Unordered Goods and Services Act 1973 (Qld)

155 ANNO VICESIMO SECUNDO ELIZABE T H A E S C N AE R EGINAE No. 20 of 1973 An Act relating to the sending of unordered goods, the making of charges for directory entries and the rendering of certain unrequested services and for other purposes [ASSENTED TO 13TH APRIL, 1973] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title. This Act may be cited as the Unordered Goods and Services Act 1973. 2. Commencement . This Act shall come into operation on a date to be fixed by proclamation. 3. Interpretation . (1) In this Act, unless the contrary intention appears- directory entry " means an entry in a directory or other similar publication relating to a person or relating to the trade, business, profession or calling of a person but does not include an entry in a newspaper or periodical that is published in good faith as a newspaper. or periodical at regular intervals;

156 Unordered Goods and Services Act 1973, No. 20 " prescribed directory or prescribed publication " means a directory or other similar publication for the time being prescribed as a directory or publication for the purposes of subsection (4); " prescribed publisher " means a person for the time being prescribed as a publisher for the purposes of subsection (4); " prescribed service " means a service for the time being prescribed as being a service to which this Act applies; recipient " in relation to unordered goods means the person to whom those goods were sent by the sender; send" includes deliver; " sender " in relation to unordered goods means the person who sent those goods whether from a place within or without the State and includes a person on whose behalf those goods were sent and a person claiming through or under that first-mentioned or second-mentioned person; " unordered goods " means goods that have been sent whether from a place within or without the State by a person in the course of a trade or business to a person within the State with a view to that person acquiring or hiring those goods or an interest in those goods where that person has not requested that the goods be so sent to him. (2) For the purposes of the definition of " unordered goods ", where goods of a kind similar to the goods that a person has requested be sent to him are sent with a view to satisfying that request, those goods are not for that reason alone unordered goods. (3) For the purposes of this Act, a person shall be deemed not to have requested that goods be sent to him if the request was made on or constituted by a form provided by or that appears to have been provided by the sender of the goods and the form or any part of the form or any document of which the form is a part directly or indirectly relates to, affects or evidences the creation of rights or obligations of the first- mentioned person other than rights or obligations relating to goods described in the form. (4) This Act does not apply to or in relation to- (a) a contract or agreement for the making of a directory entry-- (i) in a directory or other similar publication published or to be published by or under the authority of the Postmaster- General for the Commonwealth or by or under the authority of a prescribed publisher; or (ii) in a prescribed directory or prescribed publication; or (b) the assertion of a right to payment of a charge or fee under such a contract or agreement. 4. Effect of sending tr. _;oods. (1) Subject to subsection (2), where after the commencement of t' is Act a recipient receives unordered goods, the goods shall, upon the expiration of the relevant by operation of this section, become the propTrty of the recipient freed and. , discharged from all liens and charges of a . ,ription.

Unordered Goods and Services Act 1973, No. 20 157 (2) Subsection (1) does not apply to or in relation to unordered goods- (a) of which the recipient has at any time during the relevant period unreasonably refused to permit the sender or the owner of the goods to take possession; (b) of which the sender or the owner of the goods has within the relevant period taken possession; or (c) that were received by the recipient in circumstances in which the recipient knew, or might reasonably be expected to have known, that the goods were not intended for him. (3) In this section " relevant period " means- (a) where the recipient of the unordered goods gives notice with respect to the goods to the sender in accordance with subsection (4) the period of one month next following the day on which the notice is given or the period of three months next following the day on which the recipient received the goods, whichever first expires; and (b) in any other case, the period of three months next following the day on which the recipient received the goods. (4) A notice under subsection (3) shall be in writing and shall- (a) state the name and address of the recipient of the goods; (b) state the address at which possession may be taken of the goods if it is an address other than that of the recipient; and (c) contain a statement to the effect that the goods are unordered goods. 5. Assertion of right to payment for unordered goods. (1) A person shall not assert a right to payment from a recipient for unordered goods. Penalty: $500. (2) In proceedings for an offence that is a contravention of subsection (1) without limiting the generality of that subsection- (a) the receipt by a recipient of a prescribed document relating to unordered goods that was sent by or on behalf of a person shall be deemed to be an assertion by that person of a right to payment from the recipient for the goods; and (b) a prescribed document purporting to have been sent by or on behalf of a person shall be deemed to have been sent by that person unless the contrary is proved. (3) It is a defence to a prosecution for a contravention of subsection (1) if the defendant proves- (a) that his contravention was due to his believing on reasonable grounds that a request had been made by the recipient of the unordered goods that the goods be sent to him; (b) that if the goods had been sent as a result of that request, they would not have been unordered goods; and (c) in a case where he became aware or ought on reasonable grounds to have become aware after sending the goods that such a request had not been made, that he informed that recipient to the effect that the recipient was not liable to pay for the goods.

