Competition and Consumer Act 2010

Chapter 1—Introduction

1 Application of this Schedule

This Schedule applies to the extent provided by:

(a) Part XI of the Competition and Consumer Act; or

(b) an application law.

2 Definitions

(1) In this Schedule:

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

acceptable quality: see sections 54(2) to (7).

ACN has the meaning given by section 9 of the Corporations Act 2001.

acquire includes:

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

(b) in relation to services—accept.

Note: Section 5 deals with when receipt of a donation is an acquisition.

adjusted turnover, of a body corporate during a period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the period, other than:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or

(b) supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or

(e) supplies that are not connected with the indirect tax zone.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

adverse publicity order: see section 247(2).

affected person, in relation to goods, means:

(a) a consumer who acquires the goods; or

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

agreement document: see section 78(2).

applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.

application law has the same meaning as in section 140 of the Competition and Consumer Act.

article includes a token, card or document.

ASIC means the Australian Securities and Investments Commission.

assert a right to payment: see section 10(1).

associate regulator:

(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or

(b) for the purposes of the application of this Schedule as a law of a State or a Territory—means:

(i) the Commission; or

(ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.

authority, in relation to a State or a Territory (including an external Territory), means:

(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or

(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

authority of the Commonwealth means:

(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

banker has the same meaning as in section 4(1) of the Competition and Consumer Act.

ban period for an interim ban: see section 111(1).

breach turnover period, of a body corporate, for an offence or an act or omission, means the longer of the following periods:

(a) the period of 12 months ending at the end of the month in which:

(i) for an offence—the body corporate ceased committing the offence, or was charged with the offence (whichever is earlier); or

(ii) for an act or omission—the act or omission ceased, or proceedings in relation to the act or omission were instituted (whichever is earlier);

(b) the period ending at the same time as the period determined under paragraph (a) and starting:

(i) for an offence—at the beginning of the month in which the body corporate committed, or began committing, the offence (as the case requires); or

(ii) for an act or omission—at the beginning of the month in which the act or omission occurred or began occurring (as the case requires).

business includes a business not carried on for profit.

business day, in relation to an unsolicited consumer agreement, means a day that is not:

(a) a Saturday or Sunday; or

(b) a public holiday in the place where the agreement was made.

business or professional relationship includes a relationship between employer and employee, or a similar relationship.

call on, in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.

Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.

Commonwealth mandatory standard, in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.

Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.

Competition and Consumer Act means the Competition and Consumer Act 2010.

consumer: see section 3.

consumer contract: see section 23(3).

consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:

(a) a recall notice for the goods has been issued; or

(b) a person has voluntarily taken action to recall the goods.

continuing credit contract: see section 14(1).

contravening conduct: see section 239(1)(a)(i).

court, in relation to a matter, means any court having jurisdiction in the matter.

covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.

credit card: see section 39(5).

credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.

dealer: see section 71.

debit card: see section 39(6).

declared term: see sections 239(1)(a)(ii), 243A(1) and 243B(1).

defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.

disclosed purpose: see section 55(2).

displayed price: see sections 47(2) to (5).

document means any record of information, and includes:

(a) anything on which there is writing; and

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(d) a map, plan, drawing or photograph.

egg has the meaning given by subsection 137A(3).

enforcement proceeding means:

(a) a proceeding for an offence against Chapter 4; or

(b) a proceeding instituted under Chapter 5 (other than under sections 237, 239, 243A and 243B).

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

express warranty, in relation to goods, means an undertaking, assertion or representation:

(a) that relates to:

(i) the quality, state, condition, performance or characteristics of the goods; or

(ii) the provision of services that are or may at any time be required for the goods; or

(iii) the supply of parts that are or may at any time be required for the goods; or

(iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and

(b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and

financial product has the meaning given by section 12BAA of the Australian Securities and Investments Commission Act 2001.

financial service has the meaning given by section 12BAB of the Australian Securities and Investments Commission Act 2001.

free item includes a free service.

free range egg has the meaning given by subsection 137A(4).

gift card: see section 99A.

goods includes:

(a) ships, aircraft and other vehicles; and

(b) animals, including fish; and

(d) gas and electricity; and

(e) computer software; and

(f) second‑hand goods; and

(g) any component part of, or accessory to, goods.

grown: see section 255(7).

GST has the meaning given by section 195‑1 of the A New Tax System (Goods and Services Tax) Act 1999.

industry code has the meaning given by section 51ACA of the Competition and Consumer Act.

information provider: see sections 19(5) and (6).

information standard: see sections 134(1) and 135(1).

inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.

interest, in relation to land, means:

(a) a legal or equitable estate or interest in the land; or

(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or

interim ban: see sections 109(1) and (2).

involved: a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:

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

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

(d) has conspired with others to effect the contravention.

joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.

label includes a band or ticket.

lay‑by agreement: see section 96(3).

linked credit contract: see section 278(2).

linked credit provider, in relation to a supplier of goods or services, means a credit provider:

(a) with whom the supplier has a contract, arrangement or understanding relating to:

(i) the supply to the supplier of goods in which the supplier deals; or

(ii) the business carried on by the supplier of supplying goods or services; or

(iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or

(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or

(c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or

(d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.

loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways:

(a) by paying an amount to, or in accordance with the instructions of, the consumer;

(b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer;

(d) by deferring an obligation of the consumer to pay an amount to the person;

(e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.

major failure: see sections 260 and 268.

mandatory standard, in relation to goods, means a standard:

(a) for the goods or anything relating to the goods; and

(b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such non‑compliance;

but does not include a standard which may be complied with by meeting a higher standard.

manufacturer: see section 7.

market has the same meaning as in section 4E of the Competition and Consumer Act.

materials, in relation to goods, means:

(a) if the goods are unmanufactured raw products—those products; and

(b) if the goods are manufactured goods—all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and

mixed supply: see section 3(11).

