Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth)
This compilation was prepared on 30 November 2012
taking into account amendments up to Act No. 136 of 2012
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Parliamentary Counsel, Canberra
Contents
This Act may be cited as the
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 13 July 2010 |
Schedules 1 to 5 | The later of: (a) the start of 1 January 2011; and
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 1 January 2011 |
3. Schedule 6, items 1 to 46 | At the same time as the provision(s) covered by table item 2. | 1 January 2011 |
Schedule 6, item 47 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 1 January 2011 |
Schedule 6, items 48 to 141 | At the same time as the provision(s) covered by table item 2. | 1 January 2011 |
Schedule 6, item 142 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | |
Schedule 6, items 143 to 191 | At the same time as the provision(s) covered by table item 2. | 1 January 2011 |
Schedule 7 | At the same time as the provision(s) covered by table item 2. | 1 January 2011 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Repeal the Schedule, substitute:
Note: See Part XI.
1 Application of this Schedule
2 Definitions
3 Meaning of consumer
4 Misleading representations with respect to future matters
5 When donations are treated as supplies or acquisitions
6 Related bodies corporate
7 Meaning of manufacturer
8 Goods affixed to land or premises
9 Meaning of safety defect in relation to goods
10 Asserting a right to payment
11 References to acquisition, supply and re‑supply
12 Application of Schedule in relation to leases and licences of land and buildings
13 Loss or damage to include injury
14 Meaning of continuing credit contract
15 Contraventions of this Schedule
16 Severability
17 References to provisions in this Schedule
18 Misleading or deceptive conduct
19 Application of this Part to information providers
20 Unconscionable conduct within the meaning of the unwritten law
21 Unconscionable conduct
22 Unconscionable conduct in business transactions
23 Unfair terms of consumer contracts
24 Meaning of unfair
25 Examples of unfair terms
26 Terms that define main subject matter of consumer contracts etc. are unaffected
27 Standard form contracts
28 Contracts to which this Part does not apply
Division 1—False or misleading representations etc.
29 False or misleading representations about goods or services
30 False or misleading representations about sale etc. of land
31 Misleading conduct relating to employment
32 Offering rebates, gifts, prizes etc.
33 Misleading conduct as to the nature etc. of goods
34 Misleading conduct as to the nature etc. of services
35 Bait advertising
36 Wrongly accepting payment
37 Misleading representations about certain business activities
38 Application of provisions of this Division to information providers
Division 2—Unsolicited supplies
39 Unsolicited cards etc.
40 Assertion of right to payment for unsolicited goods or services
41 Liability etc. of recipient for unsolicited goods
42 Liability of recipient for unsolicited services
43 Assertion of right to payment for unauthorised entries or advertisements
Division 3—Pyramid schemes
44 Participation in pyramid schemes
45 Meaning of pyramid scheme
46 Marketing schemes as pyramid schemes
Division 4—Pricing
47 Multiple pricing
48 Single price to be specified in certain circumstances
Division 5—Other unfair practices
49 Referral selling
50 Harassment and coercion
Division 1—Consumer guarantees
Subdivision A—Guarantees relating to the supply of goods
51 Guarantee as to title
52 Guarantee as to undisturbed possession
53 Guarantee as to undisclosed securities etc.
54 Guarantee as to acceptable quality
55 Guarantee as to fitness for any disclosed purpose etc.
56 Guarantee relating to the supply of goods by description
57 Guarantees relating to the supply of goods by sample or demonstration model
58 Guarantee as to repairs and spare parts
59 Guarantee as to express warranties
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
61 Guarantees as to fitness for a particular purpose etc.
62 Guarantee as to reasonable time for supply
63 Services to which this Subdivision does not apply
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
Subdivision D—Miscellaneous
65 Application of this Division to supplies of gas, electricity and telecommunications
66 Display notices
67 Conflict of laws
68 Convention on Contracts for the International Sale of Goods
Division 2—Unsolicited consumer agreements
Subdivision A—Introduction
69 Meaning of unsolicited consumer agreement
70 Presumption that agreements are unsolicited consumer agreements
71 Meaning of dealer
72 Meaning of negotiation
Subdivision B—Negotiating unsolicited consumer agreements
73 Permitted hours for negotiating an unsolicited consumer agreement
74 Disclosing purpose and identity
75 Ceasing to negotiate on request
76 Informing person of termination period etc.
77 Liability of suppliers for contraventions by dealers
Subdivision C—Requirements for unsolicited consumer agreements etc.
78 Requirement to give document to the consumer
79 Requirements for all unsolicited consumer agreements etc.
80 Additional requirements for unsolicited consumer agreements not negotiated by telephone
81 Requirements for amendments of unsolicited consumer agreements
Subdivision D—Terminating unsolicited consumer agreements
82 Terminating an unsolicited consumer agreement during the termination period
83 Effect of termination
84 Obligations of suppliers on termination
85 Obligations and rights of consumers on termination
86 Prohibition on supplies etc. for 10 business days
87 Repayment of payments received after termination
88 Prohibition on recovering amounts after termination
Subdivision E—Miscellaneous
89 Certain provisions of unsolicited consumer agreements void
90 Waiver of rights
91 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.
