Fair Trading Act 1990

Fair Trading Act 1990

An Act to make provision with respect to certain unfair or undesirable trade practices and with respect to incidental matters

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Fair Trading Act 1990 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

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;

[Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] applicable industry code, in respect of a supplier that is a participant in an industry, means –

(a) the prescribed provisions of any mandatory industry code relating to the industry; and

(b) the prescribed provisions of any voluntary industry code that binds the supplier;

arrive at, in relation to an understanding, includes reach or enter into;

authorized officer means an authorized officer within the meaning of the Consumer Affairs Act 1988 ;

business includes –

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

(b) a trade or profession;

code of practice means a code of practice in respect of fair trading in dealings –

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

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

commencement day means the day proclaimed under section 2 ;

[Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] consumer, in respect of an industry, means a person to whom goods or services are, or may be, supplied by participants in the industry;

covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land), and proposed covenant has a corresponding meaning;

[Section 3 Subsection (1) amended by No. 17 of 1996, Applied:24 Jan 2002] Director means the person for the time being holding the office of Director of Consumer Affairs and Fair Trading under the Consumer Affairs Act 1988 ;

document includes –

(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced;

give effect to, in relation to a provision of a contract, arrangement, or understanding, includes doing an act or thing in pursuance of or in accordance with or enforce or purport to enforce;

goods includes –

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

(c) minerals, trees and crops, whether on, under, or attached to land or not; and

(d) anything growing on, or attached to, land that is severable from the land; and

(e) gas and electricity;

[Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] industry code means a code regulating the conduct of participants in the industry or their conduct towards consumers in the industry;

[Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] listed public company has the same meaning as it has in the Income Tax Assessment Act 1997 of the Commonwealth;

market, in relation to goods or services, means a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, those goods or services;

premises includes land;

price includes a charge of any description;

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

the regulations means the regulations made and in force under this Act;

related Act means an Act or a provision of an Act, other than this Act –

(a) the administration of which is the responsibility of the Minister; or

(b) that is prescribed by the regulations to be a related Act;

require, in relation to the giving of a covenant, means require or demand the giving of a covenant, whether by way of making a contract containing the covenant or otherwise, and whether or not a covenant is given in pursuance of the requirement or demand;

send includes deliver, and sent and sender have corresponding meanings;

services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and, without limiting the generality of the foregoing, includes the rights, benefits, privileges or 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, or of the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii) 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) 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;

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;

trader means a person who in the course of a business –

(a) supplies, or offers to supply, goods or services; or

(b) [Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] sells or lets, or offers to sell or let, premises;

[Section 3 Subsection (1) amended by No. 2 of 2003, s. 4, Applied:16 Apr 2003] voluntary industry code means an industry code that is declared to be voluntary.

(1A)  [Section 3 Subsection (1A) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] To avoid doubt, it is declared that –

(a) franchising is an industry for the purposes of this Act; and

(b) franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry.

(2)  In this Act, a reference to the supply of goods or services extends to the supply of both goods and services.

(3)  In this Act, a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including –

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

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

(c) the requiring of the giving of, or the giving of, a covenant.

(4)  In this Act, a reference to conduct, when that expression is used as a noun otherwise than as mentioned in subsection (3) , shall be read as a reference to the doing of or the refusing to do any act, including –

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

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

(c) the requiring of the giving of, or the giving of, a covenant.

(5)  In this Act, a reference to refusing to do an act includes a reference to –

(a) refraining (otherwise than inadvertently) from doing that act; or

(b) making it known that that act will not be done.

(6)  In this Act, 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.

(7)  [Section 3 Subsection (7) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] For the purposes of this Act, where a person makes a representation with respect to any future matter, including the doing of, or the refusing to do, any act, and that person does not have reasonable grounds for making the representation, the representation is taken to be misleading.

(8)  [Section 3 Subsection (8) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] For the purposes of the application of subsection (7) to a proceeding concerning a representation made by a person with respect to any future matter, that person is, unless he or she adduces evidence to the contrary, taken not to have had reasonable grounds for making the representation.

(9)  [Section 3 Subsection (9) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] Subsection (7) does not limit the meaning of a reference in this Act to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.

(10)  [Section 3 Subsection (10) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] Without limiting the meaning of "services" in subsection (1) , the obtaining of credit by a person in connection with the acquisition of goods or services by that person is taken to be the acquisition by that person of a service, and any amount by which the amount paid or payable by that person for the goods or services is increased by reason of so obtaining credit is taken to be paid or payable by that person for that service.

(11)  [Section 3 Subsection (11) inserted by No. 2 of 2003, s. 4, Applied:16 Apr 2003] Where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services is taken to have been –

(a) the price at which, at the time of the acquisition, that person could have purchased the goods or services from the supplier; or

(b) if, at the time of the acquisition –

(i) the goods or services were not available for purchase from the supplier; or

(ii) were so available only together with other property or services –

but, at that time, goods or services of the kind acquired were available for purchase from another supplier without any requirement to purchase other property or services, the lowest price at which that person could, at that time, reasonably have purchased goods or services of that kind from the other supplier; or

(c) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services, the value of the goods or services at that time.

4.   Application of provisions rendering contracts, &c., unenforceable

(1)  Where a provision of this Act is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that –

(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or

(b) the provision of the contract or the covenant will not, or may not have, that effect at a later time.

(2)  This section does not apply to a contract or covenant entered into before the commencement of this Act.