National Credit Code has the meaning given by section 5(1) of the National Consumer Credit Protection Act 2009.

negotiated by telephone: see section 78(3).

negotiation: see section 72.

new participant: see section 45(2).

non‑linked credit contract: see section 287(5).

non‑party means:

(a) in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or

(b) in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.

participant, in a pyramid scheme, means a person who participates in the scheme.

participate, in a pyramid scheme: see section 44(3).

participation payment: see section 45(1)(a).

permanent ban: see sections 114(1) and (2).

post‑supply fee: see section 99D(2).

premises means:

(a) an area of land or any other place (whether or not it is enclosed or built on); or

(b) a building or other structure; or

(d) a part of any such premises.

price, of goods or services, means:

(a) the amount paid or payable (including any charge of any description) for their acquisition; or

(b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:

(i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or

(ii) if they could not reasonably have been acquired separately from another supplier—their value at the time of the transaction.

prior negotiations or arrangements, in relation to the acquisition of goods by a consumer, means negotiations or arrangements:

(a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and

(b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer.

product related service means a service for or relating to:

(a) the installation of consumer goods of a particular kind; or

(b) the maintenance, repair or cleaning of consumer goods of a particular kind; or

(d) the delivery of consumer goods of a particular kind;

and, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind.

proof of transaction: see section 100(4).

publish, in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form).

pyramid scheme: see section 45(1).

recall notice: see section 122(1).

recovery period: see section 41(4).

recruitment payment: see section 45(1)(b).

regulations means regulations made under section 139G of the Competition and Consumer Act.

regulator:

(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or

(b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory.

rejection period: see section 262(2).

related, in relation to a body corporate: see section 6.

related contract or instrument: see section 83(2).

rely on, in relation to a term of a consumer contract or small business contract, includes the following:

(a) attempt to enforce the term;

(b) attempt to exercise a right conferred, or purportedly conferred, by the term;

responsible Minister means:

(a) the Commonwealth Minister; or

(b) the Minister of a State who administers the application law of the State; or

safety defect, in relation to goods: see section 9.

safety standard: see sections 104(1) and 105(1).

sale by auction, in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means).

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

serious injury or illness means an acute physical injury or illness that requires medical or surgical treatment by, or under the supervision of, a medical practitioner or a nurse (whether or not in a hospital, clinic or similar place), but does not include:

(a) an ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b) the recurrence, or aggravation, of such an ailment, disorder, defect or morbid condition.

services includes:

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

(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

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

(iv) a contract of insurance; or

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

(vi) any contract for or in relation to the lending of money;

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

share includes stock.

ship has the meaning given by section 3(1) of the Admiralty Act 1988.

single price: see section 48(7).

small business contract: see subsection 23(4).

standard form contract has a meaning affected by section 27.

substantially transformed, in relation to goods: see section 255(2).

substantiation notice means a notice under section 219.

substantiation notice compliance period: see section 221(2).

supply, when used as a verb, includes:

(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b) in relation to services—provide, grant or confer;

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

Note: Section 5 deals with when a donation is a supply.

supply of limited title: see section 51(2).

telecommunications service: see section 65(2).

termination charge: see section 97(2).

termination period, in relation to an unsolicited consumer agreement, means the period within which the consumer under the agreement is, under section 82 or under the agreement, entitled to terminate the agreement.

tied continuing credit contract means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider.

tied loan contract means a loan contract entered into between a credit provider and a consumer where:

(a) the credit provider knows, or ought reasonably to know, that the consumer enters into the loan contract wholly or partly for the purposes of payment for goods or services supplied by a supplier; and

(b) at the time the loan contract is entered into the credit provider is a linked credit provider of the supplier.

trade or commerce means:

(a) trade or commerce within Australia; or

(b) trade or commerce between Australia and places outside Australia;

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

transparent:

(a) in relation to a document—means:

(i) expressed in reasonably plain language; and

(ii) legible; and

(iii) presented clearly; and

(b) in relation to a term of a consumer contract or small business contract—see section 24(3).

unfair, in relation to a term of a consumer contract or small business contract: see section 24(1).

unsolicited consumer agreement: see section 69.

unsolicited goods means goods sent to a person without any request made by the person or on his or her behalf.

unsolicited services means:

(a) services supplied to a person; or

(b) services purported to have been supplied to a person which have not been supplied;

without any request made by the person or on his or her behalf.

upfront price: see section 26(2).

warranty against defects: see section 102(3).

(2) In this Schedule:

(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including:

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

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

(iii) the requiring of the giving of, or the giving of, a covenant; and

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

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

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

(iii) the requiring of the giving of, or the giving of, a covenant; and

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

(ii) making it known that that act will not be done; and

(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

3 Meaning of consumer

Acquiring goods as a consumer

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

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

(i) $40,000; or

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

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

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

(a) for the following purpose:

(i) for goods other than gift cards—for the purpose of re‑supply;

(ii) for gift cards—for the purpose of re‑supply in trade or commerce; or

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

(i) in the course of a process of production or manufacture; or

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

Acquiring services as a consumer

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

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

(i) $40,000; or

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

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

Amounts paid or payable for purchases

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

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

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

(b) if:

(i) paragraph (a) does not apply; but

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

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

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

Amounts paid or payable for other acquisitions

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

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

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

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

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

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

Amounts paid or payable for obtaining credit

(9) If:

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

(b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit;

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

Presumption that persons are consumers

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

Mixed supplies

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

Supplies to consumers

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

4 Misleading representations with respect to future matters

(1) If:

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

(b) the person does not have reasonable grounds for making the representation;

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

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

(a) a party to the proceeding; or

(b) any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

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

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

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

(a) a misleading representation; or

(b) a representation that is misleading in a material particular; or

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

5 When donations are treated as supplies or acquisitions

(1) For the purposes of this Schedule, other than Parts 3‑3, 3‑4, 4‑3 and 4‑4:

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

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

(2) For the purposes of Parts 3‑3, 3‑4, 4‑3 and 4‑4:

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

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

6 Related bodies corporate

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

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

7 Meaning of manufacturer

(1) A manufacturer includes the following:

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

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

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

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

(i) the supply or possible supply of goods by that other person; or

(ii) the promotion by that other person by any means of the supply or use of goods;

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

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

(i) the person is not the manufacturer of the goods; and

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

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

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

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

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

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

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

8 Goods affixed to land or premises

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

9 Meaning of safety defect in relation to goods

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

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

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

(b) their packaging; and

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

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

(f) the time when they were supplied by their manufacturer.