92 Application of this Division to supplies to third parties
93 Effect of contravening this Division
94 Regulations may limit the application of this Division
95 Application of this Division to certain conduct covered by the Corporations Act
Division 3—Lay‑by agreements
96 Lay‑by agreements must be in writing etc.
97 Termination of lay‑by agreements by consumers
98 Termination of lay‑by agreements by suppliers
99 Effect of termination
Division 4—Miscellaneous
100 Supplier must provide proof of transaction etc.
101 Consumer may request an itemised bill
102 Prescribed requirements for warranties against defects
103 Repairers must comply with prescribed requirements
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
105 Declaring safety standards for consumer goods and product related services
106 Supplying etc. consumer goods that do not comply with safety standards
107 Supplying etc. product related services that do not comply with safety standards
108 Requirement to nominate a safety 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.
110 Places in which interim bans apply
111 Ban period for interim bans
112 Interaction of multiple interim bans
113 Revocation of interim bans
Subdivision B—Permanent bans
114 Permanent bans on consumer goods or product related services
115 Places in which permanent bans apply
116 When permanent bans come into force
117 Revocation of permanent bans
Subdivision C—Compliance with interim bans and permanent bans
118 Supplying etc. consumer goods covered by a ban
119 Supplying etc. product related services covered by a ban
Subdivision D—Temporary exemption from mutual recognition principles
120 Temporary exemption under the Trans‑Tasman Mutual Recognition Act 1997
121 Temporary exemption under the Mutual Recognition Act 1992
Division 3—Recall of consumer goods
Subdivision A—Compulsory recall of consumer goods
122 Compulsory recall of consumer goods
123 Contents of a recall notice
124 Obligations of a supplier in relation to a recall notice
125 Notification by persons who supply consumer goods outside Australia if there is compulsory recall
126 Interaction of multiple recall notices
127 Compliance with recall notices
Subdivision B—Voluntary recall of consumer goods
128 Notification requirements for a voluntary recall of consumer goods
Division 4—Safety warning notices
129 Safety warning notices about consumer goods and product related services
130 Announcement of the results of an investigation etc.
Division 5—Consumer goods, or product related services, associated with death or serious injury or illness
131 Suppliers to report consumer goods associated with the death or serious injury or illness of any person
132 Suppliers to report product related services associated with the death or serious injury or illness of any person
Division 6—Miscellaneous
133 Liability under a contract of insurance
134 Making information standards for goods and services
135 Declaring information standards for goods and services
136 Supplying etc. goods that do not comply with information standards
137 Supplying etc. services that do not comply with information standards
Part 3‑5—Liability of manufacturers for goods with safety defects
Division 1—Actions against manufacturers for goods with safety defects
138 Liability for loss or damage suffered by an injured individual
139 Liability for loss or damage suffered by a person other than an injured individual
140 Liability for loss or damage suffered by a person if other goods are destroyed or damaged
141 Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged
142 Defences to defective goods actions
Division 2—Defective goods actions
143 Time for commencing defective goods actions
144 Liability joint and several
145 Survival of actions
146 No defective goods action where workers’ compensation law etc. applies
147 Unidentified manufacturer
148 Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard
149 Representative actions by the regulator
Division 3—Miscellaneous
150 Application of all or any provisions of this Part etc. not to be excluded or modified
Division 1—False or misleading representations etc.
151 False or misleading representations about goods or services
152 False or misleading representations about sale etc. of land
153 Misleading conduct relating to employment
154 Offering rebates, gifts, prizes etc.
155 Misleading conduct as to the nature etc. of goods
156 Misleading conduct as to the nature etc. of services
157 Bait advertising
158 Wrongly accepting payment
159 Misleading representations about certain business activities
160 Application of provisions of this Division to information providers
Division 2—Unsolicited supplies
161 Unsolicited cards etc.
162 Assertion of right to payment for unsolicited goods or services
163 Assertion of right to payment for unauthorised entries or advertisements
Division 3—Pyramid schemes
164 Participation in pyramid schemes
Division 4—Pricing
165 Multiple pricing
166 Single price to be specified in certain circumstances
Division 5—Other unfair practices
167 Referral selling
168 Harassment and coercion
Part 4‑2—Offences relating to consumer transactions
Division 1—Consumer guarantees
169 Display notices
Division 2—Unsolicited consumer agreements
Subdivision A—Negotiating unsolicited consumer agreements
170 Permitted hours for negotiating an unsolicited consumer agreement
171 Disclosing purpose and identity
172 Ceasing to negotiate on request
173 Informing person of termination period etc.
Subdivision B—Requirements for unsolicited consumer agreements etc.
174 Requirement to give document to the consumer
175 Requirements for all unsolicited consumer agreements etc.
176 Additional requirements for unsolicited consumer agreements not negotiated by telephone
177 Requirements for amendments of unsolicited consumer agreements
Subdivision C—Terminating unsolicited consumer agreements
178 Obligations of suppliers on termination
179 Prohibition on supplies for 10 business days
180 Repayment of payments received after termination
181 Prohibition on recovering amounts after termination
Subdivision D—Miscellaneous
182 Certain provisions of unsolicited consumer agreements void
183 Waiver of rights
184 Application of this Division to persons to whom rights of consumers and suppliers are assigned etc.
185 Application of this Division to supplies to third parties
186 Regulations may limit the application of this Division
187 Application of this Division to certain conduct covered by the Corporations Act
Division 3—Lay‑by agreements
188 Lay‑by agreements must be in writing etc.
189 Termination charges
190 Termination of lay‑by agreements by suppliers
191 Refund of amounts
Division 4—Miscellaneous
192 Prescribed requirements for warranties against defects
193 Repairers must comply with prescribed requirements
Part 4‑3—Offences relating to safety of consumer goods and product related services
Division 1—Safety standards
194 Supplying etc. consumer goods that do not comply with safety standards
195 Supplying etc. product related services that do not comply with safety standards
196 Requirement to nominate a safety standard
Division 2—Bans on consumer goods and product related services
197 Supplying etc. consumer goods covered by a ban
198 Supplying etc. product related services covered by a ban
Division 3—Recall of consumer goods
199 Compliance with recall orders
200 Notification by persons who supply consumer goods outside Australia if there is compulsory recall
201 Notification requirements for a voluntary recall of consumer goods
Division 4—Consumer goods, or product related services, associated with death or serious injury or illness