5.   Consumers

(1)  For the purposes of this Act, unless the contrary intention appears –

(a) a person shall be taken to have acquired particular goods as a consumer if, and only if –

(i) the price of the goods did not exceed the prescribed amount; or

(ii) where that price exceeded the prescribed amount, the goods were of a kind ordinarily acquired for personal, domestic, or household use or consumption or the goods consisted of a commercial road vehicle –

and the person did not acquire the goods, or hold himself or herself out as acquiring the goods, for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land; and

(b) a person shall be taken to have acquired particular services as a consumer if, and only if –

(i) the price of the services did not exceed the prescribed amount; or

(ii) where that price exceeded the prescribed amount, the services were of a kind ordinarily acquired for personal, domestic, or household use or consumption.

(2)  For the purposes of subsection (1) –

(a) the prescribed amount is $40 000 or, if a greater amount is prescribed for the purposes of this paragraph, that greater amount; and

(b) subject to paragraph (c) , the price of goods or services purchased by a person shall be taken to have been the amount paid or payable by the person for the goods or services; and

(c) where a person purchased goods or services together with other property or services, or with both other property and services, and a specified price was not allocated to the goods or services in the contract under which they were purchased, the price of the goods or services shall be taken to have been –

(i) the price at which, at the time of acquisition, the person could have purchased from the supplier the goods or services without the other property or services; or

(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier except together with the other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier without other property or services, the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

(iii) if, at the time of the acquisition, goods or services of the kind acquired were not available for purchase from any supplier except together with other property or services, the value of the goods or services at that time; and

(d) where a person acquired goods or services otherwise than by way of purchase, the price of the goods or services shall be taken to have been –

(i) the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier; or

(ii) if, at the time of the acquisition, the goods or services were not available for purchase from the supplier or were so available only together with other property or services but, at that time, goods or services of the kind acquired were available for purchase from another supplier, the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or

(iii) if goods or services of the kind acquired were not available, at the time of the acquisition, for purchase from any supplier or were not so available except together with other property or services, the value of the goods or services at that time; and

(e) without limiting the meaning of the expression services in section 3 , the obtaining of credit by a person in connection with the acquisition of goods or services by the person shall be deemed to be the acquisition by the person of a service and any amount by which the amount paid or payable by the person for the goods or services is increased by reason of the person so obtaining credit shall be deemed to be paid or payable by the person for that service.

(3)  In this section,

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

6.   Acquisition, supply, and re-supply

In this Act, unless the contrary intention appears –

(a) areference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of 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.

7.   References to purpose or reason

For the purposes of this Act –

(a) a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, or a covenant or a proposed covenant, shall be deemed to have had, or to have, a particular purpose if –

(i) the provision was included in the contract, arrangement or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to be required to be given, as the case may be, for that purpose or for purposes that included or include that purpose; and

(ii) that purpose was or is a substantial purpose; and

(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if –

(i) the person engaged or engages in the conduct for purposes that included or include that purpose or for reasons that included or include that reason, as the case may be; and

(ii) that purpose or reason was or is a substantial purpose or reason.

8.   Leases and licences of land and buildings

In this Act –

(a) a reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, land or a building or part of a building and shall be so construed notwithstanding the express references in this Act to such a lease or licence; and

(b) a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as 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, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.

9.   Loss or damage to include injury

In this Act –

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

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

10.   Severability

If the making of a contract after the commencement day contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 41 , nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision insofar as that provision is severable.

11.   Representations

(1)  For the purposes of this Act, where a person makes an inaccurate representation with respect to any future matter (including the doing of, or the refusing to do, any act) the representation shall be taken to be misleading unless the person has reasonable grounds for making the representation.

(2)  For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a person with respect to any future matter, the person shall, unless the person adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.

(3)  Subsection (1) shall be deemed not to limit the meaning of a reference in this Act to a misleading representation, a representation that is misleading in a material particular, or conduct that is misleading or is likely or liable to mislead.

12.   Application of Act

This Act applies to and in relation to transactions that take place, conduct that occurs, and representations that are made within this State, whether wholly or partly.

13.   Act to bind Crown

This Act binds the Crown not only in right of this State but also, so far as the legislative power of Parliament permits, binds the Crown in all of its other capacities.

PART 2 - Fair Trading

14.   Misleading or deceptive conduct

(1)  [Section 14 Subsection (1) amended by No. 7 of 2004, Sched. 1, Applied:01 Aug 2004] A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Penalty:  [Section 14 Subsection (1) amended by No. 7 of 2004, Sched. 1, Applied:01 Aug 2004] In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) an individual, a fine not exceeding 200 penalty units.

(2)  Nothing in the succeeding provisions of this Part shall be taken as limiting by implication the generality of subsection (1) .

15.   Unconscionable conduct

(1)  [Section 15 Subsection (1) amended by No. 7 of 2004, Sched. 1, Applied:01 Aug 2004] A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.

Penalty:  [Section 15 Subsection (1) amended by No. 7 of 2004, Sched. 1, Applied:01 Aug 2004] In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) an individual, a fine not exceeding 200 penalty units.

(2)  Without in any way limiting the matters to which a court may have regard for the purposes of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (in this subsection referred to as the "consumer"), a court may have regard to –

(a) the relative strengths of the bargaining positions of the person and the consumer; and

(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the person; and

(c) whether the consumer 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 consumer or a person acting on behalf of the consumer by the person or a person acting on behalf of the person in relation to the supply or possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the person.

(3)  A person shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to another person by reason only that the person –

(a) institutes legal proceedings in relation to that supply or possible supply; or

(b) refers a dispute or claim in relation to that supply or possible supply to arbitration.

(4)  For the purposes of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person –

(a) a court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) a court may have regard to conduct engaged in, or circumstances existing, before the commencement day.

(5)  A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption.

(6)  A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.

