person is not a body corporate — $3,330.

(3) Subsections (1) and (2) are offences of strict liability.

Division 4Consumer goods, or product related services,

associated with death or serious injury or illness

202. Suppliers to report consumer goods etc. associated with the death

or serious injury or illness of any person

(1) A person commits an offence if:

(a) the person is required by section 131 or 132 to give a

notice to the Commonwealth Minister; and

(b) the person refuses or fails to give the notice as

required by that section.

Penalty:

(a) if the person is a body corporate — $16,650; or

(b) if the person is not a body corporate — $3,330.

(2) Subsection (1) is an offence of strict liability.

Part 4-4 — Offences relating to information standards

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

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies goods of

a particular kind; and

(b) an information standard for goods of that kind is in

force; and

(c) the person has not complied with the standard in

relation to the goods.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

goods of a particular kind; and

(b) an information standard for goods of that kind is in

force; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 203

page 254 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) the person has not complied with the standard in

relation to the goods.

(3) A person commits an offence if:

(a) the person, in or for the purposes of trade or

commerce, manufactures, possesses or has control of

goods of a particular kind; and

(b) an information standard for goods of that kind is in

force; and

(c) the person has not complied with the standard in

relation to the goods.

(4) Subsection (3) does not apply if the person does not

manufacture, possess or control the goods for the purpose

of supplying the goods.

(5) Subsection (1), (2) or (3) does not apply to goods that are

intended to be used outside Australia.

(6) Unless the contrary is established, it is presumed, for the

purposes of this section, that goods are intended to be used

outside Australia if either of the following is applied to the

goods:

(a) a statement that the goods are for export only;

(b) a statement indicating, by the use of words

authorised by regulations made for the purposes of

section 136(6)(b) to be used for the purposes of

section 136(6), that the goods are intended to be

used outside Australia.

(7) Without limiting subsection (6), a statement may, for the

purposes of that subsection, be applied to goods by being:

(a) woven in, impressed on, worked into or annexed or

affixed to the goods; or

(b) applied to a covering, label, reel or thing in or with

which the goods are supplied.

(8) Subsections (1), (2) and (3) are offences of strict liability.

Penalty

(9) An offence against subsection (1), (2) or (3) committed by

a body corporate is punishable on conviction by a fine of

not more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 204

page 255 [This compilation shows amendments proposed by Bill No. 19-2.]

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(10) An offence against subsection (1), (2) or (3) committed by

a person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

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

standards

(1) A person commits an offence if:

(a) the person, in trade or commerce, supplies services

of a particular kind; and

(b) an information standard for services of that kind is in

force; and

(c) the person has not complied with the standard in

relation to the services.

(2) A person commits an offence if:

(a) the person, in trade or commerce, offers for supply

services of a particular kind; and

(b) an information standard for services of that kind is in

force; and

(c) the person has not complied with the standard in

relation to the services.

(3) Subsections (1) and (2) are offences of strict liability.

Penalty

(4) An offence against subsection (1) or (2) committed by a

body corporate is punishable on conviction by a fine of not

more than the greater of the following:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

commission of the offence—3 times the value of that

benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 205

page 256 [This compilation shows amendments proposed by Bill No. 19-2.]

corporate during the 12-month period ending at the

end of the month in which the body corporate

committed, or began committing, the offence.

(5) An offence against subsection (1) or (2) committed by a

person other than a body corporate is punishable on

conviction by a fine of not more than $500,000.

Part 4-5 — Offences relating to substantiation notices

205. Compliance with substantiation notices

(1) A person commits an offence if the person:

(a) is given a substantiation notice; and

(b) refuses or fails to comply with it within the

substantiation notice compliance period for the

notice.

Penalty:

(a) if the person is a body corporate — $16,500; or

(b) if the person is not a body corporate — $3,300.

(2) Subsection (1) does not apply if:

(a) the person is an individual; and

(b) the person refuses or fails to give particular

information or produce a particular document in

compliance with a substantiation notice; and

(c) the information, or production of the document,

might tend to incriminate the individual or to expose

the individual to a penalty.

(3) Subsection (1) is an offence of strict liability.

206. False or misleading information etc.

(1) A person commits an offence if the person, in compliance

or purported compliance with a substantiation notice given

by the regulator:

(a) gives to the regulator false or misleading

information; or

(b) produces to the regulator documents that contain

false or misleading information.

Penalty:

(a) if the person is a body corporate — $27,500; or

(b) if the person is not a body corporate — $5,500.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Offences Chapter 4

s. 207

page 257 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) This section does not apply to:

(a) information that the person could not have known

was false or misleading; or

(b) the production to the regulator of a document

containing false or misleading information if the

document is accompanied by a statement of the

person that the information is false or misleading.

(3) Subsection (1) is an offence of strict liability.

Part 4-6 — Defences

207. Reasonable mistake of fact

(1) In a prosecution for a contravention of a provision of this

Chapter, it is a defence if the defendant proves that the

contravention was caused by a reasonable mistake of fact,

including a mistake of fact caused by reasonable reliance

on information supplied by another person.

(2) However, subsection (1) does not apply in relation to

information relied upon by the defendant that was supplied

to the defendant by another person who was, at the time

when the contravention occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director,

employee or agent of the defendant.

(3) If a defence provided by subsection (1) involves an

allegation that a contravention was due to reliance on

information supplied by another person, the defendant is

not entitled to rely on that defence unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice giving such information

as the defendant then had that would identify or

assist in identifying the other person.

208. Act or default of another person etc.

(1) In a prosecution for a contravention of a provision of this

Chapter, it is a defence if the defendant proves that:

(a) the contravention was due to the act or default of

another person, to an accident or to some other cause

beyond the defendant’s control; and

(b) the defendant took reasonable precautions and

exercised due diligence to avoid the contravention.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 209

page 258 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) However, subsection (1) does not apply in relation to the

act or default of another person who was, at the time when

the contravention occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director,

employee or agent of the defendant.

(3) If a defence provided by subsection (1) involves an

allegation that a contravention was due to the act or default

of another person, the defendant is not entitled to rely on

that defence unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice giving such information

as the defendant then had that would identify or

assist in identifying the other person.

209. Publication of advertisements in the ordinary course of business

In a prosecution for a contravention of a provision of this

Chapter that was committed by publication of an

advertisement, it is a defence if the defendant proves that:

(a) the defendant is a person whose business it is to

publish or arrange for the publication of

advertisements; and

(b) the defendant received the advertisement for

publication in the ordinary course of business; and

(c) the defendant did not know, and had no reason to

suspect, that its publication would amount to a

contravention of such a provision.

210. Supplying goods acquired for the purpose of re-supply

(1) In a prosecution for a contravention of a provision of this

Chapter that was committed by supplying goods in

contravention of section 194 or 203, it is a defence if the

defendant proves that:

(a) the goods were acquired by the defendant for the

purpose of re-supply; and

(b) the goods were so acquired from a person who

carried on in Australia a business of supplying such

goods otherwise than as the agent of a person outside

Australia; and

(c) in the case of a contravention of section 194 — the

defendant:

Fair Trading Act 2010

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Offences Chapter 4

s. 211

page 259 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) did not know, and could not with reasonable

diligence have ascertained, that the goods

did not comply with the safety standard to

which the contravention relates; or

(ii) relied in good faith on a representation by

the person from whom the defendant

acquired the goods that there was no safety

standard for such goods; and

(d) in the case of a contravention of section 203 — the

defendant:

(i) did not know, and could not with reasonable

diligence have ascertained, that the

defendant had not complied with the

information standard to which the

contravention relates; or

(ii) relied in good faith on a representation by

the person from whom the defendant

acquired the goods that there was no

information standard for such goods.

Note: Section 194 is about supply of consumer goods that do not

comply with safety standards, and section 203 is about

supply of goods that do not comply with information

standards.

(2) A defendant is not entitled to rely on the defence provided

by subsection (1) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice identifying the person

from whom the defendant acquired the goods.

211. Supplying services acquired for the purpose of re-supply

(1) In a prosecution for a contravention of a provision of this

Chapter that was committed by supplying services in

contravention of section 195 or 204, it is a defence if the

defendant proves that:

(a) the services were acquired by the defendant for the

purpose of re-supply; and

(b) the services were so acquired from a person who

carried on in Australia a business of supplying such

services otherwise than as the agent of a person

outside Australia; and

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 212

page 260 [This compilation shows amendments proposed by Bill No. 19-2.]

(c) in the case of a contravention of section 195 — the

defendant:

(i) did not know, and could not with reasonable

diligence have ascertained, that the services

did not comply with the safety standard to

which the contravention relates; or

(ii) relied in good faith on a representation by

the person from whom the defendant

acquired the services that there was no safety

standard for such services; and

(d) in the case of a contravention of section 204 — the

defendant:

(i) did not know, and could not with reasonable

diligence have ascertained, that the

defendant had not complied with the

information standard to which the

contravention relates; or

(ii) relied in good faith on a representation by

the person from whom the defendant

acquired the services that there was no

information standard for such services.

Note: Section 195 is about supply of product related services that

do not comply with safety standards, and section 204 is

about supply of services that do not comply with

information standards.

(2) A defendant is not entitled to rely on the defence provided

by subsection (1) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice identifying the person

from whom the defendant acquired the services.

Part 4-7 — Miscellaneous

212. Prosecutions to be commenced within 3 years

A prosecution for an offence against a provision of this

Chapter may be commenced at any time within 3 years

after the commission of the offence.

213. Preference must be given to compensation for victims

If a court considers that:

(a) it is appropriate to impose a fine on a person (the

defendant) under this Chapter in relation to:

Fair Trading Act 2010

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Offences Chapter 4

s. 214

page 261 [This compilation shows amendments proposed by Bill No. 19-2.]

(i) a contravention of a provision of this

Schedule; or

(ii) an attempt to contravene such a provision; or

(iii) aiding, abetting, counselling or procuring a

person to contravene such a provision; or

(iv) inducing, or attempting to induce, a person,

whether by threats or promises or otherwise,

to contravene such a provision; or

(v) being in any way, directly or indirectly,

knowingly concerned in, or party to, the

contravention by a person of such a

provision; or

(vi) conspiring with others to contravene such a

provision; and

(b) it is appropriate to order the defendant to pay

compensation to a person who has suffered loss or

damage as result of that contravention or conduct;

and

(c) the defendant does not have sufficient financial

resources to pay both the fine and the compensation;

the court must give preference to making an order for

compensation.

214. Penalties for contraventions of the same nature etc.

(1) If:

(a) a person is convicted of 2 or more offences

constituted by, or relating to, contraventions of the

same provision of this Chapter; and

(b) the contraventions appear to the court:

(i) to have been of the same nature or a

substantially similar nature; and

(ii) to have occurred at or about the same time;

the court must not, in respect of the offences, impose on

the person fines that, in the aggregate, exceed the

maximum fine that would be applicable in respect of one

offence by that person against that provision.

(2) This section applies whether or not the person is also

convicted of an offence or offences constituted by, or

relating to, another contravention or other contraventions

of that provision that were of a different nature or occurred

at a different time.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 4 Offences

s. 215

page 262 [This compilation shows amendments proposed by Bill No. 19-2.]