202 Suppliers to report consumer goods etc. associated with the death or serious injury or illness of any person
Part 4‑4—Offences relating to information standards
203 Supplying etc. goods that do not comply with information standards
204 Supplying etc. services that do not comply with information standards
Part 4‑5—Offences relating to substantiation notices
205 Compliance with substantiation notices
206 False or misleading information etc.
207 Reasonable mistake of fact
208 Act or default of another person etc.
209 Publication of advertisements in the ordinary course of business
210 Supplying goods acquired for the purpose of re‑supply
211 Supplying services acquired for the purpose of re‑supply
212 Prosecutions to be commenced within 3 years
213 Preference must be given to compensation for victims
214 Penalties for contraventions of the same nature etc.
215 Penalties for previous contraventions of the same nature etc.
216 Granting of injunctions etc.
217 Criminal proceedings not to be brought for contraventions of Chapter 2 or 3
Division 1—Undertakings
218 Regulator may accept undertakings
Division 2—Substantiation notices
219 Regulator may require claims to be substantiated etc.
220 Extending periods for complying with substantiation notices
221 Compliance with substantiation notices
222 False or misleading information etc.
Division 3—Public warning notices
223 Regulator may issue a public warning notice
Division 1—Pecuniary penalties
224 Pecuniary penalties
225 Pecuniary penalties and offences
226 Defence
227 Preference must be given to compensation for victims
228 Civil action for recovery of pecuniary penalties
229 Indemnification of officers
230 Certain indemnities not authorised and certain documents void
231 Application of section 229 to a person other than a body corporate
Division 2—Injunctions
232 Injunctions
233 Consent injunctions
234 Interim injunctions
235 Variation and discharge of injunctions
Division 3—Damages
236 Actions for damages
Division 4—Compensation orders etc. for injured persons and orders for non‑party consumers
Subdivision A—Compensation orders etc. for injured persons
237 Compensation orders etc. on application by an injured person or the regulator
238 Compensation orders etc. arising out of other proceedings
Subdivision B—Orders for non‑party consumers
239 Orders to redress etc. loss or damage suffered by non‑party consumers
240 Determining whether to make a redress order etc. for non‑party consumers
241 When a non‑party consumer is bound by a redress order etc.
Subdivision C—Miscellaneous
242 Applications for orders
243 Kinds of orders that may be made
244 Power of a court to make orders
245 Interaction with other provisions
Division 5—Other remedies
246 Non‑punitive orders
247 Adverse publicity orders
248 Order disqualifying a person from managing corporations
249 Privilege against exposure to penalty or forfeiture—disqualification from managing corporations
250 Declarations relating to consumer contracts
Division 6—Defences
251 Publication of advertisement in the ordinary course of business
252 Supplying consumer goods for the purpose of re‑supply
253 Supplying product related services for the purpose of re‑supply
254 Overview
255 Country of origin representations do not contravene certain provisions
256 Cost of producing or manufacturing goods
257 Rules for determining the percentage of costs of production or manufacture attributable to a country
258 Proceedings relating to false, misleading or deceptive conduct or representations
Division 1—Action against suppliers
Subdivision A—Action against suppliers of goods
259 Action against suppliers of goods
260 When a failure to comply with a guarantee is a major failure
261 How suppliers may remedy a failure to comply with a guarantee
262 When consumers are not entitled to reject goods
263 Consequences of rejecting goods
264 Replaced goods
265 Termination of contracts for the supply of services that are connected with rejected goods
266 Rights of gift recipients
Subdivision B—Action against suppliers of services
267 Action against suppliers of services
268 When a failure to comply with a guarantee is a major failure
269 Termination of contracts for the supply of services
270 Termination of contracts for the supply of goods that are connected with terminated services
Division 2—Action for damages against manufacturers of goods
271 Action for damages against manufacturers of goods
272 Damages that may be recovered by action against manufacturers of goods
273 Time limit for actions against manufacturers of goods
Division 3—Miscellaneous
274 Indemnification of suppliers by manufacturers
275 Limitation of liability etc.
276 This Part not to be excluded etc. by contract
277 Representative actions by the regulator
Part 5‑5—Liability of suppliers and credit providers
Division 1—Linked credit contracts
278 Liability of suppliers and linked credit providers relating to linked credit contracts
279 Action by consumer to recover amount of loss or damage
280 Cases where a linked credit provider is not liable
281 Amount of liability of linked credit providers
282 Counter‑claims and offsets
283 Enforcement of judgments etc.
284 Award of interest to consumers
285 Liability of suppliers to linked credit providers, and of linked credit providers to suppliers
286 Joint liability proceedings and recovery under section 135 of the National Credit Code
Division 2—Non‑linked credit contracts
287 Liability of suppliers and credit providers relating to non‑linked credit contracts
This Schedule applies to the extent provided by:
(a) Part XI of the Competition and Consumer Act; or
(b) an application law.
(1) In this Schedule:
ABN has the meaning given by section 41 of theA 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 theCorporations Act 2001 .
acquire includes:
(a) in relation to goods—acquire by way of purchase, exchange or taking on lease, on hire or on hire‑purchase; and
(b) in relation to services—accept.
Note: Section 5 deals with when receipt of a donation is an acquisition.
adverse publicity order : see section 247(2).
affected person , in relation to goods, means:
(a) a consumer who acquires the goods; or
(b) a person who acquires the goods from the consumer (other than for the purpose of re‑supply); or
(c) a person who derives title to the goods through or under the consumer.
agreement document : see section 78(2).
applicable industry code has the meaning given by section 51ACA(1) of the Competition and Consumer Act.
application law has the same meaning as in section 140 of the Competition and Consumer Act.
article includes a token, card or document.
ASIC means the Australian Securities and Investments Commission.
assert a right to payment : see section 10(1).
associate regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means a body that is, for the purposes of the application of this Schedule as a law of a State or a Territory, the regulator within the meaning of the application law of the State or Territory; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—means:
(i) the Commission; or
(ii) a body that is, for the purposes of the application of this Schedule as a law of another State or a Territory, the regulator within the meaning of the application law of that other State or Territory.
authority , in relation to a State or a Territory (including an external Territory), means:
(a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest.
authority of the Commonwealth means:
(a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.
banker has the same meaning as in section 4(1) of the Competition and Consumer Act.
ban period for an interim ban: see section 111(1).
business includes a business not carried on for profit.
business day , in relation to an unsolicited consumer agreement, means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday in the place where the agreement was made.
business or professional relationship includes a relationship between employer and employee, or a similar relationship.
call on , in relation to negotiating an unsolicited consumer agreement, does not include call by telephone.
Commission has the same meaning as in section 4(1) of the Competition and Consumer Act.
Commonwealth mandatory standard , in relation to goods, means a mandatory standard in respect of the goods imposed by a law of the Commonwealth.
Commonwealth Minister means the Minister who administers Part XI of the Competition and Consumer Act.