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

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

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

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

10 Asserting a right to payment

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

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

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

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

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

(e) sends any invoice or other document that:

(i) states the amount of the payment; or

(ii) sets out the price of unsolicited goods or unsolicited services; or

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

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

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

11 References to acquisition, supply and re‑supply

In this Schedule:

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

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

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

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

(e) a reference to the re‑supply of goods acquired from a person includes a reference to:

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

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

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

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

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

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

In this Schedule:

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

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

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

13 Loss or damage to include injury

In this Schedule:

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

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

14 Meaning of continuing credit contract

(1) If:

(a) a person (the creditor), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to:

(i) payment for goods or services; or

(ii) cash supplied by the creditor to the consumer from time to time; or

(iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and

(b) the creditor:

(i) has an agreement, arrangement or understanding (the credit agreement) with the consumer in relation to the provision of the credit; or

(ii) is engaged in a course of dealing (the credit dealing) with the consumer in relation to the provision of the credit; and

(c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that:

(i) all amounts owing; and

(ii) all payments made;

by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing;

the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract.

(2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.

15 Contraventions of this Schedule

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

(a) section 23(1); or

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

16 Severability

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

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

17 References to provisions in this Schedule

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

Chapter 2—General protections

Part 2‑1—Misleading or deceptive conduct

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

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

19 Application of this Part to information providers

(1) This Part does not apply to a publication of matter by an information provider if:

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

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

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

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

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

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

(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.

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

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

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

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

(5) An information provider is a person who carries on a business of providing information.

(6) Without limiting subsection (5), each of the following is an information provider:

(a) the holder of a licence granted under the Broadcasting Services Act 1992;

(b) a person who is the provider of a broadcasting service under a class licence under that Act;

(d) the Australian Broadcasting Corporation;

(e) the Special Broadcasting Service Corporation.

Part 2‑2—Unconscionable conduct

20 Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

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

(2) This section does not apply to conduct that is prohibited by section 21.

21 Unconscionable conduct in connection with goods or services

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

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

(b) the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

(a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

(b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

(3) For the purpose of determining whether a person has contravened subsection (1):

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

(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

22 Matters the court may have regard to for the purposes of section 21

(1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:

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

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

(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and

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

(f) the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and

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

(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and

(i) the extent to which the supplier unreasonably failed to disclose to the customer:

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

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

(j) if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) the extent to which the supplier and the customer acted in good faith.

(2) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the acquirer) has contravened section 21 in connection with the acquisition or possible acquisition of goods or services from a person (the supplier), the court may have regard to:

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

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

(c) whether the supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the supplier or a person acting on behalf of the supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and

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

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

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

(h) the requirements of any other industry code, if the supplier acted on the reasonable belief that the acquirer would comply with that code; and

(i) the extent to which the acquirer unreasonably failed to disclose to the supplier:

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

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

(j) if there is a contract between the acquirer and the supplier for the acquisition of the goods or services:

(i) the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the supplier; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the acquirer and the supplier in complying with the terms and conditions of the contract; and

(iv) any conduct that the acquirer or the supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) without limiting paragraph (j), whether the acquirer has a contractual right to vary unilaterally a term or condition of a contract between the acquirer and the supplier for the acquisition of the goods or services; and

(l) the extent to which the acquirer and the supplier acted in good faith.

22A Presumptions relating to whether representations are misleading

Section 4 applies for the purposes of sections 21 and 22 in the same way as it applies for the purposes of Division 1 of Part 3‑1.

Part 2‑3—Unfair contract terms

23 Unfair terms of consumer contracts and small business contracts

(1) A term of a consumer contract or small business contract is void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of operating without the unfair term.

(2A) A person contravenes this subsection if:

(a) the person makes a contract; and

(b) the contract is a consumer contract or small business contract; and

(d) a term of the contract is unfair; and

(e) the person proposed the unfair term.

Note: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.

(2B) A person who contravenes subsection (2A) commits a separate contravention of that subsection in respect of each term that is unfair and that the person proposed.

(2C) A person contravenes this subsection if:

(a) the person applies or relies on, or purports to apply or rely on, a term of a contract; and

(b) the contract is a consumer contract or small business contract; and

(d) the term is unfair.

Note: A pecuniary penalty may be imposed for a contravention of this subsection: see section 224.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

(4) A contract is a small business contract if:

(a) the contract is for a supply of goods or services, or a sale or grant of an interest in land; and

(b) at least one party to the contract satisfies either or both of the following conditions:

(i) the party makes the contract in the course of carrying on a business and at a time when the party employs fewer than 100 persons;

(ii) the party’s turnover, worked out under subsection (6) for the party’s last income year (within the meaning of the Income Tax Assessment Act 1997) that ended at or before the time when the contract is made, is less than $10,000,000.

(5) In counting for the purposes of subparagraph (4)(b)(i) the number of persons that a person employs:

(a) a casual employee is not to be counted unless employed on a regular and systematic basis; and

(b) a part‑time employee (including a part‑time casual employee counted under paragraph (a) of this subsection) is to be counted as an appropriate fraction of a full‑time equivalent.

(6) For the purposes of subparagraph (4)(b)(ii), a party’s turnover for a period is the sum of the values of all supplies the party made during the period, other than the following:

(a) supplies that are input taxed;

(b) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999);

(d) supplies that are not connected with the indirect tax zone.