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

(1) If:

(a) a person is convicted of an offence constituted by, or

relating to, a contravention of a provision of this

Chapter; and

(b) a fine has, or fines have, previously been imposed on

the person by the court for an offence or offences

constituted by, or relating to, another contravention

or other contraventions of the same provision; and

(c) the contravention, or each of the contraventions,

mentioned in paragraph (b) appear to the court:

(i) to have been of the same nature as, or a

substantially similar nature to, the

contravention mentioned in paragraph (a);

and

(ii) to have occurred at or about the same time as

the contravention mentioned in

paragraph (a);

the court must not, in respect of the offence mentioned in

paragraph (a), impose on the person a fine that exceeds the

amount (if any) by which the maximum fine applicable in

respect of that offence is greater than the amount of the

fine, or the sum of the amounts of the fines, referred to in

paragraph (b).

(2) This section applies whether or not a fine has, or fines

have, also previously been imposed on the person for an

offence or offences constituted by, or relating to, a

contravention or contraventions of that provision that were

of a different nature or occurred at a different time.

216. Granting of injunctions etc.

In proceedings against a person for a contravention of a

provision of this Chapter, the court may:

(a) grant an injunction under Division 2 of Part 5-2

against the person in relation to:

(i) the conduct that constitutes, or is alleged to

constitute, the contravention; or

(ii) other conduct of that kind; or

(b) make an order under section 246, 247 or 248 in

relation to the contravention.

217. Criminal proceedings not to be brought for contraventions of

Chapter 2 or 3

Criminal proceedings do not lie against a person only

because the person:

Fair Trading Act 2010

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s. 218

page 263 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) has contravened a provision of Chapter 2 or 3; or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person

to contravene such a provision; or

(d) has induced, or attempted to induce, a person,

whether by threats or promises or otherwise, to

contravene such a provision; or

(e) has been in any way, directly or indirectly,

knowingly concerned in, or party to, the

contravention by a person of such a provision; or

(f) has conspired with others to contravene such a

provision.

Chapter 5 — Enforcement and remedies

Part 5-1Enforcement

Division 1Undertakings

218. Regulator may accept undertakings

(1) The regulator may accept a written undertaking given by a

person for the purposes of this section in connection with a

matter in relation to which the regulator has a power or

function under this Schedule.

(2) The person may, with the consent of the regulator,

withdraw or vary the undertaking at any time.

(3) If the regulator considers that the person who gave the

undertaking has breached any of its terms, the regulator

may apply to a court for an order under subsection (4).

(4) If the court is satisfied that the person has breached a term

of the undertaking, the court may make all or any of the

following orders:

(a) an order directing the person to comply with that

term of the undertaking;

(b) an order directing the person to pay to the

Commonwealth, or to a State or Territory, an

amount up to the amount of any financial benefit that

the person has obtained directly or indirectly and

that is reasonably attributable to the breach;

(c) any order that the court considers appropriate

directing the person to compensate any other person

who has suffered loss or damage as a result of the

breach;

(d) any other order that the court considers appropriate.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 5 Enforcement and remedies

s. 219

page 264 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 2Substantiation notices

219. Regulator may require claims to be substantiated etc.

(1) This section applies if a person has, in trade or commerce,

made a claim or representation promoting, or apparently

intended to promote:

(a) a supply, or possible supply, of goods or services by

the person or another person; or

(b) a sale or grant, or possible sale or grant, of an

interest in land by the person or another person; or

(c) employment that is to be, or may be, offered by the

person or another person.

(2) The regulator may give the person who made the claim or

representation a written notice that requires the person to

do one or more of the following:

(a) give information and/or produce documents to the

regulator that could be capable of substantiating or

supporting the claim or representation;

(b) if the claim or representation relates to a supply, or

possible supply, of goods or services by the person

or another person — give information and/or

produce documents to the regulator that could be

capable of substantiating:

(i) the quantities in which; and

(ii) the period for which;

the person or other person is or will be able to make

such a supply (whether or not the claim or

representation relates to those quantities or that

period);

(c) give information and/or produce documents to the

regulator that are of a kind specified in the notice;

within 21 days after the notice is given to the person who

made the claim or representation.

(3) Any kind of information or documents that the regulator

specifies under subsection (2)(c) must be a kind that the

regulator is satisfied is relevant to:

(a) substantiating or supporting the claim or

representation; or

(b) if the claim or representation relates to a supply, or

possible supply, of goods or services by the person

or another person — substantiating the quantities in

which, or the period for which, the person or other

person is or will be able to make such a supply.

Fair Trading Act 2010

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Enforcement and remedies Chapter 5

s. 220

page 265 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) The notice must:

(a) name the person to whom it is given; and

(b) specify the claim or representation to which it

relates; and

(c) explain the effect of sections 220, 221 and 222.

(5) The notice may relate to more than one claim or

representation that the person has made.

(6) This section does not apply to a person who made the

claim or representation if the person:

(a) is an information provider; and

(b) made the claim or representation by publishing it on

behalf of another person in the course of carrying on

a business of providing information; and

(c) does not have a commercial relationship with the

other person other than for the purpose of:

(i) publishing claims or representations

promoting, or apparently intended to

promote, the other person’s business or other

activities; or

(ii) the other person supplying goods or services,

or selling or granting interests in land to the

person.

220. Extending periods for complying with substantiation notices

(1) A person who has been given a substantiation notice may,

at any time within 21 days after the notice was given to the

person by the regulator, apply in writing to the regulator

for an extension of the period for complying with the

notice.

(2) The regulator may, by written notice given to the person,

extend the period within which the person must comply

with the notice.

221. Compliance with substantiation notices

(1) A person who is given a substantiation notice must comply

with it within the substantiation notice compliance period

for the notice.

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

this subsection.

(2) The substantiation notice compliance period for a

substantiation notice is:

(a) the period of 21 days specified in the notice; or

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 5 Enforcement and remedies

s. 222

page 266 [This compilation shows amendments proposed by Bill No. 19-2.]

(b) if the period for complying with the notice has been

extended under section 220 — the period as so

extended;

and includes (if an application has been made under

section 220(1) for an extension of the period for complying

with the notice) the period up until the time when the

applicant is given notice of the regulator’s decision on the

application.

(3) Despite subsection (1), an individual may refuse or fail to

give particular information or produce a particular

document in compliance with a substantiation notice on the

ground that the information or production of the document

might tend to incriminate the individual or to expose the

individual to a penalty.

222. False or misleading information etc.

(1) A person must not, in compliance or purported compliance

with a substantiation notice given by the regulator:

(a) give to the regulator false or misleading information;

or

(b) produce to the regulator documents that contain false

or misleading information.

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

this subsection.

(2) This section does not apply to:

(a) information that the person could not have known

was false or misleading; or

(b) the production to the regulator of a document

containing false or misleading information if the

document is accompanied by a statement of the

person that the information is false or misleading.

Division 3Public warning notices

223. Regulator may issue a public warning notice

(1) The regulator may issue to the public a written notice

containing a warning about the conduct of a person if:

(a) the regulator has reasonable grounds to suspect that

the conduct may constitute a contravention of a

provision of Chapter 2, 3 or 4; and

(b) the regulator is satisfied that one or more other

persons has suffered, or is likely to suffer, detriment

as a result of the conduct; and

(c) the regulator is satisfied that it is in the public

interest to issue the notice.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Enforcement and remedies Chapter 5

s. 224

page 267 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) Without limiting subsection (1), if:

(a) a person refuses to respond to a substantiation notice

given by the regulator to the person, or fails to

respond to the notice before the end of the

substantiation notice compliance period for the

notice; and

(b) the regulator is satisfied that it is in the public

interest to issue a notice under this subsection;

the regulator may issue to the public a written notice

containing a warning that the person has refused or failed

to respond to the substantiation notice within that period,

and specifying the matter to which the substantiation notice

related.

Part 5-2Remedies

Division 1Pecuniary penalties

224. Pecuniary penalties

(1) If a court is satisfied that a person:

(a) has contravened any of the following provisions:

(i) a provision of Part 2-2 (which is about

unconscionable conduct);

(ii) a provision of Part 3-1 (which is about unfair

practices);

(iii) section 66(2) (which is about display

notices);

(iv) a provision (other than section 85) of

Division 2 of Part 3-2 (which is about

unsolicited consumer agreements);

(v) a provision (other than section 96(2)) of

Division 3 of Part 3-2 (which is about lay-by

agreements);

(va) section 99B(1), 99C, 99D(1), 99E or 99F(2)

(which are about gift cards);

(vi) section 100(1) or (3) or 101(3) or (4) (which

are about proof of transactions and itemised

bills);

(vii) section 102(2) or 103(2) (which are about

prescribed requirements for warranties and

repairers);

(viii) section 106(1), (2), (3) or (5), 107(1)

or (2), 118(1), (2), (3) or (5), 119(1)

or (2), 125(4), 127(1) or (2), 128(2)

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 5 Enforcement and remedies

s. 224

page 268 [This compilation shows amendments proposed by Bill No. 19-2.]

or (6), 131(1) or 132(1) (which are about

safety of consumer goods and product

related services);

(ix) section 136(1), (2) or (3) or 137(1) or (2)

(which are about information standards);

(x) section 221(1) or 222(1) (which are about

substantiation notices); or

(b) has attempted to contravene such a provision; or

(c) has aided, abetted, counselled or procured a person

to contravene such a provision; or

(d) has induced, or attempted to induce, a person,

whether by threats or promises or otherwise, to

contravene such a provision; or

(e) has been in any way, directly or indirectly,

knowingly concerned in, or party to, the

contravention by a person of such a provision; or

(f) has conspired with others to contravene such a

provision;

the court may order the person to pay to the

Commonwealth, State or Territory, as the case may be,

such pecuniary penalty, in respect of each act or omission

by the person to which this section applies, as the court

determines to be appropriate.

(2) In determining the appropriate pecuniary penalty, the court

must have regard to all relevant matters including:

(a) the nature and extent of the act or omission and of

any loss or damage suffered as a result of the act or

omission; and

(b) the circumstances in which the act or omission took

place; and

(c) whether the person has previously been found by a

court in proceedings under Chapter 4 or this Part to

have engaged in any similar conduct.

(3) The pecuniary penalty payable under subsection (1) is not

to exceed the amount worked out using the following table:

Fair Trading Act 2010

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Enforcement and remedies Chapter 5

s. 224

page 269 [This compilation shows amendments proposed by Bill No. 19-2.]

Amount of pecuniary penalty

Item For each act or omission

to which this section

applies that relates to...

the pecuniary penalty is

not to exceed...

1 a provision of Part 2-2 (a) if the person is a

body corporate —

the greater of the

amounts mentioned

in subsection (3A);

or

(b) if the person is not a

body corporate —

$500,000.

2 a provision of Part 3-1

(other than section 47(1))

(a) if the person is a

body corporate —

the greater of the

amounts mentioned

in subsection (3A);

or

(b) if the person is not a

body corporate —

$500,000.

3 section 47(1) (a) if the person is a

body corporate —

$5,000; or

(b) if the person is not a

body corporate —

$1,000.

4 section 66(2) (a) if the person is a

body corporate —

$50,000; or

(b) if the person is not a

body corporate —

$10,000.