Competition and Consumer Act means theCompetition and Consumer Act 2010 .
consumer : see section 3.
consumer contract : see section 23(3).
consumer goods means goods that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption, and includes any such goods that have become fixtures since the time they were supplied if:
(a) a recall notice for the goods has been issued; or
(b) a person has voluntarily taken action to recall the goods.
continuing credit contract : see section 14(1).
contravening conduct : see section 239(1)(a)(i).
court , in relation to a matter, means any court having jurisdiction in the matter.
covering includes a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper.
credit card : see section 39(5).
credit provider means a person providing, or proposing to provide, in the course of a business carried on by the person, credit to consumers in relation to the acquisition of goods or services.
dealer : see section 71.
debit card : see section 39(6).
declared term : see section 239(1)(a)(ii).
defective goods action means an action under section 138, 139, 140 or 141, and includes such an action because of section 138(3) or 145.
disclosed purpose : see section 55(2).
displayed price : see sections 47(2) to (5).
document includes:
(a) a book, plan, paper, parchment or other material on which there is writing or printing, or on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and
(b) a disc, tape, paper or other device from which sounds or messages are capable of being reproduced.
enforcement proceeding means:
(a) a proceeding for an offence against Chapter 4; or
(b) a proceeding instituted under Chapter 5 (other than under sections 237 and 239).
evidential burden , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
express warranty , in relation to goods, means an undertaking, assertion or representation:
(a) that relates to:
(i) the quality, state, condition, performance or characteristics of the goods; or
(ii) the provision of services that are or may at any time be required for the goods; or
(iii) the supply of parts that are or may at any time be required for the goods; or
(iv) the future availability of identical goods, or of goods constituting or forming part of a set of which the goods, in relation to which the undertaking, assertion or representation is given or made, form part; and
(b) that is given or made in connection with the supply of the goods, or in connection with the promotion by any means of the supply or use of the goods; and
(c) the natural tendency of which is to induce persons to acquire the goods.
financial product has the meaning given by section 12BAA of theAustralian Securities and Investments Commission Act 2001 .
financial service has the meaning given by section 12BAB of theAustralian Securities and Investments Commission Act 2001 .
free item includes a free service.
goods includes:
(a) ships, aircraft and other vehicles; and
(b) animals, including fish; and
(c) minerals, trees and crops, whether on, under or attached to land or not; and
(d) gas and electricity; and
(e) computer software; and
(f) second‑hand goods; and
(g) any component part of, or accessory to, goods.
grown : see section 255(7).
GST has the meaning given by section 195‑1 of theA New Tax System (Goods and Services Tax) Act 1999 .
industry code has the meaning given by section 51ACA of the Competition and Consumer Act.
information provider : see sections 19(5) and (6).
information standard : see sections 134(1) and 135(1).
inner container includes any container into which goods are packed, other than a shipping or airline container, pallet or other similar article.
interest , in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
interim ban : see sections 109(1) and (2).
involved : a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced, whether by threats or promises or otherwise, the contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) has conspired with others to effect the contravention.
joint liability proceedings means proceedings relating to the joint and several liability under section 278 of a linked credit provider and a supplier of goods or services.
label includes a band or ticket.
lay‑by agreement : see section 96(3).
linked credit contract : see section 278(2).
linked credit provider , in relation to a supplier of goods or services, means a credit provider:
(a) with whom the supplier has a contract, arrangement or understanding relating to:
(i) the supply to the supplier of goods in which the supplier deals; or
(ii) the business carried on by the supplier of supplying goods or services; or
(iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or
(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or
(c) whose forms of contract, forms of application or offers for credit are, by arrangement with the credit provider, made available to persons by the supplier; or
(d) with whom the supplier has a contract, arrangement or understanding under which contracts, applications or offers for credit from the credit provider may be signed by persons at premises of the supplier.
listed public company has the meaning given by section 995‑1(1) theIncome Tax Assessment Act 1997 .
loan contract means a contract under which a person in the course of a business carried on by that person provides or agrees to provide, whether on one or more occasions, credit to a consumer in one or more of the following ways:
(a) by paying an amount to, or in accordance with the instructions of, the consumer;
(b) by applying an amount in satisfaction or reduction of an amount owed to the person by the consumer;
(c) by varying the terms of a contract under which money owed to the person by the consumer is payable;
(d) by deferring an obligation of the consumer to pay an amount to the person;
(e) by taking from the consumer a bill of exchange or other negotiable instrument on which the consumer (whether alone or with another person or other persons) is liable as drawer, acceptor or endorser.
major failure : see sections 260 and 268.
mandatory standard , in relation to goods, means a standard:
(a) for the goods or anything relating to the goods; and
(b) that, under a law of the Commonwealth, a State or a Territory, must be complied with when the goods are supplied by their manufacturer, being a law creating an offence or liability if there is such non‑compliance;
but does not include a standard which may be complied with by meeting a higher standard.
manufacturer : see section 7.
market has the same meaning as in section 4E of the Competition and Consumer Act.
materials , in relation to goods, means:
(a) if the goods are unmanufactured raw products—those products; and
(b) if the goods are manufactured goods—all matter or substances used or consumed in the manufacture of the goods (other than matter or substances that are treated as overheads); and
(c) in either case—the inner containers in which the goods are packed.
mixed supply : see section 3(11).
National Credit Code has the meaning given by section 5(1) of theNational Consumer Credit Protection Act 2009 .
negotiated by telephone : see section 78(3).
negotiation : see section 72.
new participant : see section 45(2).
non‑linked credit contract : see section 287(5).
non‑party consumer means:
(a) in relation to conduct referred to in section 239(1)(a)(i)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; and
(b) in relation to a term of a consumer contract referred to in section 239(1)(a)(ii)—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term.
participant , in a pyramid scheme, means a person who participates in the scheme.
participate , in a pyramid scheme: see section 44(3).
participation payment : see section 45(1)(a).
permanent ban : see sections 114(1) and (2).
premises means:
(a) an area of land or any other place (whether or not it is enclosed or built on); or
(b) a building or other structure; or
(c) a vehicle, vessel or aircraft; or
(d) a part of any such premises.
price , of goods or services, means:
(a) the amount paid or payable (including any charge of any description) for their acquisition; or
(b) if such an amount is not specified because the acquisition is part only of a transaction for which a total amount is paid or payable:
(i) the lowest amount (including any charge of any description) for which the goods or services could reasonably have been acquired from the supplier at the time of the transaction or, if not from the supplier, from another supplier; or
(ii) if they could not reasonably have been acquired separately from another supplier—their value at the time of the transaction.
prior negotiations or arrangements , in relation to the acquisition of goods by a consumer, means negotiations or arrangements:
(a) that were conducted or made with the consumer by another person in the course of a business carried on by the other person; and
(b) that induced the consumer to acquire the goods, or otherwise promoted the acquisition of the goods by the consumer.