(7) Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

24 Meaning of unfair

(1) A term of a consumer contract or small business contract is unfair if:

(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(2) In determining whether a term of a contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

25 Examples of unfair terms

Without limiting section 24, the following are examples of the kinds of terms of a consumer contract or small business contract that may be unfair:

(a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

(b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

(c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

(d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

(e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

(f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

(g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;

(h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

(i) a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;

(j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;

(k) a term that limits, or has the effect of limiting, one party’s right to sue another party;

(l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

(m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

(n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

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

(1) Section 23 does not apply to a term of a contract to the extent, but only to the extent, that:

(a) the term defines the main subject matter of the contract; or

(b) the term sets the upfront price payable under the contract; or

(d) the term is included in the contract, or is taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract; or

(e) inclusion of the term has either or both of the following results:

(i) one or more other terms are included in the contract, or are taken to be so included, by operation of a law of the Commonwealth, or of a State or Territory, that regulates the contract;

(ii) such a law requires one or more other terms to be included in the contract.

Example: A State law provides that, if a retail lease contains a provision for termination on the ground of proposed demolition of the building containing the leased premises, then provisions set out in the State law are taken to be included in the lease.

Paragraph (d) covers the provisions that are set out in the State law and taken to be included in the lease. Paragraph (e) covers inclusion of the provision for termination, since it has the result that the provisions set out in the State law are taken to be included in the lease.

(2) The upfront price payable under a contract is the consideration that:

(a) is provided, or is to be provided, for the supply, sale or grant under the contract; and

(b) is disclosed at or before the time the contract is entered into;

but does not include any other consideration that is contingent on the occurrence or non‑occurrence of a particular event.

27 Standard form contracts

(1) If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise.

(2) In determining whether a contract is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) whether one of the parties has all or most of the bargaining power relating to the transaction;

(ba) whether one of the parties has made another contract, in the same or substantially similar terms, prepared by that party, and, if so, how many such contracts that party has made;

(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;

(c) whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;

(d) whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in section 26(1);

(e) whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the specific characteristics of another party or the particular transaction;

(f) any other matter prescribed by the regulations.

(3) A contract may be determined to be a standard form contract despite the existence of one or more of the following:

(a) an opportunity for a party to negotiate changes, to terms of the contract, that are minor or insubstantial in effect;

(b) an opportunity for a party to select a term from a range of options determined by another party;

(c) an opportunity for a party to another contract or proposed contract to negotiate terms of the other contract or proposed contract.

28 Contracts to which this Part does not apply

(1) This Part does not apply to:

(a) a contract of marine salvage or towage; or

(b) a charterparty of a ship; or

(2) Without limiting subsection (1)(c), the reference in that subsection to a contract for the carriage of goods by ship includes a reference to any contract covered by a sea carriage document within the meaning of the amended Hague Rules referred to in section 7(1) of the Carriage of Goods by Sea Act 1991.

(3) This Part does not apply to a contract that is the constitution (within the meaning of section 9 of the Corporations Act 2001) of a company, managed investment scheme or other kind of body.

(4) This Part does not apply to a small business contract to which a prescribed law of the Commonwealth, a State or a Territory applies.

(5) This Part does not apply to a contract:

(a) that establishes, contains or incorporates rules governing the operation of a payment or settlement system approved under section 9 of the Payment Systems and Netting Act 1998; or

(b) that is made in the course of, or for the purposes of, operating such a system.

28A This Part does not apply to certain contracts connected with financial markets

(1) This Part does not apply to a contract:

(a) that exists because of:

(i) section 793B of the Corporations Act 2001 (legal effect of operating rules of a licensed market); or

(ii) section 822B of that Act (legal effect of operating rules of a licensed CS facility); or

(b) that is made under, or in accordance with:

(i) the operating rules of a licensed market; or

(ii) the operating rules of a licensed CS facility.

Note: A licensed CS facility is a clearing and settlement facility whose operation is authorised by an Australian CS facility licence.

(2) This Part does not apply to a contract between:

(a) the operator of a licensed market; and

(b) any of the following:

(i) an entity included in the market’s official list;

(ii) the responsible entity for a registered scheme that is so included;

(iii) the operator of a foreign passport fund that is so included;

to the extent that the contract consists of, or includes, listing rules of the licensed market.

(3) An expression has in paragraph (1)(b) and subsection (2) the same meaning as in the Corporations Act 2001.

Chapter 3—Specific protections

Part 3‑1—Unfair practices

Division 1—False or misleading representations etc.

29 False or misleading representations about goods or services

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

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

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

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

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

(f) make a false or misleading representation concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a testimonial;

relating to goods or services; or

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) To avoid doubt, subsection (2) does not:

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

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

30 False or misleading representations about sale etc. of land

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

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

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

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

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

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

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

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

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

31 Misleading conduct relating to employment

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

(a) the availability, nature, terms or conditions of the employment; or

(b) any other matter relating to the employment.

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

32 Offering rebates, gifts, prizes etc.

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

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

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

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

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

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

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

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

(d) the promotion by any means of the sale or grant of an interest in land;

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

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

(3) Subsection (2) does not apply if:

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

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

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

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

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

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

33 Misleading conduct as to the nature etc. of goods

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

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

34 Misleading conduct as to the nature etc. of services

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

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

35 Bait advertising

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

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

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

(ii) the nature of the advertisement; and

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

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

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

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

(b) the nature of the advertisement.

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

36 Wrongly accepting payment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(5) Subsection (4) does not apply if:

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

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

(6) Subsection (4) does not apply if:

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

(b) the customer agrees to receive the different goods or services.

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

37 Misleading representations about certain business activities

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

(a) is false or misleading in a material particular; and

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

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

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

(a) is false or misleading in a material particular; and

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

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

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

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

38 Application of provisions of this Division to information providers

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

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

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

Division 2—Unsolicited supplies

39 Unsolicited cards etc.

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

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

(b) in renewal or replacement of, or in substitution for:

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) A debit card is:

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

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

40 Assertion of right to payment for unsolicited goods or services

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

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

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

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

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

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

(b) does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person has reasonable cause to believe that there is a right to the payment or charge.