5 a provision of Division 2

of Part 3-2 (other than

section 85)

(a) if the person is a

body corporate —

$50,000; or

(b) if the person is not a

body corporate —

$10,000.

6 a provision of Division 3

of Part 3-2 (other than

section 96(2))

(a) if the person is a

body corporate —

$30,000; or

(b) if the person is not a

body corporate —

$6,000.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 5 Enforcement and remedies

s. 224

page 270 [This compilation shows amendments proposed by Bill No. 19-2.]

Amount of pecuniary penalty

Item For each act or omission

to which this section

applies that relates to...

the pecuniary penalty is

not to exceed...

6A section 99B(1), 99C,

99D(1), 99E or 99F(2)

(a) if the person is a body

corporate—$30,000;

or

(b) if the person is not a

body corporate—

$6,000.

7 section 100(1) or (3)

or 101(3) or (4)

(a) if the person is a

body corporate —

$15,000; or

(b) if the person is not a

body corporate —

$3,000.

8 section 102(2) or 103(2) (a) if the person is a

body corporate —

$50,000; or

(b) if the person is not a

body corporate —

$10,000.

9 section 106(1), (2), (3)

or (5), 107(1)

or (2), 118(1), (2), (3)

or (5) or 119(1) or (2)

(a) if the person is a

body corporate —

the greater of the

amounts mentioned

in subsection (3A);

or

(b) if the person is not a

body corporate —

$500,000.

10 section 125(4) (a) if the person is a

body corporate —

$16,500; or

(b) if the person is not a

body corporate —

$3,300.

11 section 127(1) or (2) (a) if the person is a

body corporate —

the greater of the

amounts mentioned

in subsection (3A);

or

(b) if the person is not a

body corporate —

$500,000.

Fair Trading Act 2010

Australian Consumer Law (WA) text Note

Enforcement and remedies Chapter 5

s. 224

page 271 [This compilation shows amendments proposed by Bill No. 19-2.]

Amount of pecuniary penalty

Item For each act or omission

to which this section

applies that relates to...

the pecuniary penalty is

not to exceed...

12 section 128(2)

or (6), 131(1) or 132(1)

(a) if the person is a

body corporate —

$16,500; or

(b) if the person is not a

body corporate —

$3,300.

13 section 136(1), (2) or (3)

or 137(1) or (2)

(a) if the person is a

body corporate —

the greater of the

amounts mentioned

in subsection (3A);

or

(b) if the person is not a

body corporate —

$500,000.

14 section 221(1) (a) if the person is a

body corporate —

$16,500; or

(b) if the person is not a

body corporate —

$3,300.

15 section 222(1) (a) if the person is a

body corporate —

$27,500; or

(b) if the person is not a

body corporate —

$5,500.

(3A) For the purposes of items 1, 2, 9, 11 and 13 of the table in

subsection (3), the amounts are as follows:

(a) $10,000,000;

(b) if the court can determine the value of the benefit

that the body corporate, and any body corporate

related to the body corporate, have obtained directly

or indirectly and that is reasonably attributable to the

act or omission—3 times the value of that benefit;

(c) if the court cannot determine the value of that

benefit—10% of the annual turnover of the body

corporate during the 12-month period ending at the

end of the month in which the act or omission

occurred or started to occur.

Fair Trading Act 2010

Note Australian Consumer Law (WA) text

Chapter 5 Enforcement and remedies

s. 225

page 272 [This compilation shows amendments proposed by Bill No. 19-2.]

(4) If conduct constitutes a contravention of 2 or more

provisions referred to in subsection (1)(a):

(a) a proceeding may be instituted under this Schedule

against a person in relation to the contravention of

any one or more of the provisions; but

(b) a person is not liable to more than one pecuniary

penalty under this section in respect of the same

conduct.

225. Pecuniary penalties and offences

(1) A court must not make an order under section 224 against a

person in relation to either of the following matters (a

consumer protection breach):

(a) a contravention of a provision referred to in

section 224(1)(a);

(b) conduct referred to in section 224(1)(b), (c), (d), (e)

or (f) that relates to a contravention of such a

provision;

if the person has been convicted of an offence constituted

by conduct that is substantially the same as the conduct

constituting the consumer protection breach.

(2) Proceedings for an order under section 224 against a

person in relation to a consumer protection breach are

stayed if:

(a) criminal proceedings are started or have already

been started against the person for an offence; and

(b) the offence is constituted by conduct that is

substantially the same as the conduct alleged to

constitute the consumer protection breach.

The proceedings for the order may be resumed if the

person is not convicted of the offence. Otherwise, the

proceedings are dismissed.

(3) Criminal proceedings may be started against a person for

conduct that is substantially the same as conduct

constituting a consumer protection breach regardless of

whether an order under section 224 has been made against

the person in respect of the breach.

(4) Evidence of information given, or evidence of the

production of documents, by an individual is not

admissible in criminal proceedings against the individual

if:

(a) the individual previously gave the evidence or

produced the documents in proceedings for an order

under section 224 against the individual in relation

Fair Trading Act 2010

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s. 226

page 273 [This compilation shows amendments proposed by Bill No. 19-2.]

to a consumer protection breach (whether or not the

order was made); and

(b) the conduct alleged to constitute the offence is

substantially the same as the conduct that was

claimed to constitute the consumer protection

breach.

However, this does not apply to a criminal proceeding in

respect of the falsity of the evidence given by the

individual in the proceedings for the order.

226. Defence

If, in proceedings under section 224 against a person other

than a body corporate, it appears to a court that the person

has, or may have:

(a) engaged in conduct in contravention of a provision

referred to in subsection (1)(a) of that section; or

(b) engaged in conduct referred to in subsection (1)(b),

(c), (d), (e) or (f) of that section that relates to a

contravention of such a provision;

but that the person acted honestly and reasonably and,

having regard to all the circumstances of the case, ought

fairly to be excused, the court may relieve the person either

wholly or partly from liability to a pecuniary penalty under

that section.

227. Preference must be given to compensation for victims

If a court considers that:

(a) it is appropriate to order a person (the defendant) to

pay a pecuniary penalty under section 224 in relation

to:

(i) a contravention of a provision referred to in

subsection (1)(a) of that section; or

(ii) conduct referred to in

subsection (1)(b), (c), (d), (e) or (f) of that

section that relates to a contravention such a

provision; and

(b) it is appropriate to order the defendant to pay

compensation to a person who has suffered loss or

damage as result of that contravention or conduct;

and

(c) the defendant does not have sufficient financial

resources to pay both the pecuniary penalty and the

compensation;

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the court must give preference to making an order for

compensation.

228. Civil action for recovery of pecuniary penalties

(1) The regulator may institute a proceeding in a court for the

recovery on behalf of the Commonwealth, a State or a

Territory, as the case may be, of a pecuniary penalty

referred to in section 224.

(2) A proceeding under subsection (1) may be commenced at

any time within 6 years after the contravention or conduct.

229. Indemnification of officers

(1) A body corporate (the first body), or a body corporate

related to the first body, commits an offence if it

indemnifies a person (whether by agreement or by making

a payment and whether directly or through an interposed

entity) against either of the following liabilities incurred as

an officer (within the meaning of the Corporations

Act 2001) of the first body:

(a) a liability to pay a pecuniary penalty under

section 224;

(b) legal costs incurred in defending or resisting

proceedings in which the person is found to have

such a liability.

Penalty: $2,750.

(2) For the purposes of subsection (1), the outcome of

proceedings is the outcome of the proceedings and any

appeal in relation to the proceedings.

230. Certain indemnities not authorised and certain documents void

(1) Section 229 does not authorise anything that would

otherwise be unlawful.

(2) Anything that purports to indemnify a person against a

liability is void to the extent that it contravenes

section 229.

Division 2Injunctions

232. Injunctions

(1) A court may grant an injunction, in such terms as the court

considers appropriate, if the court is satisfied that a person

has engaged, or is proposing to engage, in conduct that

constitutes or would constitute:

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(a) a contravention of a provision of Chapter 2, 3 or 4;

or

(b) attempting to contravene such a provision; or

(c) aiding, abetting, counselling or procuring a person to

contravene such a provision; or

(d) inducing, or attempting to induce, whether by

threats, promises or otherwise, a person to

contravene such a provision; or

(e) being in any way, directly or indirectly, knowingly

concerned in, or party to, the contravention by a

person of such a provision; or

(f) conspiring with others to contravene such a

provision.

(2) The court may grant the injunction on application by the

regulator or any other person.

(3) Subsection (1) applies in relation to conduct constituted by

applying or relying on, or purporting to apply or rely on, a

term of a contract that has been declared under section 250

to be an unfair term as if the conduct were a contravention

of a provision of Chapter 2.

(4) The power of the court to grant an injunction under

subsection (1) restraining a person from engaging in

conduct may be exercised:

(a) whether or not it appears to the court that the person

intends to engage again, or to continue to engage, in

conduct of a kind referred to in that subsection; and

(b) whether or not the person has previously engaged in

conduct of that kind; and

(c) whether or not there is an imminent danger of

substantial damage to any other person if the person

engages in conduct of that kind.

(5) Without limiting subsection (1), the court may grant an

injunction under that subsection restraining a person from

carrying on a business or supplying goods or services

(whether or not as part of, or incidental to, the carrying on

of another business):

(a) for a specified period; or

(b) except on specified terms and conditions.

(6) Without limiting subsection (1), the court may grant an

injunction under that subsection requiring a person to do

any of the following:

(a) refund money;

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(b) transfer property;

(c) honour a promise;

(d) destroy or dispose of goods.

(7) The power of the court to grant an injunction under

subsection (1) requiring a person to do an act or thing may

be exercised:

(a) whether or not it appears to the court that the person

intends to refuse or fail again, or to continue to

refuse or fail, to do that act or thing; and

(b) whether or not the person has previously refused or

failed to do that act or thing; and

(c) whether or not there is an imminent danger of

substantial damage to any other person if the person

refuses or fails to do that act or thing.

233. Consent injunctions

If an application is made under section 232, the court may,

if it considers that it is appropriate to do so, grant an

injunction under this section by consent of all the parties to

the proceedings, whether or not the court is satisfied as

required by section 232(1).

234. Interim injunctions

(1) If an application is made under section 232, the court may,

if it considers it is desirable to do so, grant an interim

injunction under this subsection pending the determination

of the application.

(2) If a responsible Minister or the regulator made the

application under section 232, the court must not require

the applicant or any other person to give any undertakings

as to damages as a condition of granting the interim

injunction.

(3) If:

(a) in a case to which subsection (2) does not apply the

court would, but for this subsection, require a person

to give an undertaking as to damages or costs; and

(b) a responsible Minister gives the undertaking;

the court must accept the undertaking by the responsible

Minister and must not require a further undertaking from

any other person.

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235. Variation and discharge of injunctions

A court may vary or discharge an injunction (including an

interim injunction) that it has granted under this Division.

Division 3Damages

236. Actions for damages

(1) If:

(a) a person (the claimant) suffers loss or damage

because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2

or 3;

the claimant may recover the amount of the loss or damage

by action against that other person, or against any person

involved in the contravention.

(2) An action under subsection (1) may be commenced at any

time within 6 years after the day on which the cause of

action that relates to the conduct accrued.