15A.   Unconscionable conduct in business transactions

[Section 15A Inserted by No. 2 of 2003, s. 5, Applied:16 Apr 2003]

(1)  This section applies to –

(a) the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is, or would be, for the purpose of trade or commerce; and

(b) the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is, or would be, for the purpose of trade or commerce –

unless –

(c) the supply or possible supply of the goods or services is at a price in excess of $3 000 000, or such higher amount as is prescribed; or

(d) the acquisition or possible acquisition of the goods or services is at a price in excess of $3 000 000, or such higher amount as is prescribed.

(2)  A person must not, in trade or commerce, in connection with –

(a) the supply or possible supply of goods or services to a person (other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company) –

where the supply or possible supply, or acquisition or possible acquisition, of the goods or services is, or would be, for the purpose of trade or commerce, engage in conduct that is, in all the circumstances, unconscionable.

(3)  Without in any way limiting the matters to which a court may have regard for the purpose of determining whether a person (in this section referred to as the "supplier") has contravened subsection (2) in connection with the supply or possible supply of goods or services to a person (in this section referred to as the "business consumer"), the court may have regard to –

(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and

(b) whether, as a result of conduct engaged in by the supplier, the business consumer 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 business consumer 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 business consumer or a person acting on behalf of the business consumer 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 business consumer 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 business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other like business consumers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the business consumer 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 business consumer –

(i) any intended conduct of the supplier that might affect the interests of the business consumer; and

(ii) any risks to the business consumer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and

(j) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and

(k) the extent to which the supplier and the business consumer acted in good faith.

(4)  Without in any way limiting the matters to which a court may have regard for the purpose of determining whether a person (in this section referred to as the "acquirer") has contravened subsection (2) or (3) in connection with the acquisition or possible acquisition of goods or services from a person or corporation (in this section referred to as the "small business supplier"), the court may have regard to –

(a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and

(b) whether, as a result of conduct engaged in by the acquirer, the small business 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 small business 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 small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and

(e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and

(f) the extent to which the acquirer's conduct towards the small business supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like small business suppliers; and

(g) the requirements of any applicable industry code; and

(h) the requirements of any other industry code, if the small business 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 small business supplier –

(i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and

(ii) any risks to the small business supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and

(j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the goods or services with the small business supplier; and

(k) the extent to which the acquirer and the small business supplier acted in good faith.

(5)  A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with –

(a) the supply or possible supply of goods or services to another person; or

(b) the acquisition or possible acquisition of goods or services from another person –

by reason only that the first-mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.

(6)  For the purpose of determining whether a person has contravened subsection (2)  –

(a) a court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) a court may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.

(7)  For the purposes of subsection (1)  –

(a) subject to paragraphs (b) , (c) , (d) and (e) , the price for –

(i) the supply or possible supply of goods or services to a person; or

(ii) the acquisition or possible acquisition of goods or services by a person –

is taken to be the amount paid or payable by the person for the goods or services; and

(b) subsection (10) of section 3 applies as if references in that subsection to the acquisition of goods or services by a person were references to –

(i) the supply of goods or services to a person following a purchase; or

(ii) the acquisition of goods or services by a person by way of purchase –

as the case requires; and

(c) subsection (11) of section 3 applies as if –

(i) the reference in that subsection to a person acquiring goods or services otherwise than by way of purchase included a reference to a person being supplied with goods or services otherwise than following a purchase; and

(ii) a reference in that subsection to acquisition included a reference to supply; and

(d) subsection (10) of section 3 applies as if references in that subsection to the acquisition of goods or services by a person, or to the acquisition of services by a person, included references to the supply of goods or services to a person, or to the supply of services to a person, as the case may be; and

(e) the price for the supply or possible supply, or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility.

16.   False representations

A person shall 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) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

(b) falsely represent that services are of a particular standard, quality, value or grade; or

(c) falsely represent that goods are new; or

(d) falsely represent that a particular person has agreed to acquire goods or services; or

(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; or

(f) represent that the person has a sponsorship, approval or affiliation it does not have; or

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

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

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

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

(k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

17.   False representations and other misleading or offensive conduct in relation to land

(1)  A person shall 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) represent that the person has a sponsorship, approval or affiliation it does not have; or

(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land; or

(c) offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.

(2)  A person shall not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land.

(3)  Nothing in this section shall be taken as implying that other provisions of this Part do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.

(4)  In this section, 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.

(5)  A person who contravenes this section is guilty of an offence and is liable on summary conviction to a penalty not exceeding –

(a) in the case of a person other than a corporation, 200 penalty units; or

(b) in the case of a corporation, 1 000 penalty units.

18.   Misleading conduct in relation to employment

A person shall 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 the availability, nature, terms or conditions of, or any other matter relating to, the employment.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

19.   Offering gifts and prizes

A person shall 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, offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

20.   Misleading conduct in relation to goods

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

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

21.   Certain misleading conduct in relation to services

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

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

21A.   Cash price to be specified

[Section 21A Inserted by No. 78 of 1993, s. 4 ]A person who, in trade or commerce, in connection with –

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply of goods or services –

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, must specify the cash price for the goods or services in the representation.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

22.   Bait advertising

(1)  A person shall not, in trade or commerce, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which the person is aware or ought reasonably to be aware, 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 the nature of the market in which the person carries on business and the nature of the advertisement.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

(2)  A person who has, in trade or commerce, advertised goods or services for supply at a specified price shall offer those goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.