product related service means a service for or relating to:
(a) the installation of consumer goods of a particular kind; or
(b) the maintenance, repair or cleaning of consumer goods of a particular kind; or
(c) the assembly of consumer goods of a particular kind; or
(d) the delivery of consumer goods of a particular kind;
and, without limiting paragraphs (a) to (d), includes any other service that relates to the supply of consumer goods of that kind.
proof of transaction : see section 100(4).
publish , in relation to an advertisement, means include in a publication intended for sale or public distribution (whether to the public generally or to a restricted class or number of persons) or for public display (including in an electronic form).
pyramid scheme : see section 45(1).
recall notice : see section 122(1).
recovery period : see section 41(4).
recruitment payment : see section 45(1)(b).
regulations means regulations made under section 139G of the Competition and Consumer Act.
regulator :
(a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or
(b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory.
rejection period : see section 262(2).
related , in relation to a body corporate: see section 6.
related contract or instrument : see section 83(2).
rely on , in relation to a term of a consumer contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right conferred, or purportedly conferred, by the term;
(c) assert the existence of a right conferred, or purportedly conferred, by the term.
responsible Minister means:
(a) the Commonwealth Minister; or
(b) the Minister of a State who administers the application law of the State; or
(c) the Minister of a Territory who administers the application law of the Territory.
safety defect , in relation to goods: see section 9.
safety standard : see sections 104(1) and 105(1).
sale by auction , in relation to the supply of goods by a person, means a sale by auction that is conducted by an agent of the person (whether the agent acts in person or by electronic means).
send includes deliver, andsent andsender 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 theAdmiralty Act 1988 .
single price : see section 48(7).
substantially transformed , in relation to goods: see section 255(3).
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 andsupplier 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—see section 24(3).
unfair , in relation to a term of a consumer 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 services supplied to a person without any request made by the person or on his or her behalf.
upfront price : see section 26(2).
warranty against defects : see section 102(3).
(2) In this Schedule:
(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing of or the refusing to do any act, including:
(i) the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii) the arriving at, or the giving effect to a provision of, an understanding; or
(iii) the requiring of the giving of, or the giving of, a covenant; and
(c) a reference to refusing to do an act includes a reference to:
(i) refraining (otherwise than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a
consumer if, and only if:
(a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or
(b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:
(a) for the purpose of re‑supply; 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.
(1) If:
(a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b) the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.
(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.
(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.
(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.
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.
(1) For the purposes of this Schedule, goods have a
safety defect if their safety is not such as persons generally are entitled to expect.(2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including:
(a) the manner in which, and the purposes for which, they have been marketed; and
(b) their packaging; and
(c) the use of any mark in relation to them; and
(d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and
(e) what might reasonably be expected to be done with or in relation to them; and
(f) the time when they were supplied by their manufacturer.
(3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied.
(4) An inference that goods have a safety defect is not to be made only because:
(a) there was compliance with a Commonwealth mandatory standard for them; and
(b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.
(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.
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 (theoriginal 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.
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.
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.
(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.
Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of:
(a) section 23(1); or
(b) a provision of Division 1 of Part 3‑2 (other than section 66(2)); or
(c) a provision of Part 3‑5.
(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.
In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.
(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.
(1) This Part does not apply to a publication of matter by an information provider if:
(a) in any case—the information provider made the publication in the course of carrying on a business of providing information; or
(b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the
Broadcasting Services Act 1992 —the publication was by way of a radio or television broadcast by the information provider.(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the
publicised goods or services ), if:
(a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services.
(4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the
publicised interests in land ), if:
(a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or
(c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land.
(5) An
information provider is a person who carries on a business of providing information.(6) Without limiting subsection (5), each of the following is an
information provider :
(a) the holder of a licence granted under the
Broadcasting Services Act 1992 ;(b) a person who is the provider of a broadcasting service under a class licence under that Act;
(c) the holder of a licence continued in force by section 5(1) of the
Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 ;(d) the Australian Broadcasting Corporation;
(e) the Special Broadcasting Service Corporation.
(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 or 22.
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the
supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (theconsumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the 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 consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a person by reason only that the person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person:
(a) 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.
(5) A reference in this section to goods or services is a reference to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re‑supply or for the purpose of using them up or transforming them in trade or commerce.
(7) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 3‑1.
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
Note: A pecuniary penalty may be imposed for a contravention of this subsection.
(2) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the
supplier ) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (thebusiness consumer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the business consumer; and
(b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the business consumer acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the business consumer:
(i) any intended conduct of the supplier that might affect the interests of the business consumer; and
(ii) any risks to the business consumer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer); and
(j) if there is a contract between the supplier and the business consumer 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 business consumer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the business consumer in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the business consumer 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 business consumer for the supply of the goods or services; and
(l) the extent to which the supplier and the business consumer acted in good faith.
(3) Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the
acquirer ) has contravened subsection (1) in connection with the acquisition or possible acquisition of goods or services from another person (thesmall business supplier ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and
(b) whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and
(c) whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and
(e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and
(f) the extent to which the acquirer’s conduct towards the small business supplier was consistent with the acquirer’s conduct in similar transactions between the acquirer and other like small business suppliers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier:
(i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and
(ii) any risks to the small business supplier arising from the acquirer’s intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and
(j) if there is a contract between the acquirer and the small business 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 small business supplier; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the acquirer and the small business supplier in complying with the terms and conditions of the contract; and
(iv) any conduct that the acquirer or the small business 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 small business supplier for the acquisition of the goods or services; and
(l) the extent to which the acquirer and the small business supplier acted in good faith.
(4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of goods or services to another person; or
(b) the acquisition or possible acquisition of goods or services from another person;
by reason only that the first‑mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.
(5) 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 circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(6) A reference in this section to the supply or possible supply of goods or services is a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(7) A reference in this section to the acquisition or possible acquisition of goods or services is a reference to the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.
(8) Section 4 applies for the purposes of this section in the same way as it applies for the purposes of Division 1 of Part 3‑1.
(1) A term of a consumer contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
(3) A
consumer contract is a contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in land;
to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.
(1) A term of a consumer contract is
unfair if:
(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is
transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a consumer 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.
(1) Without limiting section 24, the following are examples of the kinds of terms of a consumer 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.
(2) Before the Governor‑General makes a regulation for the purposes of subsection (1)(n) prescribing a kind of term, or a kind of effect that a term has, the Minister must take into consideration:
(a) the detriment that a term of that kind would cause to consumers; and
(b) the impact on business generally of prescribing that kind of term or effect; and
(c) the public interest.