Division 4Compensation orders etc. for injured persons and

orders for non-party consumers

Subdivision A — Compensation orders etc. for injured persons

237. Compensation orders etc. on application by an injured person or

the regulator

(1) A court may:

(a) on application of a person (the injured person) who

has suffered, or is likely to suffer, loss or damage

because of the conduct of another person that:

(i) was engaged in a contravention of a

provision of Chapter 2, 3 or 4; or

(ii) constitutes applying or relying on, or

purporting to apply or rely on, a term of a

contract that has been declared under

section 250 to be an unfair term; or

(b) on the application of the regulator made on behalf of

one or more such injured persons;

make such order or orders as the court thinks appropriate

against the person who engaged in the conduct, or a person

involved in that conduct.

Note 1: For applications for an order or orders under this subsection,

see section 242.

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Note 2: The orders that the court may make include all or any of the

orders set out in section 243.

(2) The order must be an order that the court considers will:

(a) compensate the injured person, or any such injured

persons, in whole or in part for the loss or damage;

or

(b) prevent or reduce the loss or damage suffered, or

likely to be suffered, by the injured person or any

such injured persons.

(3) An application under subsection (1) may be made at any

time within 6 years after the day on which:

(a) if subsection (1)(a)(i) applies — the cause of action

that relates to the conduct referred to in that

subsection accrued; or

(b) if subsection (1)(a)(ii) applies — the declaration

referred to in that subsection is made.

238. Compensation orders etc. arising out of other proceedings

(1) If a court finds, in a proceeding instituted under a provision

of Chapter 4 or this Chapter (other than this section), that a

person (the injured person) who is a party to the

proceeding has suffered, or is likely to suffer, loss or

damage because of the conduct of another person that:

(a) was engaged in a contravention of a provision of

Chapter 2, 3 or 4; or

(b) constitutes applying or relying on, or purporting to

apply or rely on, a term of a contract that has been

declared under section 250 to be an unfair term;

the court may make such order or orders as it thinks

appropriate against the person who engaged in the conduct,

or a person involved in that conduct.

Note: The orders that the court may make include all or any of the

orders set out in section 243.

(2) The order must be an order that the court considers will:

(a) compensate the injured person in whole or in part for

the loss or damage; or

(b) prevent or reduce the loss or damage.

Subdivision B — Orders for non-party consumers

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

consumers

(1) If:

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(a) a person:

(i) engaged in conduct (the contravening

conduct) in contravention of a provision of

Chapter 2, Part 3-1, Division 2, 3 or 4 of

Part 3-2 or Chapter 4; or

(ii) is a party to a contract who is advantaged by

a term (the declared term) of the contract in

relation to which a court has made a

declaration under section 250; and

(b) the contravening conduct or declared term caused, or

is likely to cause, a class of persons to suffer loss or

damage; and

(c) the class includes persons who are non-party

consumers in relation to the contravening conduct or

declared term;

a court may, on the application of the regulator, make such

order or orders (other than an award of damages) as the

court thinks appropriate against a person referred to in

subsection (2) of this section.

Note 1: For applications for an order or orders under this subsection,

see section 242.

Note 2: The orders that the court may make include all or any of the

orders set out in section 243.

(2) An order under subsection (1) may be made against:

(a) if subsection (1)(a)(i) applies — the person who

engaged in the contravening conduct, or a person

involved in that conduct; or

(b) if subsection (1)(a)(ii) applies — a party to the

contract who is advantaged by the declared term.

(3) The order must be an order that the court considers will:

(a) redress, in whole or in part, the loss or damage

suffered by the non-party consumers in relation to

the contravening conduct or declared term; or

(b) prevent or reduce the loss or damage suffered, or

likely to be suffered, by the non-party consumers in

relation to the contravening conduct or declared

term.

(4) An application under subsection (1) may be made at any

time within 6 years after the day on which:

(a) if subsection (1)(a)(i) applies — the cause of action

that relates to the contravening conduct accrued; or

(b) if subsection (1)(a)(ii) applies — the declaration is

made.

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

consumers

(1) In determining whether to make an order under

section 239(1) against a person referred to in

section 239(2)(a), the court may have regard to the conduct

of the person, and of the non-party consumers in relation to

the contravening conduct, since the contravention occurred.

(2) In determining whether to make an order under

section 239(1) against a person referred to in

section 239(2)(b), the court may have regard to the conduct

of the person, and of the non-party consumers in relation to

the declared term, since the declaration was made.

(3) In determining whether to make an order under

section 239(1), the court need not make a finding about

either of the following matters:

(a) which persons are non-party consumers in relation to

the contravening conduct or declared term;

(b) the nature of the loss or damage suffered, or likely to

be suffered, by such persons.

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

(1) A non-party consumer is bound by an order made under

section 239(1) against a person if:

(a) the loss or damage suffered, or likely to be suffered,

by the non-party consumer in relation to the

contravening conduct, or the declared term, to which

the order relates has been redressed, prevented or

reduced in accordance with the order; and

(b) the non-party consumer has accepted the redress,

prevention or reduction.

(2) Any other order made under section 239(1) that relates to

that loss or damage has no effect in relation to the

non-party consumer.

(3) Despite any other provision of:

(a) this Schedule; or

(b) any other law of the Commonwealth, or a State or a

Territory;

no claim, action or demand may be made or taken against

the person by the non-party consumer in relation to that

loss or damage.

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Subdivision C — Miscellaneous

242. Applications for orders

(1) An application may be made under section 237(1)

or 239(1) even if an enforcement proceeding in relation to

the conduct, or the term of a contract, referred to in that

subsection has not been instituted.

(2) The regulator must not make an application under

section 237(1)(b) on behalf of one or more persons unless

those persons have consented in writing to the making of

the application.

243. Kinds of orders that may be made

Without limiting section 237(1), 238(1) or 239(1), the

orders that a court may make under any of those sections

against a person (the respondent) include all or any of the

following:

(a) an order declaring the whole or any part of a contract

made between the respondent and a person (the

injured person) who suffered, or is likely to suffer,

the loss or damage referred to in that section, or of a

collateral arrangement relating to such a contract:

(i) to be void; and

(ii) if the court thinks fit — to have been void ab

initio or void at all times on and after such

date as is specified in the order (which may

be a date that is before the date on which the

order is made);

(b) an order:

(i) varying such a contract or arrangement in

such manner as is specified in the order; and

(ii) if the court thinks fit — declaring the

contract or arrangement to have had effect as

so varied on and after such date as is

specified in the order (which may be a date

that is before the date on which the order is

made);

(c) an order refusing to enforce any or all of the

provisions of such a contract or arrangement;

(d) an order directing the respondent to refund money or

return property to the injured person;

(e) except if the order is to be made under

section 239(1) — an order directing the respondent

to pay the injured person the amount of the loss or

damage;

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(f) an order directing the respondent, at his or her own

expense, to repair, or provide parts for, goods that

had been supplied by the respondent to the injured

person;

(g) an order directing the respondent, at his or her own

expense, to supply specified services to the injured

person;

(h) an order, in relation to an instrument creating or

transferring an interest in land, directing the

respondent to execute an instrument that:

(i) varies, or has the effect of varying, the first

mentioned instrument; or

(ii) terminates or otherwise affects, or has the

effect of terminating or otherwise affecting,

the operation or effect of the first mentioned

instrument.

244. Power of a court to make orders

A court may make an order under Subdivision A or B of

this Division whether or not the court:

(a) grants an injunction under Division 2 of this Part; or

(b) makes an order under section 236, 246, 247 or 248.

245. Interaction with other provisions

Subdivisions A and B of this Division do not limit the

generality of Division 2 of this Part.

Division 5 — Other remedies

246. Non-punitive orders

(1) A court may, on application of the regulator, make one or

more of the orders mentioned in subsection (2) in relation

to a person who has engaged in conduct that:

(a) contravenes a provision of Chapter 2, 3 or 4; or

(b) constitutes an involvement in a contravention of

such a provision.

(2) The court may make the following orders in relation to the

person who has engaged in the conduct:

(a) an order directing the person to perform a service

that is specified in the order, and that relates to the

conduct, for the benefit of the community or a

section of the community;

(aa) an order requiring the person, at the person’s

expense, to engage:

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(i) another person specified in the order; or

(ii) another person in a class of persons specified

in the order;

to perform a service that is specified in the order and

that relates to the conduct, for the benefit of the

community or a section of the community;

(b) an order for the purpose of ensuring that the person

does not engage in the conduct, similar conduct, or

related conduct, during the period of the order

(which must not be longer than 3 years) including:

(i) an order directing the person to establish a

compliance program for employees or other

persons involved in the person’s business,

being a program designed to ensure their

awareness of the responsibilities and

obligations in relation to such conduct; and

(ii) an order directing the person to establish an

education and training program for

employees or other persons involved in the

person’s business, being a program designed

to ensure their awareness of the

responsibilities and obligations in relation to

such conduct; and

(iii) an order directing the person to revise the

internal operations of the person’s business

which led to the person engaging in such

conduct;

(c) an order requiring the person to disclose, in the way

and to the persons specified in the order, such

information as is so specified, being information that

the person has possession of or access to;

(d) an order requiring the person to publish, at the

person’s expense and in the way specified in the

order, an advertisement in the terms specified in, or

determined in accordance with, the order.

Note: The following are examples of orders that the court may

make under subsection (2)(a):

(a) an order requiring a person who has made false

representations to make available a training video

which explains advertising obligations under this

Schedule;

(b) an order requiring a person who has engaged in

misleading or deceptive conduct in relation to a

product to carry out a community awareness program

to address the needs of consumers when purchasing

the product.

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(2A) An order under subsection (2)(aa) is not enforceable

against a person mentioned in subsections (2)(aa)(i)

and (ii).

(3) This section does not limit a court’s powers under any

other provision of this Schedule.

247. Adverse publicity orders

(1) A court may, on application of the regulator, make an

adverse publicity order in relation to a person who:

(a) has contravened a provision of Part 2-2 or Chapter 3;

or

(b) has committed an offence against Chapter 4.

(2) An adverse publicity order in relation to a person is an

order that requires the person:

(a) to disclose, in the way and to the persons specified in

the order, such information as is so specified, being

information that the person has possession of or

access to; and

(b) to publish, at the person’s expense and in the way

specified in the order, an advertisement in the terms

specified in, or determined in accordance with, the

order.

(3) This section does not limit a court’s powers under any

other provision of this Schedule.

248. Order disqualifying a person from managing corporations

(1) A court may, on application of the regulator, make an order

disqualifying a person from managing corporations for a

period that the court considers appropriate if:

(a) the court is satisfied that the person has contravened,

has attempted to contravene or has been involved in

a contravention of any of the following provisions:

(i) a provision of Part 2-2 (which is about

unconscionable conduct);

(ii) a provision of Part 3-1 (which is about unfair

practices);

(iii) a provision (other than section 85) of

Division 2 of Part 3-2 (which is about

unsolicited consumer agreements);

(iv) section 106(1), (2), (3) or (5), 107(1)

or (2), 118(1), (2), (3) or (5), 119(1)

or (2), 125(4), 127(1) or (2), 128(2)

or (6), 131(1) or 132(1) (which are about

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safety of consumer goods and product

related services);

(v) section 136(1), (2) or (3) or 137(1) or (2)

(which are about information standards);

(vi) a provision of Chapter 4 (which is about

offences); and

(b) the court is satisfied that the disqualification is

justified.