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

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

41 Liability etc. of recipient for unsolicited goods

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

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

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

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

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

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

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

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

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

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

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

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

(b) if the person who receives the unsolicited goods gives notice with respect to the goods to the supplier or sender in accordance with subsection (5)—the period of one month starting on the day after the day on which the notice is given.

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

(a) must be in writing; and

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

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

42 Liability of recipient for unsolicited services

If a person, in trade or commerce, supplies, or purports to supply but does not supply, unsolicited services to another person, the other person:

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

(b) is not liable for loss or damage as a result of the supply or purported supply of the services.

43 Assertion of right to payment for unauthorised entries or advertisements

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

(a) the other person; or

(b) the other person’s profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

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

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

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

(i) the other person; or

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

(b) does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

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

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

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

(b) a body corporate related to such a publisher; or

(d) a person specified in the regulations.

(4) A person:

(a) is not liable to make any payment to another person; and

(b) is entitled to recover by action in a court against another person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication, an entry or advertisement, unless the person authorised the placing of the entry or advertisement.

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

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

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

(i) the name and address of the person publishing the entry or advertisement; and

(ii) particulars of the entry or advertisement; and

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

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

Division 3—Pyramid schemes

44 Participation in pyramid schemes

(1) A person must not participate in a pyramid scheme.

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

(2) A person must not induce, or attempt to induce, another person to participate in a pyramid scheme.

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

(3) To participate in a pyramid scheme is:

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

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

45 Meaning of pyramid scheme

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

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

(i) a financial or non‑financial benefit to, or for the benefit of, the other participant or participants;

(ii) a financial or non‑financial benefit partly to, or for the benefit of, the other participant or participants and partly to, or for the benefit of, other persons;

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

(i) a financial or non‑financial benefit to, or for the benefit of, new participants;

(ii) a financial or non‑financial benefit partly to, or for the benefit of, new participants and partly to, or for the benefit of, other persons.

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

(3) A scheme may be a pyramid scheme:

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

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

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

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

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

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

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

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

46 Marketing schemes as pyramid schemes

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

(a) whether the participation payments bear a reasonable relationship to the value of the goods or services that participants are entitled to be supplied with under the scheme (as assessed, if appropriate, by reference to the price of comparable goods or services available elsewhere);

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

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

Division 4—Pricing

47 Multiple pricing

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

(a) the goods have more than one displayed price; and

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

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

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

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

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

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

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

(ii) in any other case—the catalogue may reasonably be regarded as not out‑of‑date; or

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

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

(3) If:

(a) a price or representation is included in a catalogue; and

(b) the catalogue is expressed to apply only to goods supplied at a specified location, or in a specified region;

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

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

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

(b) the price or representation:

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

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

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

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

(a) the displayed price is retracted; and

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

48 Single price to be specified in certain circumstances

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

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

(b) the promotion by any means of the supply to another person, or of the use by another person, of goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;

make a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services unless the person also specifies, in a prominent way and as a single figure, the single price for the goods or services.

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

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

(3) However, if:

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

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

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

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

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

(4A) Subsection (1) does not apply if:

(a) the representation is in a class of representations prescribed by the regulations; and

(b) the conditions (if any) prescribed by the regulations in relation to representations in that class have been complied with.

Note: If the representation is in a class prescribed for paragraph (a) of this subsection and subsection (1) is complied with in relation to the representation, there is no need to also comply with any conditions prescribed for paragraph (b) of this subsection.

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

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

(a) the contract provides for the supply of the services for the term of the contract; and

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

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

(a) a charge of any description payable to the person making the representation by another person unless:

(i) the charge is payable at the option of the other person; and

(ii) at or before the time of the representation, the other person has either deselected the charge or not expressly requested that the charge be applied;

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

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

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

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

Example 1: An airline advertises a flight for sale. Persons have the option of paying for a carbon offset. If the carbon offset is preselected on the airline’s online booking system, the single price for the flight must include the carbon offset charge. This is because the person has not, at or before the time of the representation, deselected the charge on the online booking site. If the person deselects the optional carbon offset charge later in the online booking process, the single price does not need to include the carbon offset charge after the charge is deselected because of the exception provided by paragraphs (a)(i) and (ii).

Example 2: The GST may be an example of an amount covered by paragraph (b).

Example 3: The passenger movement charge imposed under the Passenger Movement Charge Act 1978 may be an example of an amount covered by paragraph (c). Under an arrangement under section 10 of the Passenger Movement Charge Collection Act 1978, airlines may pay an amount equal to the charge that would otherwise be payable by passengers departing Australia.

Division 5—Other unfair practices

49 Referral selling

A person must not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission or other benefit in return for:

(a) giving the person the names of prospective customers; or

(b) otherwise assisting the person to supply goods or services to other consumers;

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

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

50 Harassment and coercion

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

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

(b) the payment for goods or services; or

(d) the payment for an interest in land.

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

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

Part 3‑2—Consumer transactions

Division 1—Consumer guarantees

Subdivision A—Guarantees relating to the supply of goods

51 Guarantee as to title

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

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

(a) appears from the contract for the supply; or

(b) is to be inferred from the circumstances of that contract.

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

52 Guarantee as to undisturbed possession

(1) If:

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

(b) the supply is not a supply of limited title;

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

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

(3) If:

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

(b) the supply is a supply of limited title;

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

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

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

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

53 Guarantee as to undisclosed securities etc.

(1) If:

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

(b) the supply is not a supply of limited title;

there is a guarantee that:

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

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

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

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

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

(3) If:

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

(b) the supply is a supply of limited title;

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

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

54 Guarantee as to acceptable quality

(1) If:

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

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

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

(b) acceptable in appearance and finish; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

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

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

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

(e) any other relevant circumstances relating to the supply of the goods.

(4) If:

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

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

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) the goods would not be of acceptable quality if they were supplied to a consumer;

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

(6) Goods do not fail to be of acceptable quality if:

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

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

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

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

55 Guarantee as to fitness for any disclosed purpose etc.

(1) If:

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

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

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

(a) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

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

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

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

56 Guarantee relating to the supply of goods by description

(1) If:

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

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods correspond with the description.