(1) Section 23 does not apply to a term of a consumer contract to the extent, but only to the extent, that the term:
(a) defines the main subject matter of the contract; or
(b) sets the upfront price payable under the contract; or
(c) is a term required, or expressly permitted, by a law of the Commonwealth, a State or a Territory.
(2) The
upfront price payable under a consumer 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.
(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.
Repeal the subsections.
Repeal the section.
81
Subsection 86C(4) (paragraph (a) of the definition of contravening conduct ) Repeal the paragraph, substitute:
(a) contravenes Part IV or IVB or section 95AZN; or
Omit “or 76E”.
Omit “or Part VC”.
Repeal the section.
Repeal the subsection.
Omit “, (1A) or (1B)”, substitute “or (1A)”.
Omit “or (1B)”.
Omit “Subject to subsection (1AA) but without limiting”, substitute “Without limiting”.
Omit “or Part VC”.
Omit “, IVA, IVB, V or VC, or of the Australian Consumer Law,”, substitute “or Division 2 of Part IVB”.
Omit “Subject to subsection (1AA) but without limiting the generality of section 80 or 87AAA”, substitute “Without limiting the generality of sections 51ADB and 80”.
Omit “Part IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “Division 2 of Part IVB”.
Omit “, IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “or Division 2 of Part IVB”.
Repeal the subsections.
Omit “, IVA, IVB, V or VC, or a provision of the Australian Consumer Law”, substitute “or Division 2 of Part IVB”.
Omit “Part IV, IVA, IVB, V or VC, or of a provision of the Australian Consumer Law,”, substitute “Part IV or Division 2 of Part IVB”.
Repeal the subsections.
Repeal the subsection, substitute:
(6) In subsection (2),
interest , in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connection with, the land.
Repeal the subsection.
100
Sections 87AAA, 87AAB, 87A, 87AB, 87AC and 87CAA Repeal the sections.
Omit “section 82”, substitute “section 236 of the Australian Consumer Law”.
Omit “section 52”, substitute “section 18 of the Australian Consumer Law”.
102
Section 87D (paragraph (a) of the definition of plaintiff ) Omit “section 75AQ or paragraph 87(1A)(b)”, substitute “paragraph 87(1A)(b), or under section 149 or paragraph 237(1)(b) of the Australian Consumer Law”.
Omit “this Act”, substitute “the Australian Consumer Law”.
Omit “Part IVA, to Division 1A or 2A of Part V or to Part VA”, substitute “Part 2‑2, 3‑3, 3‑4 or 3‑5, or Division 2 of Part 5‑4, of the Australian Consumer Law”.
Repeal the Parts.
Omit “the
Trade Practices Act 1974 ”, substitute “this Act”.
Omit “section 65J or 65M”, substitute “Division 3 of Part XI”.
108
Subsection 155AAA(21) (paragraph (a) of the definition of core statutory provision ) Repeal the paragraph, substitute:
(a) a provision of Part IV, VII, VIII, XI, XIB or XIC; or
109
Subsection 155AAA(21) (paragraph (c) of the definition of core statutory provision ) After “regulations”, insert “made under section 172”.
110
Subsection 155AAA(21) (at the end of the definition of core statutory provision ) Add:
; or (d) a provision of the Australian Consumer Law (other than Part 5‑3); or
(e) a provision of the regulations made under section 139G so far as it relates to a provision covered by paragraph (d).
Before “section 86C”, insert “, subsection 51ADB(1),”.
Omit “, 87AAA(1) or 87A(1)”.
Insert:
(1AA) Subject to subsections (1AB) and (1A), if an application for an order against a person is made under:
(a) section 137F; or
(b) subsection 237(1), or section 246 or 247, of the Australian Consumer Law;
the Commission must, at the request of the person and upon payment of the prescribed fee (if any), give the person:
(c) a copy of every document that has been given to, or obtained by, the Commission in connection with the matter to which the application relates and tends to establish the case of the person; and
(d) a copy of any other document in the possession of the Commission that comes to the attention of the Commission in connection with the matter to which the application relates and tends to establish the case of the person.
(1AB) Subsection (1AA) does not apply to a document obtained from the person, or prepared by an officer or professional adviser of the Commission.
Omit “section 65J, 65M, 90A, 93A or 151AZ”, substitute “section 90 or 93A, Division 3 of Part XI or section 151AZ”.
Repeal the subparagraph.
Insert:
(aaa) a declaration in relation to the operation or effect of any provision of the Australian Consumer law other than Division 1 of Part 3‑2 or Part 5‑4; or
Omit “Part VA,”.
After “section 163A”, insert “, or under Part 3‑5 or Chapter 5 of the Australian Consumer Law”.
Omit “Part VA,”.
After “section 163A”, insert “, or under Part 3‑5 or Chapter 5 of the Australian Consumer Law”.
Insert:
(ca) the number of search warrants issued by a judge under section 135Z or signed by a judge under section 136; and
After “search warrants”, insert “referred to in paragraph (ca) or (d)”.
Before “Part XID”, insert “section 133B or 133C, Division 6 of Part XI or”.
After “permitted by this Act”, insert “(other than Schedule 2)”.
After “giving effect to this Act”, insert “(other than Schedule 2)”.
Repeal the subsection.
After “Part IV” (wherever occurring), insert “or Schedule 2”.
Omit “
Trade Practices Act 1974 ”, substitute “Competition and Consumer Act 2010 ”.
Omit “
Trade Practices Act 1974 ”, substitute “Competition and Consumer Act 2010 ”.
The specified provisions of the Acts listed in this Part are amended by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
5
Subsection 147(2) (including the note) (wherever occurring)
Note: The heading to section 148 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
8
Subsection 158(2) (including the note) (wherever occurring)
Note: The heading to section 159 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 193 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 248 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 55 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
21
Section 5 (paragraphs (e) and (f) of the definition of loan ) 22
Subsection 6(2) (table items 10, 11, 12, and 13, column headed “Provision of a designated service”) 23
Subsection 6(2) (paragraphs (b) and (c) of the cell at table item 51, column headed “Provision of a designated service”)
25
Section 3 (definition of Australian Energy Regulator )
Note: The heading to section 32D is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
37
Section 90E (paragraph (a) of the definition of consumer protection law )
Note: The heading to section 16AA is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 16AU is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 77 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Note: The heading to section 116B is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Note: The heading to section 130 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Note: This item does not commence at all if Schedule 1 to the
Broadcasting Legislation Amendment (Digital Television) Act 2010 does not commence. (See table item 4 in subsection 2(1) of this Act.)