Note: Section 206EA of the Corporations Act 2001 provides that a

person is disqualified from managing corporations if a court

order is in force under this section. That Act contains various

consequences for persons so disqualified.

(2) In determining under subsection (1) whether the

disqualification is justified, the court may have regard to:

(a) the person’s conduct in relation to the management,

business or property of any corporation; and

(b) any other matters that the court considers

appropriate.

(3) If the court makes an order under subsection (1), the

regulator must:

(a) notify ASIC; and

(b) give ASIC a copy of any such order.

Note: ASIC must keep a register of persons who have been

disqualified from managing corporations: see

section 1274AA of the Corporations Act 2001.

(4) For the purposes of this Schedule (other than this section or

section 249), an order under this section is not a penalty.

249. Privilege against exposure to penalty or forfeiture —

disqualification from managing corporations

(1) In a civil or criminal proceeding under, or arising out of,

this Schedule, a person is not entitled to refuse or fail to

comply with a requirement:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of

the document or other thing, or doing that other act, as the

case may be, might tend to expose the person to a penalty

(including forfeiture) by way of an order under section 248.

(2) Subsection (1) applies whether or not the person is a

defendant in the proceeding or in any other proceeding.

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(3) A person is not entitled to refuse or fail to comply with a

requirement under this Schedule:

(a) to answer a question or give information; or

(b) to produce a document or any other thing; or

(c) to do any other act;

on the ground that the answer or information, production of

the document or other thing, or doing that other act, as the

case may be, might tend to expose the person to a penalty

(including forfeiture) by way of an order under section 248.

250. Declarations relating to consumer contracts and small business

contracts

(1) The Court may declare that a term of a consumer contract

is an unfair term, on application by:

(a) a party to the contract; or

(b) the regulator.

(2) The Court may declare that a term of a small business

contract is an unfair term, on application by:

(a) a party to the contract, if the party was a business of

the kind referred to in paragraph 23(4)(b) at the time

the contract was entered into; or

(b) the regulator.

(3) Subsections (1) and (2) do not apply unless the contract is a

standard form contract.

(4) Subsections (1) and (2) do not apply if Part 2-3 does not

apply to the contract.

(5) Subsections (1) and (2) do not limit any other power of the

court to make declarations.

Division 6Defences

251. Publication of advertisement in the ordinary course of business

(1) This section applies to a proceeding under this Part in

relation to a contravention of a provision of Part 2-1 or 2-2

or Chapter 3 if the contravention was committed by the

publication of an advertisement.

(2) In the proceeding, it is a defence if the defendant proves

that:

(a) the defendant is a person whose business it is to

publish or arrange for the publication of

advertisements; and

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(b) the defendant received the advertisement for

publication in the ordinary course of business; and

(c) the defendant did not know, and had no reason to

suspect, that its publication would amount to a

contravention of such a provision.

252. Supplying consumer goods for the purpose of re-supply

(1) This section applies to a proceeding under this Part in

relation to a contravention of a provision of Part 2-1 or 2-2

or Chapter 3 committed by:

(a) the supplying of consumer goods that did not

comply with a safety standard for such goods; or

(b) the supplying of consumer goods by a supplier who

did not comply with an information standard for

such goods.

(2) In the proceeding, it is a defence if the defendant proves

that:

(a) the consumer goods were acquired by the defendant

for the purpose of re-supply; and

(b) the consumer goods were so acquired from a person

who carried on in Australia a business of supplying

such goods otherwise than as the agent of a person

outside Australia; and

(c) either:

(i) the defendant did not know, and could not

with reasonable diligence have ascertained,

that the consumer goods did not comply with

that safety standard, or that the defendant

had not complied with that information

standard, as the case may be; or

(ii) the defendant relied in good faith on a

representation by the person from whom the

defendant acquired the goods that there was

no safety standard or information standard,

as the case may be, for such consumer

goods.

(3) A defendant is not entitled to rely on the defence provided

by subsection (2) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice identifying the person

from whom the defendant acquired the consumer

goods.

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253. Supplying product related services for the purpose of re-supply

(1) This section applies to a proceeding under this Part in

relation to a contravention of a provision of Part 2-1 or 2-2

or Chapter 3 committed by:

(a) the supplying of product related services that did not

comply with a safety standard for such services; or

(b) the supplying of product related services by a

supplier who did not comply with an information

standard for such services.

(2) In the proceeding, it is a defence if the defendant proves

that:

(a) the product related services were acquired by the

defendant for the purpose of re-supply; and

(b) the product related services were so acquired from a

person who carried on in Australia a business of

supplying such services otherwise than as the agent

of a person outside Australia; and

(c) either:

(i) the defendant did not know, and could not

with reasonable diligence have ascertained,

that the product related services did not

comply with that safety standard, or that the

defendant had not complied with that

information standard, as the case may be; or

(ii) the defendant relied in good faith on a

representation by the person from whom the

defendant acquired the goods that there was

no safety standard or information standard,

as the case may be, for such product related

services.

(3) A defendant is not entitled to rely on the defence provided

by subsection (2) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the

day on which the hearing of the proceeding

commences, served on the person who instituted the

proceeding a written notice identifying the person

from whom the defendant acquired the product

related services.

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Part 5-3Country of origin representations

254. Overview

This Part provides that certain country of origin

representations made about goods do not contravene:

(a) section 18 (which deals with misleading or deceptive

conduct); or

(b) section 29(1)(a) or (k) or 151(1)(a) or (k) (which

deal with false or misleading representations).

255. Country of origin representations do not contravene certain

provisions

(1) A person does not contravene section 18, 29(1)(a) or (k)

or 151(1)(a) or (k) only by making a representation of a

kind referred to in an item in the first column of this table,

if the requirements of the corresponding item in the second

column are met.

Country of origin representations

Item Representation Requirements to be met

1 A representation that

goods were grown in

a particular country

(a) each significant ingredient or significant

component of the goods was grown in

that country; and

(b) all, or virtually all, processes involved

in the production or manufacture of the

goods happened in that country.

2 A representation that

goods are the

produce of a

particular country

(a) the country was the country of origin of

each significant ingredient or significant

component of the goods; and

(b) all, or virtually all, processes involved

in the production or manufacture of the

goods happened in that country.

3 A representation that

goods were made or

manufactured in, or

otherwise originate

in, a particular

country

(a) the goods were last substantially

transformed in that country; and

(b) the representation is not a representation

to which item 1 or 2 of this table

applies.

4 A representation in

the form of a mark

specified in an

information standard

relating to country of

origin labelling of

goods

the requirements under the information

standard relating to the use of that mark.

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(2) Goods were substantially transformed in a country if:

(a) the goods met, in relation to that country, the

requirements of item 1 or 2 in the second column of

the table in subsection (1); or

(b) as a result of one or more processes undertaken in

that country, the goods are fundamentally different

in identity, nature or essential character from all of

their ingredients or components that were imported

into that country.

(3) Without limiting subsection (2), the regulations:

(a) may prescribe (in relation to particular classes of

goods or otherwise) processes or combinations of

processes that, for the purposes of that subsection,

do not have the result described in subsection (2)(b);

and

(b) may include examples (in relation to particular

classes of goods or otherwise) of processes or

combinations of processes that, for the purposes of

that subsection, have the result described in

subsection (2)(b).

(5) Item 2 of the table in subsection (1) applies to 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”.

(7) Goods, or ingredients or components of goods, are grown

in a country if they:

(a) are materially increased in size or materially altered

in substance in that country by natural development;

or

(b) germinated or otherwise arose in, or issued in, that

country; or

(c) are harvested, extracted or otherwise derived from

an organism that has been materially increased in

size, or materially altered in substance, in that

country by natural development.

(8) For the purposes of item 1 of the table in subsection (1) in

relation to particular goods, packaging materials are not

treated as ingredients or components of the goods.

(9) For the purposes of item 1 of the table in subsection (1) in

relation to an ingredient or component, water added to the

ingredient or component is treated as having the same

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origin as the ingredient or component, regardless of its

actual origin if:

(a) the ingredient or component has been dried or

concentrated by the evaporation of water; and

(b) the added water returns the water content of the

ingredient or component to no more than its natural

level.

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

representations

If:

(a) proceedings are brought against a person in respect

of section 18, 29(1)(a) or (k) or 151(1)(a) or (k); and

(b) the person seeks to rely on a provision of this Part,

or of a regulation made for the purposes of a

provision of this Part, 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.

Part 5-4Remedies relating to guarantees

Division 1Action against suppliers

Subdivision A — Action against suppliers of goods

259. Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or

commerce, goods to the consumer; and

(b) a guarantee that applies to the supply under

Subdivision A of Division 1 of Part 3-2 (other than

sections 58 and 59(1)) is not complied with.

(2) If the failure to comply with the guarantee can be remedied

and is not a major failure:

(a) the consumer may require the supplier to remedy the

failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the

supplier refuses or fails to comply with the

requirement, or fails to comply with the requirement

within a reasonable time—the consumer may:

(i) otherwise have the failure remedied and, by

action against the supplier, recover all

reasonable costs incurred by the consumer in

having the failure so remedied; or

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(ii) subject to section 262, notify the supplier

that the consumer rejects the goods and of

the ground or grounds for the rejection.

(3) If the failure to comply with the guarantee cannot be

remedied or is a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the

consumer rejects the goods and of the ground or

grounds for the rejection; or

(b) by action against the supplier, recover compensation

for any reduction in the value of the goods below the

price paid or payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover

damages for any loss or damage suffered by the consumer

because of the failure to comply with the guarantee if it

was reasonably foreseeable that the consumer would suffer

such loss or damage as a result of such a failure.

(5) Subsection (4) does not apply if the failure to comply with

the guarantee occurred only because of a cause

independent of human control that occurred after the goods

left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to

subsections (2) and (3).

(7) The consumer may take action under this section whether

or not the goods are in their original packaging.

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

A failure to comply with a guarantee referred to in

section 259(1)(b) that applies to a supply of goods is a

major failure if:

(a) the goods would not have been acquired by a

reasonable consumer fully acquainted with the

nature and extent of the failure; or

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description — from

that description; or

(ii) if they were supplied by reference to a

sample or demonstration model — from that

sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for

which goods of the same kind are commonly

supplied and they cannot, easily and within a

reasonable time, be remedied to make them fit for

such a purpose; or

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(d) the goods are unfit for a disclosed purpose that was

made known to:

(i) the supplier of the goods; or

(ii) a person by whom any prior negotiations or

arrangements in relation to the acquisition of

the goods were conducted or made;

and they cannot, easily and within a reasonable time,

be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they

are unsafe.

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

If, under section 259(2)(a), a consumer requires a supplier

of goods to remedy a failure to comply with a guarantee

referred to in section 259(1)(b), the supplier may comply

with the requirement:

(a) if the failure relates to title — by curing any defect

in title; or

(b) if the failure does not relate to title — by repairing

the goods; or

(c) by replacing the goods with goods of an identical

type; or

(d) by refunding:

(i) any money paid by the consumer for the

goods; and

(ii) an amount that is equal to the value of any

other consideration provided by the

consumer for the goods.