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

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

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

(1) If:

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

(b) the supply does not occur by way of sale by auction;

there is a guarantee that:

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

(e) the goods are free from any defect that:

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

(ii) would cause the goods not to be of acceptable quality.

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

58 Guarantee as to repairs and spare parts

(1) If:

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

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.

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

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

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

59 Guarantee as to express warranties

(1) If:

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

(b) the supply does not occur by way of sale by auction;

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

(2) If:

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

(b) the supply does not occur by way of sale by auction;

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

Subdivision B—Guarantees relating to the supply of services

60 Guarantee as to due care and skill

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

61 Guarantees as to fitness for a particular purpose etc.

(1) If:

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

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

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

(2) If:

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

(b) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

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

the result that the consumer wishes the services to achieve;

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

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

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

62 Guarantee as to reasonable time for supply

If:

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

(b) the time within which the services are to be supplied:

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

(ii) is not to be determined in a manner agreed to by the consumer and supplier;

there is a guarantee that the services will be supplied within a reasonable time.

63 Services to which this Subdivision does not apply

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

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

(b) a contract of insurance.

(2) To avoid doubt, subsection (1)(a) does not apply if the consignee of the goods is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods.

Note: This subsection was inserted as a response to the decision of the High Court of Australia in Wallis v Downard‑Pickford (North Queensland) Pty Ltd [1994] HCA 17.

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

64 Guarantees not to be excluded etc. by contract

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

(a) the application of all or any of the provisions of this Division; or

(b) the exercise of a right conferred by such a provision; or

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

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

64A Limitation of liability for failures to comply with guarantees

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

(a) the replacement of the goods or the supply of equivalent goods;

(b) the repair of the goods;

(d) the payment of the cost of having the goods repaired.

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

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

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

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

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

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

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

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

Subdivision D—Miscellaneous

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

(1) This Division does not apply to a supply if the supply:

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

(b) is a supply of gas, electricity or a telecommunications service.

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

66 Display notices

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

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

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

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

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

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

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

(b) specify where the notice must be displayed;

(d) specify requirements as to the form of the notice.

67 Conflict of laws

If:

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

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

(i) the provisions of the law of a country other than Australia;

(ii) the provisions of the law of a State or a Territory;

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

68 Convention on Contracts for the International Sale of Goods

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

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

Division 2—Unsolicited consumer agreements

Subdivision A—Introduction

69 Meaning of unsolicited consumer agreement

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

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

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

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

(ii) by telephone;

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

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

(d) the total price paid or payable by the consumer under the agreement:

(i) is not ascertainable at the time the agreement is made; or

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

(1AA) To avoid doubt, a place mentioned in subsection (1)(b)(i) may be a public place, and need not be a place the dealer cannot enter without the consumer’s consent or invitation.

Note: This subsection was inserted as a response to the decision of the Federal Court of Australia in Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403.

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

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

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

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

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

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

70 Presumption that agreements are unsolicited consumer agreements

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

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

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

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

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

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

71 Meaning of dealer

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

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

(b) calls on, or telephones, a consumer for the purpose of entering into such negotiations;

whether or not that person is, or is to be, the supplier of the goods or services.

72 Meaning of negotiation

A negotiation, in relation to an agreement or a proposed agreement, includes any discussion or dealing directed towards the making of the agreement or proposed agreement (whether or not the terms of the agreement or proposed agreement are open to any discussion or dealing).

Subdivision B—Negotiating unsolicited consumer agreements

73 Permitted hours for negotiating an unsolicited consumer agreement

(1) A dealer must not call on a person for the purpose of negotiating an unsolicited consumer agreement, or for an incidental or related purpose:

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

(b) before 9 am on any other day; or

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

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

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

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

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

74 Disclosing purpose and identity

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

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

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

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

75 Ceasing to negotiate on request

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

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

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

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

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

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

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

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

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

76 Informing person of termination period etc.

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

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

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

(ii) the way in which the person may exercise that right;

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

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

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

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

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

77 Liability of suppliers for contraventions by dealers

If:

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

(b) the dealer is not, or is not to be, the supplier of the goods or services to which the agreement relates;

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

Subdivision C—Requirements for unsolicited consumer agreements etc.

78 Requirement to give document to the consumer

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

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

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

(a) personally; or

(b) by post; or

a document (the agreement document) evidencing the agreement.

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

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

79 Requirements for all unsolicited consumer agreements etc.

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

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

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

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

(b) its front page must include a notice that:

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

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

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

(i) may be used by the consumer to terminate the agreement; and

(ii) complies with any requirements prescribed by the regulations;

(d) it must conspicuously and prominently set out in full:

(i) the supplier’s name; and

(ii) if the supplier has an ABN—the supplier’s ABN; and

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

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

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

(vi) if the supplier has a fax number—the supplier’s fax number;

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

(f) it must be transparent.

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

80 Additional requirements for unsolicited consumer agreements not negotiated by telephone

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

(a) the agreement must be signed by the consumer under the agreement;

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

(i) the person’s name; and

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

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

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

81 Requirements for amendments of unsolicited consumer agreements

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

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

Subdivision D—Terminating unsolicited consumer agreements

82 Terminating an unsolicited consumer agreement during the termination period

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

(2) A right of termination under this section may be exercised:

(a) despite affirmation of the agreement by the consumer; and

(b) even though the agreement has been fully executed.

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

(a) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made;

(b) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement;

(c) if one or more of sections 73 (permitted hours for negotiating an unsolicited consumer agreement), 74 (disclosing purpose and identity) and 75 (ceasing to negotiate on request) were contravened in relation to the agreement:

(i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 3 months starting on the day after the day on which the agreement was made; or

(ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 3 months starting on the day after the day on which the consumer was given the agreement document relating to the agreement;

(d) if one or more of section 76 (informing consumer of termination period), a provision of Subdivision C (requirements for unsolicited consumer agreements) and section 86 (prohibition on supplies etc.) were contravened in relation to the agreement:

(i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 6 months starting on the day after the day on which the agreement was made; or

(ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the period of 6 months starting on the day after the day on which the consumer was given the agreement document relating to the agreement;

(e) such other period as the agreement provides.