(3)  In a prosecution of a person in relation to a failure to offer goods or services to another person in accordance with subsection (2) , it is a defence if the person establishes that –

(a) the person offered to supply, or to procure someone else to supply goods or services of the kind advertised to that other person within a reasonable time, in a reasonable quantity and at the advertised price; or

(b) the person offered to supply immediately, or to procure someone else to supply, within a reasonable time, equivalent goods or services to that other person in a reasonable quantity and at the price at which the first-mentioned goods or services were advertised –

and, in either case, where the offer was accepted by that other person, the person has so supplied or procured someone else to supply, goods or services.

23.   Provision with respect to statements that include private box number

A person shall not publish or cause to be published a statement that –

(a) is intended or likely to promote the supply of goods or services; and

(b) includes a reference to a private box number –

unless there is also included in the statement the name and the address of the place of business or residence of the person by whom the private box number is rented or was obtained.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

24.   Accepting payment without intending or being able to supply as ordered

A person shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance –

(a) the person intends –

(i) not to supply the goods or services; or

(ii) to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted; or

(b) there are reasonable grounds, of which the person is aware or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

25.   Misleading statements about certain business activities

(1)  A person shall not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that the 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.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

(2)  Where a person, in trade or commerce, invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring –

(a) the performance by the other persons concerned of work; or

(b) the investment of money by the other persons concerned and the performance by them of work associated with the investment –

the person shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

26.   Harassment and coercion

A person shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

26A.   Referral selling

[Section 26A Inserted by No. 53 of 1994, s. 4 ]A person, in trade or commerce, must not induce another person to acquire goods or services by representing that the other person may receive a rebate, commission or other benefit after the contract for the acquisition of the goods or services is made in return for giving the first-mentioned person the names of any prospective customers or assisting that person to supply goods or services to any other persons, if receipt of that rebate, commission or other benefit is contingent on an event occurring after that contract is made.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 200 penalty units.

26B.   Pyramid selling schemes

[Section 26B Inserted by No. 53 of 1994, s. 4 ]

(1)  A promoter of, or participant in, a trading scheme must not receive, or benefit from, a payment made by a person who is or intends to be a participant in the trading scheme if the person was induced to make the payment because the prospect was held out to that person of receiving payments or other benefits in respect of the introduction of other persons who become participants in the scheme.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 200 penalty units.

(2)  A promoter of, or participant in, a trading scheme, by holding out to a person the prospect of receiving payments or other benefits in respect of the introduction of other persons who become participants in the scheme, must not induce or attempt to induce that person –

(a) to make a payment to, or for the benefit of, any promoter of, or participant in, the scheme, if that person is a participant in the scheme; or

(b) to become a participant and to make a payment to, or for the benefit of, any promoter of, or participant in, the scheme, if that person is not a participant in the scheme.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 200 penalty units.

(3)  A person must not promote, or take part in the promotion of, a trading scheme under which –

(a) a payment is made by a participant, or by a person who has applied or been invited to participate, in the scheme, to or for the benefit of a promoter of, or participant in, the scheme; and

(b) the person making the payment was induced to do so by the prospect of receiving payments from other persons who may participate in the scheme.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 200 penalty units.

(4)  For the purposes of this section –

(a) a payment is made to, or for the benefit of, a person even if the payment is made partly to or for the benefit of that person and partly to or for the benefit of another person; and

(b) a person is induced by a prospect if the prospect forms a substantial part of the inducement; and

(c) a prospect is taken to be held out to a person whether or not it is held out so as to confer on the person a legally enforceable right.

(5)  [Section 26B Subsection (5) amended by No. 7 of 2004, Sched. 1, Applied:01 Aug 2004] In this section, trading scheme means a scheme by which goods or services are provided–

(a) by a promoter of the scheme; and

(b) under transactions made by participants in the scheme, not all of whom are promoters of the scheme.

27.   Unsolicited credit cards

(1)  A person shall not send a prescribed card to another person except –

(a) in pursuance of a request in writing by the person who will be under a liability to the person who issued the card in respect of the use of the card; or

(b) where there already exists a credit account or trading account relationship between that person and the other person; or

(c) in renewal or replacement of, or in substitution for –

(i) a prescribed card of the same kind previously sent to that other person in pursuance of a request in writing by the person who was under a liability to the person who issued the card previously so sent in respect of the use of that card; or

(ii) a prescribed card of the same kind previously sent to that other person and used for a purpose for which it was intended to be used.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

(2)  Subsection (1) applies only in relation to the sending of a prescribed card by or on behalf of the person who issued the card.

(3)  A person shall not take any action that enables another person who has a prescribed card to use the card as a credit card or a debit card, as the case may be, except in accordance with a request in writing by that other person.

Penalty:  Fine not exceeding 200 penalty units in the case of a person other than a corporation or 1 000 penalty units in the case of a corporation.

(4)  In this section –

article includes a token, card or document;

credit card means any article of a kind commonly known as a credit card or any similar article intended for use in obtaining cash, goods or services on credit, and includes any article of a kind commonly issued by persons carrying on business to customers or prospective customers of those persons for use in obtaining goods or services from those persons on credit;

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

prescribed card means a credit card, a debit card or an article that may be used as a credit card and a debit card.

28.   Prescribed information providers

(1)  Nothing in section 14 , 16 , 17 , 20 , 21 , or 25 applies to a prescribed publication of matter by a prescribed information provider, other than –

(a) a publication of matter in connection with –

(i) the supply or possible supply of goods or services; or

(ii) the sale or grant, or possible sale or grant, of interests in land; or

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

(iv) the promotion by any means of the sale or grant of interests in land –

where –

(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or

(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with –

(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or

(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or

(b) a publication of an advertisement.

(2)  For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if –

(a) in any case, the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or

(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a) , (b) , or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition), the publication was by way of a radio or television broadcast by the prescribed information provider.