262. When consumers are not entitled to reject goods

(1) A consumer is not entitled, under section 259, to notify a

supplier of goods that the consumer rejects the goods if:

(a) the rejection period for the goods has ended; or

(b) the goods have been lost, destroyed or disposed of

by the consumer; or

(c) the goods were damaged after being delivered to the

consumer for reasons not related to their state or

condition at the time of supply; or

(d) the goods have been attached to, or incorporated in,

any real or personal property and they cannot be

detached or isolated without damaging them.

(2) The rejection period for goods is the period from the time

of the supply of the goods to the consumer within which it

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would be reasonable to expect the relevant failure to

comply with a guarantee referred to in section 259(1)(b) to

become apparent having regard to:

(a) the type of goods; and

(b) the use to which a consumer is likely to put them;

and

(c) the length of time for which it is reasonable for them

to be used; and

(d) the amount of use to which it is reasonable for them

to be put before such a failure becomes apparent.

263. Consequences of rejecting goods

(1) This section applies if, under section 259, a consumer

notifies a supplier of goods that the consumer rejects the

goods.

(2) The consumer must return the goods to the supplier unless:

(a) the goods have already been returned to, or retrieved

by, the supplier; or

(b) the goods cannot be returned, removed or

transported without significant cost to the consumer

because of:

(i) the nature of the failure to comply with the

guarantee to which the rejection relates; or

(ii) the size or height, or method of attachment,

of the goods.

(3) If subsection (2)(b) applies, the supplier must, within a

reasonable time, collect the goods at the supplier’s

expense.

(4) The supplier must, in accordance with an election made by

the consumer:

(a) refund:

(i) any money paid by the consumer for the

goods; and

(ii) an amount that is equal to the value of any

other consideration provided by the

consumer for the goods; or

(b) replace the rejected goods with goods of the same

type, and of similar value, if such goods are

reasonably available to the supplier.

(5) The supplier cannot satisfy subsection (4)(a) by permitting

the consumer to acquire goods from the supplier.

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(6) If the property in the rejected goods had passed to the

consumer before the rejection was notified, the property in

those goods revests in the supplier on the notification of

the rejection.

264. Replaced goods

If the goods are replaced under section 261(c) or 263(4)(b):

(a) the replacement goods are taken, for the purposes of

Division 1 of Part 3-2 and this Part, to be supplied

by the supplier; and

(b) the provisions of Division 1 of Part 3-2 and this Part

apply in relation to the replacement goods.

265. Termination of contracts for the supply of services that are

connected with rejected goods

(1) If:

(a) under section 259, a consumer notifies a supplier of

goods that the consumer rejects the goods; and

(b) the supplier is required under section 263(4)(a) to

give the consumer a refund; and

(c) a person supplies, in trade or commerce, services to

the consumer that are connected with the rejected

goods;

the consumer may terminate the contract for the supply of

the services.

(2) The termination takes effect:

(a) at the time the termination is made known to the

supplier of the services (whether by words or by

conduct indicating the consumer’s intention to

terminate the contract); or

(b) if it is not reasonably practicable to communicate

with the supplier of the services — at the time the

consumer indicates, by means which are reasonable

in the circumstances, his or her intention to terminate

the contract.

(3) The consumer is entitled to recover, by action against the

supplier of the services, a refund of:

(a) any money paid by the consumer for the services;

and

(b) an amount that is equal to the value of any other

consideration provided by the consumer for the

services;

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to the extent that the consumer has not already

consumed the services at the time the termination

takes effect.

266. Rights of gift recipients

If a consumer acquires goods from a supplier and gives

them to another person as a gift, the other person may,

subject to any defence which would be available to the

supplier against the consumer:

(a) exercise any rights or remedies under this

Subdivision which would be available to the other

person if he or she had acquired the goods from the

supplier; and

(b) any reference in this Subdivision to a consumer

includes a reference to the other person accordingly.

Subdivision B — Action against suppliers of services

267. Action against suppliers of services

(1) A consumer may take action under this section if:

(a) a person (the supplier) supplies, in trade or

commerce, services to the consumer; and

(b) a guarantee that applies to the supply under

Subdivision B of Division 1 of Part 3-2 is not

complied with; and

(c) unless the guarantee is the guarantee under

section 60 — the failure to comply with the

guarantee did not occur only because of:

(i) an act, default or omission of, or a

representation made by, any person other

than the supplier, or an agent or employee of

the supplier; or

(ii) a cause independent of human control that

occurred after the services were supplied.

(2) If the failure to comply with the guarantee can be remedied

and is not a major failure:

(a) the consumer may require the supplier to remedy the

failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the

supplier refuses or fails to comply with the

requirement, or fails to comply with the requirement

within a reasonable time — the consumer may:

(i) otherwise have the failure remedied and, by

action against the supplier, recover all

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reasonable costs incurred by the consumer in

having the failure so remedied; or

(ii) terminate the contract for the supply of the

services.

(3) If the failure to comply with the guarantee cannot be

remedied or is a major failure, the consumer may:

(a) terminate the contract for the supply of the services;

or

(b) by action against the supplier, recover compensation

for any reduction in the value of the services below

the price paid or payable by the consumer for the

services.

(4) The consumer may, by action against the supplier, recover

damages for any loss or damage suffered by the consumer

because of the failure to comply with the guarantee if it

was reasonably foreseeable that the consumer would suffer

such loss or damage as a result of such a failure.

(5) To avoid doubt, subsection (4) applies in addition to

subsections (2) and (3).

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

A failure to comply with a guarantee referred to in

section 267(1)(b) that applies to a supply of services is a

major failure if:

(a) the services would not have been acquired by a

reasonable consumer fully acquainted with the

nature and extent of the failure; or

(b) the services are substantially unfit for a purpose for

which services of the same kind are commonly

supplied and they cannot, easily and within a

reasonable time, be remedied to make them fit for

such a purpose; or

(c) both of the following apply:

(i) the services, and any product resulting from

the services, are unfit for a particular

purpose for which the services were

acquired by the consumer that was made

known to the supplier of the services;

(ii) the services, and any of those products,

cannot, easily and within a reasonable time,

be remedied to make them fit for such a

purpose; or

(d) both of the following apply:

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(i) the services, and any product resulting from

the services, are not of such a nature, or

quality, state or condition, that they might

reasonably be expected to achieve a result

desired by the consumer that was made

known to the supplier;

(ii) the services, and any of those products,

cannot, easily and within a reasonable time,

be remedied to achieve such a result; or

(e) the supply of the services creates an unsafe situation.

269. Termination of contracts for the supply of services

(1) This section applies if, under section 267, a consumer

terminates a contract for the supply of services.

(2) The termination takes effect:

(a) at the time the termination is made known to the

supplier of the services (whether by words or by

conduct indicating the consumer’s intention to

terminate the contract); or

(b) if it is not reasonably practicable to communicate

with the supplier of the services — at the time the

consumer indicates, by means which are reasonable

in the circumstances, his or her intention to terminate

the contract.

(3) The consumer is entitled to recover, by action against the

supplier of the services, a refund of:

(a) any money paid by the consumer for the services;

and

(b) an amount that is equal to the value of any other

consideration provided by the consumer for the

services;

to the extent that the consumer has not already consumed

the services at the time the termination takes effect.

270. Termination of contracts for the supply of goods that are

connected with terminated services

(1) If:

(a) under section 267, a consumer terminates a contract

for the supply of services; and

(b) a person (the supplier) has supplied, in trade or

commerce, goods to the consumer that are connected

with the services;

then:

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(c) the consumer is taken to have rejected the goods at

the time the termination of the contract takes effect;

and

(d) the consumer must return the goods to the supplier

of the goods unless:

(i) the goods have already been returned to, or

retrieved by, the supplier; or

(ii) the goods cannot be returned, removed or

transported without significant cost to the

consumer because of the nature of the failure

to comply with the guarantee to which the

rejection relates, or because of the size or

height, or method of attachment, of the

goods; and

(e) the supplier must refund:

(i) any money paid by the consumer for the

goods; and

(ii) an amount that is equal to the value of any

other consideration provided by the

consumer for the goods.

(2) If subsection (1)(d)(ii) applies, the supplier must collect the

goods at the supplier’s expense.

Division 2Action for damages against manufacturers of goods

271. Action for damages against manufacturers of goods

(1) If:

(a) the guarantee under section 54 applies to a supply of

goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action

against the manufacturer of the goods, recover damages

from the manufacturer.

(2) Subsection (1) does not apply if the guarantee under

section 54 is not complied with only because of:

(a) an act, default or omission of, or any representation

made by, any person other than the manufacturer or

an employee or agent of the manufacturer; or

(b) a cause independent of human control that occurred

after the goods left the control of the manufacturer;

or

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(c) the fact that the price charged by the supplier was

higher than the manufacturer’s recommended retail

price, or the average retail price, for the goods.

(3) If:

(a) a person supplies, in trade or commerce, goods by

description to a consumer; and

(b) the description was applied to the goods by or on

behalf of the manufacturer of the goods, or with

express or implied consent of the manufacturer; and

(c) the guarantee under section 56 applies to the supply

and it is not complied with;

an affected person in relation to the goods may, by action

against the manufacturer of the goods, recover damages

from the manufacturer.

(4) Subsection (3) does not apply if the guarantee under

section 56 is not complied with only because of:

(a) an act, default or omission of any person other than

the manufacturer or an employee or agent of the

manufacturer; or

(b) a cause independent of human control that occurred

after the goods left the control of the manufacturer.

(5) If:

(a) the guarantee under section 58 or 59(1) applies to a

supply of goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action

against the manufacturer of the goods, recover damages

from the manufacturer.

(6) If an affected person in relation to goods has, in accordance

with an express warranty given or made by the

manufacturer of the goods, required the manufacturer to

remedy a failure to comply with a guarantee referred to in

subsection (1), (3) or (5):

(a) by repairing the goods; or

(b) by replacing the goods with goods of an identical

type;

then, despite that subsection, the affected person is not

entitled to commence an action under that subsection to

recover damages of a kind referred to in section 272(1)(a)

unless the manufacturer has refused or failed to remedy the

failure, or has failed to remedy the failure within a

reasonable time.

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(7) The affected person in relation to the goods may

commence an action under this section whether or not the

goods are in their original packaging.

272. Damages that may be recovered by action against manufacturers

of goods

(1) In an action for damages under this Division, an affected

person in relation to goods is entitled to recover damages

for:

(a) any reduction in the value of the goods, resulting

from the failure to comply with the guarantee to

which the action relates, below whichever of the

following prices is lower:

(i) the price paid or payable by the consumer

for the goods;

(ii) the average retail price of the goods at the

time of supply; and

(b) any loss or damage suffered by the affected person

because of the failure to comply with the guarantee

to which the action relates if it was reasonably

foreseeable that the affected person would suffer

such loss or damage as a result of such a failure.

(2) Without limiting subsection (1)(b), the cost of inspecting

and returning the goods to the manufacturer is taken to be a

reasonably foreseeable loss suffered by the affected person

as a result of the failure to comply with the guarantee.