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

(a) by delivering it personally to the supplier; or

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

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

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

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

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

83 Effect of termination

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

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

(b) any related contract or instrument is void.

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

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

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

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

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

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

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

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

84 Obligations of suppliers on termination

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

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

85 Obligations and rights of consumers on termination

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

(a) return to the supplier under the agreement any goods:

(i) that have been received from the supplier under the agreement; and

(ii) that the consumer has not already consumed; or

(b) notify the supplier of the place where the supplier may collect the goods.

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

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

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

(3) If:

(a) the agreement is terminated in accordance with section 82 after the end of:

(i) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or

(ii) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement; and

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

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

(4) The compensation is recoverable in a court of competent jurisdiction.

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

(6) If:

(a) an unsolicited consumer agreement is terminated in accordance with section 82 after the end of:

(b) prior to the termination, but after the end of that period, a service was supplied under the agreement;

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

86 Prohibition on supplies etc.

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

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

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

during:

(d) if the agreement was not negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the agreement was made; or

(e) if the agreement was negotiated by telephone—the period starting on the day on which the agreement was made and ending at the end of the tenth business day after the day on which the consumer was given the agreement document relating to the agreement.

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

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

Note: Section 41 deals with unsolicited goods.

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

Note: Section 42 deals with unsolicited services.

87 Repayment of payments received after termination

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

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

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

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

88 Prohibition on recovering amounts after termination

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

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

(b) take, or assert an intention to take, any other action against the consumer;

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

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

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

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

(b) taking, or asserting an intention to take, any other action against the consumer;

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

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

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

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

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

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

Subdivision E—Miscellaneous

89 Certain provisions of unsolicited consumer agreements void

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

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

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

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

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

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

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

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

90 Waiver of rights

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

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

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

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

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

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

92 Application of this Division to supplies to third parties

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

93 Effect of contravening this Division

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

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

94 Regulations may limit the application of this Division

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

(a) circumstances of a kind specified in the regulations; or

(b) agreements of a kind specified in the regulations; or

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

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

Note: Section 992A of the Corporations Act 2001 prohibits hawking of financial products.

Division 3—Lay‑by agreements

96 Lay‑by agreements must be in writing etc.

(1) A supplier of goods who is a party to a lay‑by agreement must ensure that:

(a) the agreement is in writing; and

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

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

(2) A supplier of goods who is a party to a lay‑by agreement must ensure that the agreement is transparent.

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

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

(b) the price of the goods is to be paid by:

(i) 3 or more instalments; or

(ii) if the agreement specifies that it is a lay‑by agreement—2 or more instalments.

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

97 Termination of lay‑by agreements by consumers

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

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

(a) the agreement is terminated by the consumer; and

(b) the supplier has not breached the agreement.

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

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

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

98 Termination of lay‑by agreements by suppliers

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

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

(b) the supplier is no longer engaged in trade or commerce; or

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

99 Effect of termination

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

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

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

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

Division 3A—Gift cards

Subdivision A—Introduction

99A Meaning of gift card

A gift card is:

(a) an article (whether in physical or electronic form) that:

(i) is of a kind that is commonly known as a gift card or gift voucher; and

(ii) is redeemable for goods or services; or

(b) an article of a kind specified in regulations made for the purposes of this paragraph;

but does not include an article of a kind specified in the regulations.

Subdivision B—Requirements relating to gift cards

99B Gift cards to be redeemable for at least 3 years

(1) A person must not, in trade or commerce, supply a gift card to a consumer if the day that the gift card ceases to be redeemable is earlier than 3 years after the day of that supply.

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

(2) If:

(a) a gift card is, in trade or commerce, supplied to a consumer; and

(b) the day that the gift card ceases to be redeemable is earlier than 3 years after the day of that supply;

the day that the gift card ceases to be redeemable is taken to be 3 years after the day of that supply.

(3) Subsection (2) does not affect a person’s liability for an alleged contravention of subsection (1) or section 191A.

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

A person must not, in trade or commerce, supply a gift card to a consumer if one of the following does not appear prominently on the gift card:

(a) the date the gift card ceases to be redeemable;

(b) the month and year the gift card ceases to be redeemable;

(c) the date the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;

(d) the month and year the gift card is supplied and a statement that identifies the period during which the gift card is redeemable;

(e) the words “no expiry date” or words to that effect.

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

99D Terms and conditions not to allow post‑supply fees

(1) A person must not, in trade or commerce, supply a gift card to a consumer if the terms or conditions (however described) of the gift card allow or require the payment of a post‑supply fee in relation to the gift card.

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

(2) A post‑supply fee is a fee or charge payable in relation to a gift card after it is supplied to a consumer, other than a fee or charge of a kind specified in the regulations.

99E Post‑supply fees not to be demanded or received

A person must not, in trade or commerce, demand or receive payment of a post‑supply fee in relation to a gift card.

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

99F Certain terms and conditions of gift card void

(1) A term or condition (however described) of a gift card is void if it has the effect of, or purports to have the effect of:

(a) allowing or requiring the payment of a post‑supply fee in relation to the gift card; or

(b) reducing the period that the gift card ceases to be redeemable to a period that ends earlier than 3 years after the day the gift card is supplied to a consumer.

(2) The supplier of a gift card must ensure that the terms or conditions (however described) of the gift card do not include, or purport to include, a term or condition that is, or would be, void because of subsection (1).

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

(3) This section does not affect a person’s liability for an alleged contravention of:

(a) section 99B(1); or

(b) section 99C; or

(d) section 99E; or

(e) section 191A; or

(f) section 191B; or

(g) section 191C; or

(h) section 191D.