(3)  In this section –

consortium has the same meaning as that expression has in Part IIIB of the Broadcasting and Television Act 1942 of the Commonwealth;

prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes –

(a) [Section 28 Subsection (3) amended by No. 17 of 1996, Applied:24 Jan 2002] a person to whom, or each of the members of a consortium to which, a licence has been granted under Part IIIB of the Broadcasting and Television Act 1942 ; and

(b) the Australian Broadcasting Corporation; and

(c) the Special Broadcasting Service;

[Section 28 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is, by virtue of section 50 of the Corporations Act, related to the prescribed information provider;

[Section 28 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is, by virtue of section 50 of the Corporations Act, related to the prescribed information provider.

PART 3 - Enforcement and Remedies

Division 1 - Preliminary

29.   Interpretation

A reference in this Part to a person involved in a contravention of a provision of this Act shall be read as a reference to a person who has –

(a) aided, abetted, counselled, or procured the contravention; or

(b) induced, whether by threats or promises or otherwise, the contravention; or

(c) been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d) conspired with others to effect the contravention.

Division 2 - Powers of authorized officers

30.   Powers of authorized officers to enter premises, &c.

(1)  For the purposes of this Act or a related Act, an authorized officer may, at all reasonable times and subject to subsection (2) do any or all of the following:

(a) enter any place where the authorized officer knows or reasonably believes that a person is engaging or has engaged in conduct that constitutes, or may constitute, a contravention of this Act;

(b) in any place lawfully entered –

(i) search for, examine, take possession of or make copies of or extracts from invoices, documents or other records relating to goods or services supplied or to be supplied;

(ii) search for goods and examine goods;

(iii) open any package that the authorized officer knows or reasonably suspects to contain goods;

(iv) question with respect to matters with which this Act is concerned any person employed in that place;

(c) make such inquiries as the authorized officer believes to be necessary or desirable in relation to the exercise of his powers under this Act.

(2)  An authorized officer shall not enter any place unless the authorized officer –

(a) has the permission of the proprietor or manager of that place; or

(b) has first obtained a warrant under subsection (3) .

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 9 months, or both.

(3)  A magistrate who is satisfied by evidence on oath upon the complaint of an authorized officer that there is reasonable cause to permit entry to any place referred to in subsection (1) for the purposes specified in that subsection may issue a warrant directed to the authorized officer to enter the place specified in the warrant for the purpose of exercising in that place the powers conferred on the authorized officer by this Act.

(4)  A warrant issued under this section shall, for a period of 7 days from its issue, be sufficient authority –

(a) to the authorized officer to whom it is directed and to all persons acting in aid of the authorized officer to enter the place specified in the warrant; and

(b) to the authorized officer to whom it is directed to exercise in respect of the place specified in the warrant all the powers conferred on an authorized officer by this Act.

(5)  Where, pursuant to subsection (1) (b) , an authorized officer has taken possession of any invoice, document or other record, the authorized officer –

(a) shall sign for any invoice, document or other record so taken; and

(b) shall return the invoice, document or other record immediately it is no longer required for any proceedings under this Act.

(6)  Any person otherwise entitled to possession of an invoice, document, or other record retained by an authorized officer under subsection (5) is, if the person so requests it of the authorized officer, entitled to be furnished as soon as practicable with a copy of that invoice, document, or other record certified by the Director to be a true copy and that certified copy shall be received in all courts and elsewhere as evidence of the matters contained in that copy as if it were the original.

31.   Powers of authorized officers to require delivery of documents

(1)  Where an authorized officer has reason to believe that a person possesses any invoice, record or other document, which is relevant to a matter under this Act, the authorized officer may require that person to deliver that invoice, record or other document, or a copy of that invoice, record or other document, as directed.

(2)  A requisition under subsection (1) may specify that the document or copy to which it relates is to be delivered –

(a) at a place specified in the requisition; and

(b) to the Director or any authorized officer; and

(c) at, by, or within a time so specified; and

(d) in person, by certified mail, or in any other prescribed manner.

32.   Obstruction, &c., of authorized officer

(1)  A person shall not –

(a) assault, resist, impede or obstruct an authorized officer in the exercise of any powers under section 30 or 31 or attempt so to do; or

(b) use threatening, abusive or insulting language to an authorized officer engaged in the exercise of any powers under section 30 or 31 or to any person assisting an authorized officer who is so engaged; or

(c) fail to comply with a lawful request, direction or requisition of an authorized officer; or

(d) fail to produce to an authorized officer any invoice, document or record relevant to the provisions of this Act in the possession or at the disposal of that person when required to do so by that officer; or

(e) impersonate an authorized officer.

Penalty:  Fine not exceeding 10 penalty units.

(2)  Where a person is convicted of an offence against subsection (1) (c) , or (d) , the court may order that person to –

(a) comply with the lawful request, direction or requisition; or

(b) produce to an authorized officer the invoice, document or record –

which was the subject of the offence, as the case may require.

Division 3 - General provisions with respect to enforcement and remedies

33.   Provisions relating to offences

(1)  If an act or omission is both an offence against this Act and an offence under a law of the Commonwealth or a law in force elsewhere in Australia, a person convicted of an offence under that law is not liable to be convicted of the offence against this Act.

(2)  Where a person is convicted of 2 or more offences constituted by, or relating to, contraventions of the same provision of this Act, being contraventions that appear to the sentencing court to have been of the same nature or a substantially similar nature and to have occurred at or about the same time (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), the court shall not, in respect of the first-mentioned 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.