54
Section 4 (paragraph (a) of the definition of supply )
59
Section 32B (paragraphs (a) and (b) of the definition of Australian proceeding )
Note: The heading to section 62ZN is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 62ZZV is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
70
Subsection 3(1) (paragraphs (a) and (aa) of special federal matter )
Note: The heading to section 179A is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
74
Section 43 (including the note) (wherever occurring) Note: The heading to section 43 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
75
Subparagraphs 20(11)(b)(i) and (12)(c)(i) of Schedule 2
Note: The heading to section 18 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 21 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Note: The heading to section 26 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
81
Subsections 12(5), 13(4) and 14(3) of Schedule 3
Note: The heading to section 18A is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
86
Section 338 (paragraph (ed) of the definition of serious offence )
Note: The heading to section 106A is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Note: The heading to section 114A is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Note: The heading to section 312 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
103
Section 4 (paragraph (a) of the definition of supply )
Note: The heading to section 5A is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
107
Section 7 (paragraphs (c), (d) and (e) of the definition of ACCC’s telecommunications functions and powers ) 108
Section 7 (paragraph (d) of the definition of ACMA’s telecommunications powers ) 109
Subsection 61A(5) (definition of eligible service ) 110
Subsection 61A(5) (definition of substantial degree of power ) 111
Subsection 61A(5) (definition of telecommunications market ) 112
Section 62 (including the note) (wherever occurring) Note: The heading to section 62 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
113
Subsection 69(7) (including the note) (wherever occurring)
115
Subsection 70(4) (including the note) (wherever occurring)
117
Subsections 98(2), 102(6) and 103(3) (including the notes) (wherever occurring)
119
Subsection 350A(5) (including the note) (wherever occurring) 120
Subsection 367(7) (definition of engaging in conduct )
122
Subsection 384(9) (definition of declared service )
Note: The heading to section 483 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
131
Subsection 589(6) (paragraph (b) of the definition of this Act )
133
Clause 45 of Schedule 1 (definition of active declared service ) 134
Clause 45 of Schedule 1 (definition of eligible service )
136
Clause 50 of Schedule 1 (definition of eligible service )
142
Subparagraphs 36(2)(a)(iv) and 81(2)(a)(i) and (ii) Note: This item does not commence at all if section 3 of the
Trans‑Tasman Proceedings Act 2010 does not commence. (See table item 6 in subsection 2(1) of this Act.)
145
Section 5 (definition of port terminal service )
Insert:
(fa) an Act of a State, the Australian Capital Territory or the Northern Territory that applies Schedule 2 to the
Competition and Consumer Act 2010 as a law of the State or Territory;
Omit “section 65F of the
Trade Practices Act 1974 ”, substitute “section 122 of Schedule 2 to theCompetition and Consumer Act 2010 , as that section applies as a law of the Commonwealth”.
Omit “section 75AL of the
Trade Practices Act 1974 ”, substitute “section 148 of Schedule 2 to theCompetition and Consumer Act 2010 , as that section applies as a law of the Commonwealth”.
Omit “Section 65R of the
Trade Practices Act 1974 ”, substitute “Section 128 of Schedule 2 to theCompetition and Consumer Act 2010 , as that section applies as a law of the Commonwealth,”.Note: The heading to section 106 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Repeal the heading, substitute:
Repeal the heading, substitute:
Repeal the heading, substitute:
Omit “section 63A of the
Trade Practices Act 1974 ”, substitute “Schedule 2 to theCompetition and Consumer Act 2010 ”.
Omit “section 63A of the
Trade Practices Act 1974 ”, substitute “Schedule 2 to theCompetition and Consumer Act 2010 ”.
159
Subdivision G of Division 2AA of Part II (heading) Repeal the heading, substitute:
Omit “Division 2 of Part V of the
Trade Practices Act 1974 ”, substitute “Division 1 of Part 3‑2 of Schedule 2 to theCompetition and Consumer Act 2010 , as that Division applies as a law of the Commonwealth,”.Note: The heading to section 18 is altered by omitting “
Trade Practices Act 1974 ” and substituting “Competition and Consumer Act 2010 ”.
Repeal the section, substitute:
(1) For the purposes of the following provisions, a group member in a representative proceeding is to be taken to be a party to the proceeding:
(a) subsection 87(1) of the
Competition and Consumer Act 2010 ;(b) subsection 238(1) of Schedule 2 to that Act, as that subsection applies as a law of the Commonwealth.
(2) An application by a representative party in a representative proceeding under:
(a) subsection 87(1A) of the
Competition and Consumer Act 2010 ; or(b) subsection 237(1) of Schedule 2 to that Act, as that subsection applies as a law of the Commonwealth;
is to be taken to be an application by the representative party and all the group members.
Omit “Division 1A of Part V of the
Trade Practices Act 1974 ”, substitute “Part 3‑3 of Schedule 2 to theCompetition and Consumer Act 2010 , as that Part applies as a law of the Commonwealth”.
Omit “that Division”, substitute “that Part”.
Repeal the heading, substitute:
Omit “Part IVA or Division 1 or 1A of Part V of the
Trade Practices Act 1974 ”, substitute “Part 2‑2, 3‑1, 3‑3 or 3‑4 of Schedule 2 to theCompetition and Consumer Act 2010 , as that Part applies as a law of the Commonwealth”.Note: The heading to section 10 is altered by omitting “
Division 1 or 1A of Part V of the Trade Practices Act ” and substituting “the Australian Consumer Law ”.
Insert:
Australian Consumer Law means Schedule 2 to theCompetition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
Omit “For the purpose of sections 65C (other than subsection 65C(8)) and 65F of the
Trade Practices Act 1974 ”, substitute “For the purpose of sections 106 and 122 (other than subsection 106(7)) of the Australian Consumer Law”.Note: The heading to section 41 is altered by omitting “
Trade Practices Act ” and substituting “the Australian Consumer Law ”.
Omit “prescribed consumer product safety standard”, substitute “safety standard (within the meaning of the Australian Consumer Law)”.
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
Insert:
Competition and Consumer Act means theCompetition and Consumer Act 2010 .
171
Section 3 (paragraphs (a) and (b) of the definition of telecommunications access regime ) Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
Repeal the definition.