(3) Subsection (1)(b) does not apply to loss or damage suffered

through a reduction in the value of the goods.

273. Time limit for actions against manufacturers of goods

An affected person may commence an action for damages

under this Division at any time within 3 years after the day

on which the affected person first became aware, or ought

reasonably to have become aware, that the guarantee to

which the action relates has not been complied with.

Division 3Miscellaneous

274. Indemnification of suppliers by manufacturers

(1) A manufacturer of goods is liable to indemnify a person

(the supplier) who supplies the goods to a consumer if:

(a) the supplier is liable to pay damages under

section 259(4) to the consumer for loss or damage

suffered by the consumer; and

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(b) the manufacturer is or would be liable under

section 271 to pay damages to the consumer for the

same loss or damage.

(2) Without limiting subsection (1), a manufacturer of goods is

liable to indemnify a person (the supplier) who supplies

the goods to a consumer if:

(a) the supplier incurs costs because the supplier is

liable under this Part for a failure to comply with a

guarantee that applies to the supply under

Subdivision A of Division 1 of Part 3-2; and

(b) the failure is:

(i) a failure to comply with the guarantee under

section 54; or

(ii) a failure to comply with the guarantee under

section 55 in relation to a disclosed purpose

that the consumer made known to the

manufacturer either directly or through the

supplier or the person referred to in

section 55(2)(a)(ii); or

(iii) a failure to comply with the guarantee under

section 56 in relation to a description that

was applied to the goods by or on behalf of

the manufacturer of the goods, or with the

express or implied consent of the

manufacturer.

(3) The supplier may, with respect to the manufacturer’s

liability to indemnify the supplier, commence an action

against the manufacturer in a court of competent

jurisdiction for such legal or equitable relief as the supplier

could have obtained if that liability had arisen under a

contract of indemnity made between them.

(4) The supplier may commence the action at any time within

3 years after the earliest of the following days:

(a) the day, or the first day, as the case may be, on

which the supplier made a payment with respect to,

or otherwise discharged in whole or in part, the

liability of the supplier to the consumer;

(b) the day on which a proceeding was commenced by

the consumer against the supplier with respect to that

liability or, if more than one such proceeding was

commenced, the day on which the first such

proceeding was commenced.

275. Limitation of liability etc.

If:

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(a) there is a failure to comply with a guarantee that

applies to a supply of services under Subdivision B

of Division 1 of Part 3-2; and

(b) the law of a State or a Territory is the proper law of

the contract;

that law applies to limit or preclude liability for the failure,

and recovery of that liability (if any), in the same way as it

applies to limit or preclude liability, and recovery of any

liability, for a breach of a term of the contract for the

supply of the services.

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

(1) A term of a contract (including a term that is not set out in

the contract but is incorporated in the contract by another

term of the contract) is void to the extent that the term

purports to exclude, restrict or modify, or has the effect of

excluding, restricting or modifying:

(a) the application of all or any of the provisions of this

Part; or

(b) the exercise of a right a conferred by such a

provision; or

(c) any liability of a person in relation to a failure to

comply with a guarantee that applies under

Division 1 of Part 3-2 to a supply of goods or

services.

(2) A term of a contract is not taken, for the purposes of this

section, to exclude, restrict or modify the application of a

provision of this Part unless the term does so expressly or

is inconsistent with the provision.

(3) This section does not apply to a term of a contract that is a

term referred to in section 276A(4).

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

seller

(1) Despite section 274, if goods are not of a kind ordinarily

acquired for personal, domestic or household use or

consumption, the liability under that section of the

manufacturer of the goods to a person (the supplier) who

supplied the goods to a consumer is limited to a liability to

pay to the supplier an amount equal to:

(a) the cost of replacing the goods; or

(b) the cost of obtaining equivalent goods; or

(c) the cost of having the goods repaired;

whichever is the lowest amount.

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(2) Subsection (1) does not apply in relation to particular

goods if the supplier establishes that it is not fair or

reasonable for the liability of the manufacturer of the 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 supplier in relation to goods to be limited

as mentioned in subsection (1), a court is to have regard to

all the circumstances of the case, and in particular to the

following matters:

(a) the availability of suitable alternative sources of

supply of the goods;

(b) the availability of equivalent goods;

(c) whether the goods were manufactured, processed or

adapted to the special order of the supplier.

(4) This section is subject to any term of a contract between

the manufacturer and the supplier imposing on the

manufacturer a greater liability than the liability mentioned

in subsection (1).

277. Representative actions by the regulator

(1) The regulator may, by application, commence an action

under this Part on behalf of one or more persons identified

in the application who are entitled under this Part to take

the action.

(2) The regulator may only make the application if it has

obtained the written consent of the person, or each of the

persons, on whose behalf the application is being made.

Part 5-5Liability of suppliers and credit providers

Division 1Linked credit contracts

278. Liability of suppliers and linked credit providers relating to

linked credit contracts

(1) If a consumer who is a party to a linked credit contract

suffers loss or damage as a result of:

(a) a misrepresentation relating to the credit provided

under that linked credit contract, or to a supply of

goods or services (a related supply) to which that

contract relates; or

(b) a breach of the linked credit contract, or of a contract

for a related supply; or

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(c) the failure of consideration in relation to the linked

credit contract, or to a contract for a related supply;

or

(d) a failure to comply with a guarantee that applies,

under section 54, 55, 56, 57, 60, 61 or 62, in relation

to a related supply; or

(e) a breach of a warranty that is implied in the linked

credit contract by section 12ED of the Australian

Securities and Investments Commission Act 2001;

the linked credit provider who is a party to the contract,

and the supplier of a related supply, are jointly and

severally liable to the consumer for the amount of the loss

or damage.

(2) A linked credit contract is a contract that a consumer

enters into with a linked credit provider of a person (the

supplier) for the provision of credit in relation to:

(a) the supply by way of sale, lease, hire or

hire-purchase of goods to the consumer by the linked

credit provider where the supplier supplies the

goods, or causes the goods to be supplied, to the

linked credit provider; or

(b) the supply by the supplier of goods or services, or

goods and services, to the consumer.

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

(1) If a linked credit provider, and a supplier of the goods or

services, are liable under section 278 to a consumer for an

amount of loss or damage, the consumer may recover the

amount by action in a court of competent jurisdiction.

(2) The consumer must bring the action against the linked

credit provider and the supplier jointly.

(3) Subsection (2) does not apply if:

(a) the supplier has been dissolved or the winding up of

the supplier has commenced; or

(b) both of the following apply:

(i) in the opinion of the court in which the

action is taken, it is not reasonably likely

that a judgment obtained against the supplier

would be satisfied;

(ii) that court has, on the application of the

consumer, declared that that subsection does

not apply in relation to the proceedings.

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page 306 [This compilation shows amendments proposed by Bill No. 19-2.]

280. Cases where a linked credit provider is not liable

(1) In joint liability proceedings, a linked credit provider is not

liable to a consumer under section 278 if the linked credit

provider establishes that:

(a) the credit provided by the credit provider to the

consumer was the result of an approach made to the

credit provider by the consumer; and

(b) the approach was not induced by the supplier of the

goods or services to which the linked credit contract

relates.

(2) In joint liability proceedings, a linked credit provider is not

liable to a consumer under section 278 if the proceedings

relate to the supply by way of lease, hire or hire-purchase

of goods to the consumer by the linked credit provider, and

the credit provider establishes that:

(a) after due inquiry before becoming a linked credit

provider of the supplier of the goods, 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

(b) after becoming a linked credit provider of the

supplier, the credit provider had not had cause to

suspect that:

(i) the consumer might be entitled to recover an

amount of loss or damage suffered as a

result of a misrepresentation, breach, failure

of consideration, failure to comply with a

guarantee, or breach of a warranty, referred

to in section 278(1); and

(ii) the supplier might be unable to meet the

supplier’s liabilities as and when they fall

due.

(3) In joint liability proceedings, a linked credit provider is not

liable to a consumer under section 278 if the proceedings

relate to a contract of sale in relation to which a tied loan

contract applies and the linked credit provider establishes

that:

(a) after due inquiry before becoming a linked credit

provider of the supplier of goods to which the

contract relates, 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

(b) after becoming a linked credit provider of the

supplier, but before the tied loan contract was

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entered into, the linked credit provider had not had

cause to suspect that:

(i) the consumer might, if the tied loan contract

was entered into, be entitled to recover an

amount of loss or damage suffered as a

result of a misrepresentation, breach, failure

of consideration, failure to comply with a

guarantee, or breach of a warranty, referred

to in section 278(1); and

(ii) the supplier might be unable to meet the

supplier’s liabilities as and when they fall

due.

(4) In joint liability proceedings, a linked credit provider is not

liable to a consumer under section 278 if:

(a) the proceedings relate to a contract of sale in relation

to which a tied continuing credit contract entered

into by the linked credit provider applies; and

(b) the credit provider establishes the matter referred to

in subsection (5), having regard to:

(i) the nature and volume of business carried on

by the credit provider; and

(ii) such other matters as appear to be relevant in

the circumstances of the case.

(5) The matter for the purposes of subsection (4) is that the

linked credit provider, before first becoming aware of:

(a) the contract of sale referred to in paragraph (a) of

that subsection; or

(b) proposals for the making of such a contract;

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 a misrepresentation, breach, failure of

consideration, failure to comply with a guarantee, or a

breach of a warranty, referred to in section 278(1).

(6) This section has effect despite section 278(1).

281. Amount of liability of linked credit providers

The liability of a linked credit provider to a consumer

under section 278(1) in relation to a contract referred to in

section 278(1) is limited to an amount that does not exceed

the sum of:

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page 308 [This compilation shows amendments proposed by Bill No. 19-2.]

(a) the amount financed under the tied loan contract,

tied continuing credit contract, lease contract,

contract of hire or contract of hire-purchase; and

(b) the amount of interest (if any), or damages in the

nature of interest, allowed or awarded against the

credit provider by the court in which the action in

relation to the liability is taken; and

(c) the amount of costs (if any) awarded by that court

against the credit provider or supplier, or both.

282. Counter-claims and offsets

(1) If proceedings in relation to a linked credit contract are

brought against a consumer who is party to the contract by

the linked credit provider who is a party to the contract, the

consumer is not entitled to:

(a) make a counter-claim in relation to the credit

provider’s liability under section 278(1); or

(b) exercise a right conferred by subsection (3) of this

section in relation to that liability;

unless the consumer claims in the proceedings against the

supplier in respect of the liability, by third-party

proceedings or otherwise.

(2) Subsection (1) does not apply if:

(a) the supplier has been dissolved or the winding up of

the supplier has commenced; or

(b) both of the following apply:

(i) 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;

(ii) that court has, on the application of the

consumer, declared that that subsection does

not apply in relation to the proceedings.

(3) In any proceedings in relation to a linked credit contract in

which the linked credit provider who is a party to the

contract claims damages or an amount of money from a

consumer, the consumer may offset, in whole or in part, the

consumer’s liability against any liability of the credit

provider under section 278(1).

283. Enforcement of judgments etc.

(1) If, in joint liability proceedings, judgment is given against

a supplier and a linked credit provider, the judgment must

not be enforced against the credit provider unless a written

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demand made on the supplier for satisfaction of the

judgment has remained unsatisfied for at least 30 days.