(3)  Where –

(a) a person is convicted of an offence constituted by, or relating to, a contravention of a provision of this Act; and

(b) a fine has, or fines have, previously been imposed on the person by the sentencing court for an offence or offences constituted by, or relating to, another contravention or other contraventions of the same provision, being a contravention that, or contraventions each of which, appears to the court to have been of the same nature as, or of a substantially similar nature to, and to have occurred at or about the same time as, the first-mentioned contravention (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) –

the court shall 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, first referred to in paragraph (b) .

34.   Injunctions

(1)  Where, on the application of the Minister, the Director, or any other person, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute –

(a) a contravention of a provision of this Act or a related Act; 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 –

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(2)  Without prejudice to the generality of subsection (1) , an injunction granted under that subsection 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.

(3)  Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1) .

(4)  Where, in the opinion of the Supreme Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1) .

(5)  The Supreme Court may rescind or vary an injunction granted under subsection (1) , (3) or (4) .

(6)  Where the Minister or the Director makes an application to the Supreme Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

(7)  Where –

(a) in a case to which subsection (6) does not apply, the Supreme Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and

(b) the Minister gives the undertaking –

the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.

35.   Other injunctions

(1)  If, on the application of the Director, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes, or would constitute –

(a) a contravention of a provision of an order of a magistrate under section 45 ; 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 or 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 –

the Court may grant an injunction in such terms as the Court determines to be appropriate.

(2)  An injunction under subsection (1) may be granted as an interim injunction without an undertaking being required as to damages or costs or may be granted as a permanent injunction.

36.   Order to disclose information or publish advertisement

Without limiting the generality of section 34 , where, on the application of the Minister or the Director, the Supreme Court is satisfied that a person has engaged in conduct constituting a contravention of a provision of this Act, other than section 15 , the Court may make either or both of the following orders:

(a) an order requiring that person or a person involved in the contravention to disclose to the public, to a particular person or to persons included in a particular class of persons, in such manner as is specified in the order, such information, or information of such a kind, as is so specified, being information that is in the possession of the person to whom the order is directed or to which that last-mentioned person has access;

(b) an order requiring that person or a person involved in the contravention to publish, at his own expense, in a manner and at times specified in the order, advertisements the terms of which are specified in, or are to be determined in accordance with, the order.

37.   Actions for damages

[Section 37 Substituted by No. 41 of 2003, s. 10, Applied:04 Jul 2003]

(1)  A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of this Act may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

(2)  A reference to loss or damage in subsection (1) does not, if the loss or damage arises from a contravention of Part 2 ( section 15 excepted), include a reference to –

(a) the death of a person; or

(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).

38.   Finding in proceedings to be evidence

In a proceeding against a person under section 37 or in an application under section 41 (2) for an order against a person, a finding of any fact by a court made in proceedings under section 34 , 35 , or 36 , or for an offence against this Act, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of this Act is evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.

39.   Conduct by directors, servants or agents

(1)  Where, in a proceeding under this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind.

(2)  Any conduct engaged in on behalf of a body corporate –

(a) by a director, servant, or agent of the body corporate within the scope of the person's actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent –

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

(3)  Where, in a proceeding under this Act in respect of conduct engaged in by a person other than a body corporate it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of the servant's or agent's actual or apparent authority, had that state of mind.

(4)  Conduct engaged in on behalf of a person other than a body corporate –

(a) by a servant or agent of the person within the scope of the actual or apparent authority of the servant or agent; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the first-mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent –

shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.

(5)  A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the person's intention, opinion, belief, or purpose.

40.   Defences

(1)  Subject to subsection (3) , in a prosecution under this Act in relation to a contravention of a provision of this Act, it is a defence if the defendant establishes –

(a) that the contravention in respect of which the proceeding was instituted was due to reasonable mistake; or

(b) that the contravention in respect of which the proceeding was instituted was due to reasonable reliance on information supplied by another person; or

(c) that –

(i) the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control; and

(ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

(2)  In subsection (1) (b) and (c) , another person does not include a person who was –

(a) a servant or agent of the defendant; or

(b) in the case of a defendant being a body corporate, a director, servant or agent of the defendant –

at the time when the contravention occurred.

(3)  If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leave of the court, entitled to rely on that defence unless he has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing giving such information that would identify or assist in the identification of the other person as was then in the defendant's possession.

(4)  In a proceeding under this Act in relation to a contravention of a provision of this Act committed by the publication of an advertisement, it is a defence to establish that the defendant is a person whose business it is to publish or arrange for the publication of advertisements and that the defendant received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Act.

41.   Other orders

(1)  Without limiting the generality of section 34 , where, in a proceeding instituted under, or for an offence against, this Act, the court having jurisdiction in the relevant proceeding finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person who was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of this Act, the court may, whether or not it grants an injunction under section 34 or makes an order under section 36 or 37 , make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5) ) if the court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.

(1A)  [Section 41 Subsection (1A) inserted by No. 41 of 2003, s. 10, Applied:04 Jul 2003] A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 2 ( section 15 excepted), include a reference to –

(a) the death of a person; or

(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).

(2)  Without limiting the generality of section 34 , the court having jurisdiction in the relevant proceeding may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person who was engaged in (whether before or after the commencement of this Act) in contravention of a provision of this Act or on the application of the Director in accordance with subsection (4) on behalf of such a person or 2 or more such persons, 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 (including all or any of the orders mentioned in subsection (5) ) if the court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.

(3)  An application may be made under subsection (2) in relation to a contravention of this Act even if a proceeding has not been instituted under another provision of this Part in relation to the contravention.

(4)  Where, in a proceeding instituted for an offence against this Act, a person is found to have engaged in conduct in contravention of a provision of this Act, the Director may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Director shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.