Subdivision C—Miscellaneous

99G Regulations may limit application of this Division

The regulations may provide that some or all of the provisions of this Division do not apply to or in relation to:

(a) gift cards of a kind prescribed by the regulations; or

(b) persons of a kind prescribed by the regulations; or

Division 4—Miscellaneous

100 Supplier must provide proof of transaction etc.

(1) If:

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

(b) the total price (excluding GST) of the goods or services is $75 or more;

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

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

(2) If:

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

(b) the total price (excluding GST) of the goods or services is less than $75;

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

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

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

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

(a) identifies the supplier of the goods or services; and

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

(d) states the date of the supply; and

(e) states the goods or services supplied to the consumer; and

(f) states the price of the goods or services.

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

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

(b) a cash register receipt;

(d) a handwritten receipt;

(e) a lay‑by agreement;

(f) a confirmation or receipt number provided for a telephone or internet transaction.

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

101 Consumer may request an itemised bill

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

(a) specifies how the price of the services was calculated; and

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

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

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

(a) the services are supplied; or

(b) the consumer receives a bill or account from the supplier for the supply of the services;

whichever occurs later.

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

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

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

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

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

102 Prescribed requirements for warranties against defects

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

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

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

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

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

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

(a) repair or replace the goods or part of them; or

(b) provide again or rectify the services or part of them; or

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

103 Repairers must comply with prescribed requirements

(1) The regulations may prescribe requirements relating to the form and content of notices to be given relating to the repair of goods supplied to a consumer.

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

(a) accepts the goods for the purpose of repairing them; and

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

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

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

Division 1—Safety standards

104 Making safety standards for consumer goods and product related services

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

(a) consumer goods of a particular kind;

(b) product related services of a particular kind.

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

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

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

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

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

(b) the skills or qualifications of persons who supply such services;

(d) the testing of such services;

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

105 Declaring safety standards for consumer goods and product related services

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

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

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

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

(a) consumer goods of a particular kind; or

(b) product related services of a particular kind;

if that standard or part is inconsistent with a safety standard for those goods or services that is in force and that was made under section 104(1).

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

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

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

(b) those goods do not comply with the standard.

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

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

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

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

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

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

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

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

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

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

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

(7) If:

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

(b) another person suffers loss or damage:

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

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

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

the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

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

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

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

(b) those services do not comply with the standard.

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

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

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

(3) If:

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

(b) another person suffers loss or damage:

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

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

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

the other person is taken, for the purposes of this Schedule, to have suffered the loss or damage because of that supply.

108 Requirement to nominate a safety standard

If:

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

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

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

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

Division 2—Bans on consumer goods and product related services

Subdivision A—Interim bans

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

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

(a) it appears to the responsible Minister that:

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

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

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

(i) on consumer goods of the same kind; or

(ii) on consumer goods of a kind that includes those goods;

and that ban is still in force.

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

(a) it appears to the responsible Minister that:

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

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

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

(i) on product related services of the same kind; or

(ii) on product related services that include those services;

and that ban is still in force.

110 Places in which interim bans apply

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

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

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

111 Ban period for interim bans

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

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

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

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

(3) If:

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

(b) the extended ban period for the ban has not ended; and

the responsible Minister may, in writing, request the Commonwealth Minister to extend the extended ban period for the ban.

(4) If a request is made under subsection (3), the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.

(5) If:

(a) a request is made under subsection (3); and

(b) the Commonwealth Minister has not made a decision on the request immediately before the extended ban period for the interim ban is to end;

the Commonwealth Minister is taken to have decided to extend the extended ban period for the ban by a further period of 30 days.

(6) If:

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

(b) the extended ban period for the ban has not ended; and

the Commonwealth Minister may, by written notice published on the internet, extend the extended ban period for the interim ban by a further period of up to 30 days.

112 Interaction of multiple interim bans

(1) If:

(a) an interim ban (the original ban) on consumer goods of a particular kind (the banned goods) is imposed by a responsible Minister other than the Commonwealth Minister; and

(b) while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):

(i) on the banned goods; or

(ii) on consumer goods of a kind that includes the banned goods;

the original ban, to the extent that it is a ban on the banned goods, ceases to be in force immediately before the Commonwealth ban comes into force.

(2) If:

(a) an interim ban (the original ban) on product related services of a particular kind (the banned services) is imposed by a responsible Minister other than the Commonwealth Minister; and

(b) while the original ban is in force, the Commonwealth Minister imposes an interim ban (the Commonwealth ban):

(i) on the banned services; or

(ii) on product related services of a kind that includes the banned services;

the original ban, to the extent that it is a ban on the banned services, ceases to be in force immediately before the Commonwealth ban comes into force.

113 Revocation of interim bans

If a responsible Minister imposes an interim ban:

(a) the responsible Minister may, by written notice published on the internet, revoke the ban at any time; and

(b) the ban ceases to be in force on the day specified by the responsible Minister in the notice.

Subdivision B—Permanent bans

114 Permanent bans on consumer goods or product related services

(1) The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on consumer goods of a particular kind if:

(a) one or more interim bans on consumer goods of that kind (the banned goods), or on consumer goods of a kind that include the banned goods, are in force; or

(b) it appears to the Commonwealth Minister that:

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

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

(2) The Commonwealth Minister may, by written notice published on the internet, impose a permanent ban on product related services of a particular kind if:

(a) one or more interim bans on product related services of that kind (the banned services), or on product related services of a kind that include the banned services, are in force; or

(b) it appears to the Commonwealth Minister that:

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

115 Places in which permanent bans apply

A permanent ban applies in all States and Territories.

116 When permanent bans come into force

A permanent ban comes into force on the day specified by the Commonwealth Minister in the instrument imposing the ban.

117 Revocation of permanent bans

If the Commonwealth Minister imposes a permanent ban:

(a) the Commonwealth Minister may, by written notice published on the internet, revoke the ban at any time; and

(b) the ban ceases to be in force on the day specified by the Commonwealth Minister in the notice.

Subdivision C—Compliance with interim bans and permanent bans

118 Supplying etc. consumer goods covered by a ban

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

(a) an interim ban on consumer goods of that kind is in force in the place where the supply occurs; or

(b) a permanent ban on consumer goods of that kind is in force.