(2) If the judgment can be enforced against the linked credit

provider, it may only be enforced to the extent of the lesser

of the following amounts:

(a) the amount calculated in accordance with

section 281;

(b) so much of the judgment debt as has not been

satisfied by the supplier.

(3) If, in joint liability proceedings, a right conferred by

section 282(3) is established by a consumer against a

linked credit provider, the consumer must not receive the

benefit of the right unless:

(a) judgment has been given against the supplier and

credit provider; and

(b) a written demand has been made on the supplier for

satisfaction of the judgment; and

(c) the demand has remained unsatisfied for at least

30 days.

(4) If the consumer can receive the benefit of a right conferred

by section 282(3), the consumer may only receive the

benefit to the extent of the lesser of the following amounts:

(a) the amount calculated in accordance with

section 281;

(b) so much of the judgment debt as has not been

satisfied by the supplier.

(5) Subsections (1) and (3) do not apply if:

(a) the supplier has been dissolved or the winding up of

the supplier has commenced; or

(b) both of the following apply:

(i) 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;

(ii) that court has, on the application of the

consumer, declared that those subsections do

not apply in relation to the proceedings.

(6) If a judgment given in joint liability proceedings is

enforced against a linked credit provider of a supplier, the

credit provider is subrogated to the extent of the enforced

judgment to any rights that the consumer would have had

but for the judgment against the supplier or any other

person.

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page 310 [This compilation shows amendments proposed by Bill No. 19-2.]

284. Award of interest to consumers

(1) If, in joint liability proceedings, judgment is given against

the following (the defendant) for an amount of loss or

damage:

(a) a supplier and a linked credit provider;

(b) a linked credit provider;

the court must, on the application of the consumer who

suffered the loss or damage, award interest to the consumer

against the defendant upon the whole or a part of the

amount, unless good cause is shown to the contrary.

(2) The interest must be awarded from the time when the

consumer became entitled to recover the amount until the

date on which the judgment is given, at the greater of the

following rates:

(a) if the amount payable by the consumer to the linked

credit provider for obtaining 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 by the

regulations.

(3) In determining whether good cause is shown against the

awarding of interest under subsection (1), the court must

take into account any payment made into court by the

supplier or the linked credit provider.

(4) This section applies despite any other law.

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

credit providers to suppliers

(1) If a linked credit provider and supplier are liable, under

section 278, to a consumer who is a party to a linked credit

contract:

(a) if the liability relates to a supply of goods or services

to which the linked credit contract relates — the

supplier is liable to the credit provider for the

amount of loss suffered by the credit provider, unless

the supplier and credit provider otherwise agree; or

(b) if the liability relates to the linked credit contract—

the credit provider is liable to the supplier for the

amount of loss suffered by the supplier, unless the

supplier and credit provider otherwise agree.

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page 311 [This compilation shows amendments proposed by Bill No. 19-2.]

(2) The amount for which the supplier is liable under

subsection (1)(a) of this section is an amount not exceeding

the sum of the following amounts:

(a) the maximum amount of the linked credit provider’s

liability under section 281;

(b) unless the court otherwise determines, the amount of

costs (if any) reasonably incurred by the linked

credit provider in defending the joint liability

proceedings.

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

National Credit Code

(1) If:

(a) a consumer is seeking, in joint liability proceedings,

to recover an amount under section 279 in relation to

a contract for the supply of goods or services; and

(b) the contract has been rescinded or discharged

(whether under this Schedule or any other law); and

(c) as a result of the contract being rescinded or

discharged, the consumer is entitled under

section 135 of the National Credit Code to terminate

a linked credit contract; and

(d) the consumer terminates the linked credit contract

under that section;

the following amounts may be recovered in the joint

liability proceedings (to the extent that they have not been

recovered under section 135 of the National Credit Code):

(e) any amount that the consumer is entitled under

section 135 of the National Credit Code to recover

from the credit provider under the linked credit

contract;

(f) any amount that the credit provider is entitled under

section 135 of the National Credit Code to recover

from:

(i) the consumer; or

(ii) if the supplier under the contract for the

supply of goods or services is a party to the

joint liability proceedings — the supplier.

(2) An amount that is recovered under subsection (1) ceases to

be recoverable under section 135 of the National Credit

Code.

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page 312 [This compilation shows amendments proposed by Bill No. 19-2.]

Division 2Non-linked credit contracts

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

credit contracts

(1) If a consumer who is a party to a non-linked credit contract

suffers loss or damage as a result of a failure to comply

with a guarantee that applies, under

section 54, 55, 56, 57, 60, 61 or 62, in relation to a supply

to which the contract relates, the credit provider who is a

party to the contract is not under any liability to the

consumer for the amount of the loss or damage.

(2) Subsection (1) does not prevent the consumer from

recovering that amount by action against the supplier of the

goods or services to which the contract relates.

(3) If a consumer who is a party to a non-linked credit contract

suffers loss or damage as a result of a breach of a warranty

that is implied in the contract by section 12ED of the

Australian Securities and Investments Commission

Act 2001, the supplier of the goods or services to which the

contract relates is not under any liability to the consumer

for the amount of the loss or damage.

(4) Subsection (3) does not prevent the consumer from

recovering that amount by action against the credit

provider who is a party to the contract.

(5) A non-linked credit contract is a contract that a consumer

enters into with a credit provider for the provision of credit

in relation to:

(a) the supply by way of sale, lease, hire or

hire-purchase of goods to the consumer where:

(i) a person (the supplier) supplies the goods, or

the causes the goods to be supplied, to the

credit provider; and

(ii) the credit provider is not a linked credit

provider of the supplier; and

(iii) prior negotiations or arrangements in

relation to the acquisition of the goods were

conducted or made with the consumer by or

on behalf of the supplier; and

(iv) the credit provider did not take physical

possession of the goods before they were

delivered to the consumer; or

(b) the supply of services to the consumer by a person in

relation to whom the credit provider is not a linked

credit provider.

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page 313 [This compilation shows amendments proposed by Bill No. 19-2.]

Chapter 6—Application and transitional provisions

Part 1—Application and transitional provisions relating to

the Consumer Credit Legislation Amendment

(Enhancements) Act 2012

288. Application of amendments relating to lay-by agreements

The amendments made by items 1 to 8 and 10 to 15 of

Schedule 7 to the Consumer Credit Legislation Amendment

(Enhancements) Act 2012 apply to lay-by agreements

entered into on or after the commencement of those items.

289. Application of amendment relating to repairs

The amendment made by item 9 of Schedule 7 to the

Consumer Credit Legislation Amendment (Enhancements)

Act 2012 applies to notices to be given in relation to the

repair of goods accepted on or after the commencement of

that item.

290. Saving of regulations relating to repairs

Despite the amendment made to subsection 103(1) of

Schedule 2 to the Competition and Consumer Act 2010 by

item 9 of Schedule 7 to the Consumer Credit Legislation

Amendment (Enhancements) Act 2012, regulations that:

(a) were made for the purposes of that subsection; and

(b) were in force immediately before the

commencement of that item;

continue in force (and may be dealt with) as if they were

made for the purposes of that subsection as amended by

that item.

Part 1A—Application provision relating to the Treasury

Legislation Amendment (Small Business and Unfair

Contract Terms) Act 2015

290A. Application

(1) The amendments made by Schedule 1 to the Treasury

Legislation Amendment (Small Business and Unfair

Contract Terms) Act 2015 apply in relation to a contract

entered into on or after the commencement of that

Schedule.

(2) The amendments do not apply to a contract entered into

before the commencement of that Schedule. However:

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(a) if the contract is renewed on or after that

commencement—the amendments apply to the

contract as renewed, on and from the day (the

renewal day) on which the renewal takes effect, in

relation to conduct that occurs on or after the

renewal day; or

(b) if a term of the contract is varied on or after that

commencement and paragraph (a) has not already

applied in relation to the contract—the amendments

apply to the term as varied, on and from the day (the

variation day) on which the variation takes effect, in

relation to conduct that occurs on and after the

variation day.

(3) If paragraph (2)(b) of this section applies to a term of a

contract, subsection 23(2) and section 27 apply to the

contract.

(4) Despite paragraphs (2)(a) and (b) and subsection (3) of this

section, the amendments do not apply to a contract, or a

term of a contract, to the extent that the operation of the

amendments would result in an acquisition of property

(within the meaning of paragraph 51(xxxi) of the

Constitution) from a person otherwise than on just terms

(within the meaning of that paragraph of the Constitution).

Part 2—Application and transitional provisions relating to

the Competition and Consumer Amendment (Competition

Policy Review) Act 2017

291. Application of amendments relating to confidentiality of notices

The amendment made by Part 4 of Schedule 14 to the

Competition and Consumer Amendment (Competition

Policy Review) Act 2017 applies in relation to disclosures

made on or after the commencement of that Part that relate

to notices given on or after the commencement of that Part.

292. Application of amendments relating to prohibition on supplies

The amendments made by Part 6 of Schedule 14 to the

Competition and Consumer Amendment (Competition

Policy Review) Act 2017 apply in relation to unsolicited

consumer agreements made on or after the commencement

of that Part.

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Part 3—Application provision relating to the Treasury

Laws Amendment (2018 Measures No. 3) Act 2018

295. Application of amendments

The amendments made by Schedule 1 to the Treasury

Laws Amendment (2018 Measures No. 3) Act 2018 apply

in relation to acts or omissions that occur on or after the

commencement of that Schedule.

Part 4—Application provisions relating to the Treasury

Laws Amendment (Australian Consumer Law Review) Act

2018

296. Application—listed public companies

The amendments made by items 4 and 5 of Schedule 2 to

the Treasury Laws Amendment (Australian Consumer Law

Review) Act 2018 apply in relation to acts or omissions on

or after the day that Schedule commences.

297. Application—unsolicited supplies

The amendments made by Schedule 3 to the Treasury

Laws Amendment (Australian Consumer Law Review) Act

2018 apply in relation to acts or omissions on or after the

day that Schedule commences.

298. Application—unsolicited consumer agreements

The amendment made by Schedule 4 to the Treasury Laws

Amendment (Australian Consumer Law Review) Act 2018

applies in relation to acts or omissions that relate to

agreements entered into on or after the day that Schedule

commences.

299. Application—single price

The amendments made by Schedule 5 to the Treasury

Laws Amendment (Australian Consumer Law Review) Act

2018 apply in relation to acts or omissions on or after the

day that is 12 months after the day that Schedule

commences.

300. Application—non-punitive orders

The amendments made by Schedule 8 to the Treasury

Laws Amendment (Australian Consumer Law Review) Act

2018 apply in relation to orders relating to acts or

omissions on or after the day that Schedule commences.

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301. Application—guarantees relating to the supply of services

The amendments made by Schedule 9 to the Treasury

Laws Amendment (Australian Consumer Law Review) Act

2018 apply in relation to services supplied under a contract

entered into on or after the day that Schedule commences.

Part 5—Application and transitional provisions relating to

the Treasury Laws Amendment (Gift Cards) Act 2018

302. Application of amendments relating to gift cards

The amendments made by Schedule 1 to the Treasury

Laws Amendment (Gift Cards) Act 2018 apply to gift cards

supplied on or after 1 November 2019.