(5)  The orders referred to in subsections (1) and (2) are as follows:

(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 having jurisdiction in the relevant proceeding 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 that 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;

(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 his own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage;

(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at his own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage;

(h) 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.

(6)  For the purpose of determining whether to make an order under this section in relation to a contravention of section 15 , the court having jurisdiction in the relevant proceeding may have regard to the conduct of the parties to the proceeding since the contravention occurred.

(7)  The powers conferred on a court having jurisdiction in the relevant proceeding 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.

42.   Power of Supreme Court, &c., to prohibit payment or transfer of moneys or other property

(1)  Where –

(a) proceedings have been commenced in a court of summary jurisdiction against a person for an offence against this Act; or

(b) an application has been made under section 34 or 35 for an injunction against a person in relation to a contravention of a provision of this Act; or

(c) an action has been commenced under section 37 against a person in relation to a contravention of a provision of this Act; or

(d) an application for an order under section 41 (2) or (4) has been or may be made against a person in relation to a contravention of a provision of this Act –

the court having jurisdiction in the proceeding may, on the application of the Minister or the Director, make an order or orders mentioned in subsection (2) if the court is satisfied that –

(e) it is necessary or desirable to do so for the purpose of preserving money or other property held by or on behalf of a person referred to in paragraph (a) , (b) , (c) , or (d) , as the case may be (in this section referred to as the "relevant person"), where the relevant person is liable or may become liable under this Act to pay money by way of a fine, damages, compensation, refund or otherwise or to transfer, sell or refund other property; and

(f) it will not unduly prejudice the rights and interests of any other person.

(2)  The orders referred to in subsection (1) are as follows:

(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;

(b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the relevant person or on behalf of an associate of the relevant person from paying all or any of the money, or transferring, or otherwise parting with possession of, the other property, to, or to another person at the direction or request of, the person on whose behalf the money or other property is held;

(c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the relevant person or of an associate of the relevant person to a place outside the State;

(d) [Section 42 Subsection (2) amended by No. 17 of 1996, Applied:24 Jan 2002] an order prohibiting, either absolutely or subject to conditions, the taking, sending, or transfer by any person of other property of the relevant person or of an associate of the relevant person to a place outside this State;

(e) an order appointing, where the relevant person is a natural person, a receiver or trustee of the property or of part of the property of the relevant person with such powers as are specified in the order.

(3)  Subject to subsection (4) , an order under this section may be expressed to operate –

(a) for a period specified in the order; or

(b) until proceedings under any other provision of this Part in relation to which the order was made have been concluded.

(4)  An order under this section made in the absence of the person against whom the order is sought shall not operate for a period exceeding 30 days.

(5)  A person who contravenes or fails to comply with an order by a court under this section that is applicable to the person is guilty of an offence and is liable on summary conviction to a fine not exceeding –

(a) in the case of a person other than a body corporate, 200 penalty units; or

(b) in the case of a body corporate, 1 000 penalty units.

(6)  Nothing in this section affects the powers that the court has apart from this section.

(7)  A reference in this section to a person who is an associate of a relevant person is a reference to –

(a) a person holding money or other property on behalf of the relevant person; or

(b) if the relevant person is a body corporate – a wholly owned subsidiary of the relevant person.

PART 4 - Codes of Practice

43.   Codes of Practice

(1)  Subject to subsections (4) and (5) , the Governor, on the recommendation of the Minister, may make regulations prescribing a code of practice where the Minister considers it to be in the public interest to do so and a request is made to the Minister –

(a) by any person who has an interest in any appropriate field of trade or commerce; or

(b) by the Consumer Affairs Council.

(2)  [Section 43 Subsection (2) amended by No. 17 of 1996, Applied:24 Jan 2002] Before a code of practice is prescribed under subsection (1) , the Minister shall invite the Tasmanian Chamber of Commerce & Industry in consultation with other appropriate bodies or organizations to prepare a draft code of practice.

(3)  Where a draft code of practice is prepared pursuant to subsection (2) , the Minister shall arrange for consultation with, and invite submissions from the public and any other person, body or organization who the Minister believes would have an interest in the terms of the proposed draft code of practice.

(4)  The Minister shall not recommend that the Governor makes any regulations under this section unless a draft code of practice is prepared pursuant to subsection (2) .

(5)  A code of practice shall be endorsed by a resolution of both Houses of Parliament before it may be prescribed as a code of practice under subsection (1) .

44.   Amendments to codes of practice

(1)  Where it is proposed to amend a prescribed code of practice, the Minister shall invite comments on the proposed amendment from –

(a) [Section 44 Subsection (1) amended by No. 17 of 1996, Applied:24 Jan 2002] the Tasmanian Chamber of Commerce & Industry; and

(b) [Section 44 Subsection (1) amended by No. 17 of 1996, Applied:24 Jan 2002] .  .  .  .  .  .  .  .  

(c) the Consumer Affairs Council; and

(d) any other appropriate body or organization.

(2)  A proposed amendment to a prescribed code of practice shall be laid before each House of Parliament and may be disallowed on a resolution passed by either House within 15 sitting days of the House after the proposed amendment is laid before it.

(3)  Where a proposed amendment to a prescribed code of practice is not disallowed under subsection (2) , the Minister may recommend that regulations be made under section 54 to amend a prescribed code of practice.

45.   Contravention of prescribed code of practice

(1)  Where it appears to the Director that a person has contravened any provision of a prescribed code of practice, the Director may apply to a magistrate for an order under this section.