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
174
Subsections 16(1), (2), (3) and (4) and 17(1), (2) and (3) Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
Omit “Trade Practices Act”, substitute “Competition and Consumer Act”.
Note: The heading to section 25 is altered by omitting “
Trade Practices Act ” and substituting “Competition and Consumer Act ”.
Insert:
Australian Consumer Law means Schedule 2 to theCompetition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
Omit “
Trade Practices Act 1974 ”, substitute “Australian Consumer Law”.Note: The heading to section 9A is altered by omitting “
Trade Practices Act 1974 ” and substituting “Australian Consumer Law ”.
Omit “section 52 of that Act”, substitute “section 18 of the Australian Consumer Law”.
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g) of the Australian Consumer Law”.
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h) of the Australian Consumer Law”.
Omit “
Trade Practices Act 1974 ”, substitute “Australian Consumer Law”.
Omit “that Act”, substitute “the Australian Consumer Law”.
Omit “
Trade Practices Act 1974 ”, substitute “Australian Consumer Law”.
Omit “section 52 of that Act”, substitute “section 18 of the Australian Consumer Law”.
Omit “paragraph 53(c) of that Act”, substitute “paragraph 29(1)(g) of the Australian Consumer Law”.
Omit “paragraph 53(d) of that Act”, substitute “paragraph 29(1)(h) of the Australian Consumer Law”.
Omit “
Trade Practices Act 1974 ”, substitute “Australian Consumer Law”.
Omit “that Act”, substitute “the Australian Consumer Law”.
189
Subdivision D of Division 1 of Part 3.2 (heading) Repeal the heading, substitute:
Insert:
Australian Consumer Law means Schedule 2 to theCompetition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act.
Omit “or section 76 of the
Trade Practices Act 1974 ”, substitute “, section 76 of theCompetition and Consumer Act 2010 or section 224 of the Australian Consumer Law”.
In this Schedule:
Australian Consumer Law has the same meaning as in Part XI of theCompetition and Consumer Act 2010 as substituted by Schedule 2 to this Act.
Commonwealth Minister has the same meaning as in the Australian Consumer Law.
A notice under subsection 65C(5) of the
Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if:
(a) it were an interim ban imposed under section 109 of the Australian Consumer Law by the Commonwealth Minister; and
(b) it starts on the day of that commencement.
A notice under subsection 65C(7) of the
Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a permanent ban imposed under section 114 of the Australian Consumer Law.
A prescribed consumer product safety standard under section 65C of the
Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were a safety standard made under section 104 of the Australian Consumer Law.
5
Prescribed consumer product information standards A prescribed consumer product information standard under section 65D of the
Trade Practices Act 1974 that was in force immediately before the commencement of this item continues in force after that commencement as if it were an information standard made under section 134 of the Australian Consumer Law.
6
Acts or omissions that occurred before commencement (1) The
Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply, after that commencement, in relation to acts or omissions that occurred before that commencement.(2) Without limiting subitem (1), action may be taken, under or in relation to Part VC or VI of that Act as so in force, in relation to those acts or omissions.
(1) The
Trade Practices Act 1974 as in force immediately before the commencement of this item continues to apply to or in relation to any proceedings, under or in relation to that Act, that were commenced, but not concluded, before that commencement.(2) However, to the extent that any such proceeding are proceedings for an injunction under section 80 of that Act as so in force, the proceedings are taken, after that commencement, to be proceedings for an injunction under section 232 of the Australian Consumer Law.
(1) Part 2‑3 of the Australian Consumer Law applies to a contract entered into on or after the commencement of this item.
(2) That Part does not apply to a contract entered into before that commencement. However:
(a) if the contract is renewed on or after that commencement—that Part applies to the contract as renewed, on and from the day (the
renewal day ) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or(b) if a term of the contract is varied on or after that commencement, and paragraph (a) has not already applied in relation to the contract—that Part applies to the term as varied, on and from the day (the
variation day ) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.(3) If paragraph (2)(b) applies to a term of a contract, subsection 23(2) and section 27 of the Australian Consumer Law apply to the contract.
(4) Despite paragraphs (2)(a) and (b) and subitem (3), that Part does not apply to a contract, or a term of a contract, to the extent that the operation of that Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph of the Constitution).
Section 101 of the Australian Consumer Law does not apply in relation to a supply of services to the extent that the services were supplied before the commencement of this item.
10
Pecuniary penalties—having regard to previous findings The reference in paragraph 224(2)(c) of the Australian Consumer Law to proceedings under Chapter 4 or Part 5‑2 of Schedule 2 includes a reference to proceedings, commenced before the commencement of this item, under or in relation to:
(a) Part VC or VI of the
Trade Practices Act 1974 ; or(b) equivalent provisions of a law of a State or a Territory.
11
Regulations relating to professional standards laws Regulations made for the purposes of section 87AB of the
Trade Practices Act 1974 that were in force immediately before the commencement of this item have effect, after the commencement of this item, as if they had been made for the purposes of section 137 of that Act as amended by this Act.
12
General power for regulations to deal with transitional matters The Governor‑General may make regulations prescribing matters of a transitional, application or saving nature in relation to the amendments and repeals made by the Schedules to this Act.
The
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
103, 2010 | 13 July 2010 | |||
184, 2011 | 6 Dec 2011 | Schedule 3: | — | |
136, 2012 | 22 Sept 2012 | Schedule 2 (item 43): | — |
(a) Subsection 2(1) (item 4) of theCompetition and Consumer Legislation Amendment Act 2011 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Schedule 3 | Immediately
after the commencement of Schedule 5 to the | 1 January 2011 |
(b) Subsection 2(1) (item 33) of theStatute Law Revision Act 2012 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Schedule 2, item 43 | Immediately
after the commencement of Schedule 3 to the | 1 January 2011 |
am. = amended rep. = repealed rs. = repealed and substituted | |
Provision affected | How affected |
Item 36.................................. | am. No. 184, 2011 |
Item 50.................................. | am. No. 184, 2011 |
Note to item 54..................... | am. No. 184, 2011 |
Item 65.................................. | am. No. 184, 2011 |
Item 71.................................. | am. No. 184, 2011 |
Item 74.................................. | am. No. 184, 2011 |
Item 90.................................. | am. No. 184, 2011 |
Item 96.................................. | am. No. 184, 2011; No. 136, 2012 |
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