(2)  Where a magistrate is satisfied that a person has contravened a provision of a prescribed code of practice, the magistrate may order the person –

(a) to cease contravening that provision; and

(b) to rectify any consequence of such a failure or contravention.

(3)  Where the contravention is by a body corporate and the magistrate is satisfied that it occurred with the consent or connivance of a person who, at the time of such contravention, was a director of the body corporate or a person concerned in its management, the magistrate 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 the management of which the person is concerned.

(4)  An order under this section may be made for such period and subject to such conditions as the magistrate thinks fit, including –

(a) the future conduct of the person; and

(b) any action to be taken to rectify the consequences of the contravention which is the subject of the order.

PART 5 - General

Division 1 - Evidence

46.   Evidence as to publication

(1)  In any proceedings under this Act –

(a) where a published statement is intended, or apparently intended, to promote the supply or use of any goods or services, or the sale or grant of an interest in land; and

(b) a name, business name, address, telephone number, post office box number, facsimile number, telex number or newspaper office reply number specified in the statement is that of a person, or the agent of a person, who –

(i) is the owner, whether alone or jointly with another person or other persons, of the goods or interest in land; or

(ii) is the supplier of the goods or services; or

(iii) has an interest, otherwise than as owner, in the goods; or

(iv) has an interest, otherwise than as supplier, in the supply of the services –

it shall be presumed, unless the contrary is established, that the person or agent, as the case may be, caused the statement to be published.

(2)  For the purposes of subsection (1) , a person who causes a statement to be published shall be deemed to have done so on each day on which the statement is published.

47.   Evidence of standards, &c.

In any proceedings under this Act, a printed document that purports –

(a) to be a regulation, standard, rule, code, recommendation, specification, method or drawing of any authority or body prescribed under section 54 (2) ; and

(b) to have been prescribed, published, or issued by or on behalf of that authority or body –

is evidence of that regulation, standard, rule, code, recommendation, specification, method or drawing.

48.   Evidentiary provisions as to certain matters

(1)  A document purporting to be a certificate by the Director and stating that a person specified in the certificate is an authorized officer is admissible in evidence in any legal proceedings and is evidence of the matter stated in the certificate.

(2)  In any proceedings an apparently genuine copy of any book or document taken by an authorized officer pursuant to this Act, certified by the Director, to be a true copy of the original is evidence of the existence of the original and of its contents.

Division 2 - Miscellaneous

49.   Service of documents, &c.

(1)  Where under this Act a document or a notice is required to be served on a person, the document or notice may be served –

(a) in the case of a person who is neither a body corporate nor a firm –

(i) [Section 49 Subsection (1) amended by No. 17 of 1996, Applied:24 Jan 2002] by delivering it to that person personally; or

(ii) by leaving it at that person's place of residence last known to the person required to serve the document or notice with someone who apparently resides there, or at that person's place of business or employment last known to the person required to serve the document or notice with someone who is apparently employed there, being in either case a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to that person's place of residence, business, or employment last known to the person required to serve the document or notice; or

(b) in the case of a body corporate –

(i) by delivering it to the secretary of the body corporate personally; or

(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in this State with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to the registered office of the body corporate or to the place or principal place of business of the body corporate; or

(c) in the case of a firm –

(i) by delivering it to a member of the firm personally; or

(ii) by leaving it at the place or principal place of business of the firm in this State last known to the person required to serve the document or notice with a person apparently employed there, being a person who has or apparently has attained the age of 16 years; or

(iii) by sending it by post to the place or principal place of business of the firm in this State last known to the person required to serve the document or notice.

(2)  A reference in subsection (1) to the registered office of a body corporate includes a reference to a registered office that is outside this State.

(3)  [Section 49 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] The provisions of this section are in addition to the provisions of sections 109X and 601CX of the Corporations Act.

50.   Saving of rights and remedies

Except to the extent that this Act otherwise expressly provides, this Act does not limit, restrict, or otherwise affect any right or remedy a person would have had if this Act had not been enacted.

51.   Contracting out prohibited

This Act has effect notwithstanding any stipulation in any contract or agreement to the contrary.

52.   Protection for Director, &c.

(1)  Subject to subsection (2) , any matter or thing done or omitted to be done in good faith by the Director, any other authorized officer, or any other person in the administration or execution, or purported administration or execution, of this Act shall not subject any of those persons personally to any action, liability, claim or demand.

(2)  Subsection (1) does not preclude the Crown from being subject to any action, liability, claim or demand to which the Crown would, but for that subsection, have been subject.

53.   Expenses of Act

(1)  All expenses incurred in the administration of this Act shall be paid out of money to be provided by Parliament for the purpose.

(2)  All penalties received under this Act shall be paid into the Consolidated Fund.

54.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

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

(a) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations; and

(b) adopt, either wholly or in part, and either specifically or by reference and with or without modification, any of the regulations, standards, rules, codes, recommendations, specifications, methods or drawings prescribed, published or issued by any national authority or national body specified in the regulations, whether the regulation, standard, rule, code, recommendation, specification, method or drawing is prescribed, published or issued before, on, or after the commencement day.

(3)  A reference in subsection (2) (b) to a regulation, standard, rule, code, recommendation, specification, method or drawing includes a reference to an addition to, or amendment of, that regulation, standard, rule, code, recommendation, specification, method or drawing, whether the addition or amendment is prescribed, published or issued before, on, or after the commencement day.

(4)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a penalty not exceeding 10 penalty units and, in the case of a continuing offence, a further penalty not exceeding 5 penalty units for each day during which the offence continues.

(5)  It is a defence in any proceedings in respect of a failure to comply with any regulations relating to a code of practice to establish that compliance was effected by means other than those specified in the code of practice.