158 Unordered Goods and .Services Act 1973, No. 20 (4) In this section " prescribed document " in relation to unordered goods means a writing that asserts or implies that payment should be made for the goods or that sets out the price of the goods. 6. Liability of recipient . Notwithstanding any Act or law to the contrary, the recipient of unordered goods is not liable to make any payment for the goods and is not liable for any loss of or injury to the goods other than loss or injury arising from his wilful and unlawful disposal , wilful and unlawful destruction or wilful and unlawful damaging of the goods during the relevant period as defined in section 4. 7. Directory entries a nd prescribed services . ( 1) Subject to section 9, a person is not liable to make any payment and is entitled to recover a payment made by him in full or part satisfaction of a charge or fee under a contract or agreement to or in relation to which this subsection applies unless there has been signed by that person , or a person authorized by him in that behalf, a note complying with this section and that first-mentioned person has been supplied with a copy of the note as signed by him or on his behalf. (2) Subsection ( I) applies to and in relation to a contract or agreement for the making of a directory entry or the rendering of a prescribed service if the offer to enter into the contract or agreement was made or accepted in the State or at the time the offer was made or accepted a party to the contract or agreement was resident or carrying on business in the State. (3) In order to comply with this section a note referred to in subsection (1) shall, in relation to a contract or agreement for the making of a directory entry, specify- (a) the particulars of the entry inserted or proposed to be inserted; (b) the amount of the charge or fee or the basis on which the charge or fee to be charged is or is to be calculated; (c) the name of the directory or other similar publication in relation to an entry in which the charge or fee is payable; and (d) the name and address of the person publishing the directory or other similar publication. (4) In order to comply with this section a note referred to in subsection ( 1) shall , in relation to a contract or agreement for the rendering of a prescribed service, specify- (a) the particulars of the service rendered or proposed to be rendered; and (b) the amount of the charge or fee for the service or the basis on which the charge or fee to be charged is or is to be calculated. 8. Asserting a right to payment for directory entries or prescribed services . (1) A person shall not assert a right to payment of any charge or fee for the making of a directory entry or the rendering of a prescribed service , whether made or to be made or rendered or to be rendered by him or another person and whether made or to be made or rendered or to be rendered wholly or partly in the State , unless he has reasonable cause to believe ( proof of which shall lie upon him ) that a note complying with section 7 has been signed by or on behalf of the person against or in relation to whom that right is asserted, Penalty: $500.

Unordered Goods and Services Act 1973, No. 20 159 (2) In proceedings for an offence that is a contravention of subsection (1) without limiting the generality of that subsection, the receipt by a person of a prescribed document relating to a directory entry or prescribed service that was sent or purports to have been sent by or on behalf of the person who made or proposes to make that entry or rendered or proposes to render that service shall be deemed to be an assertion by that person of a right to payment from the first-mentioned person of a charge or fee for the making of the directory entry or the rendering of the prescribed service as the case may be. (3) In this section " prescribed document " in relation to a directory entry or prescribed service means a writing that asserts or implies that the payment of a charge or fee should be made. for the making of the directory entry or the rendering of the prescribed service or that sets out the price for the making of the directory entry or rendering of the prescribed service. 9. Sections 7 and 8 not to apply to certain matters . Sections 7 and 8 do not apply to or in relation to- (a) the making of a payment or the assertion of a right to payment pursuant to a contract or agreement relating to the making of a directory entry or the rendering of a prescribed service- (i) made or entered into before the commencement of this Act; or (ii) arising from the acceptance of an offer made before the commencement of this Act; or (b) the making of a payment or the assertion of a right to payment pursuant to a contract or agreement relating to the rendering of a service that became a prescribed service after the commencement of this Act being a contract or agreement- (i) made or entered into before the service became a prescribed service; or (ii) arising from the acceptance of an offer made before the service became a prescribed service. 10. Certain acts prohibited . (1) Any person who, whether within or without the State- (a) asserts an intention to bring legal proceedings to enforce payment for unordered goods, the making of a directory entry or the rendering of a prescribed service; (b) publishes or causes to be published the name of a person not liable to make payment for unordered goods, the making of a directory entry or the rendering of a prescribed service on a list or record of debtors or defaulters or asserts an intention of so doing; or (c) invokes any other collection procedure to enforce payment for unordered goods, the making of a directory entry or the rendering of a prescribed service or assert an intention so to do, unless he has reasonable cause to believe that he has a right to assert a right to payment for the unordered goods, the making of the directory entry or the rendering of the prescribed service is guilty of an offence. Penalty: $500.

160 Unordered Goods and Services ,act 1973, No. 20 (2) Subsection ( 1) applies to and in relation to the making of a directory entry and the rendering of a prescribed service the contract or agreement for which is a contract or agreement to or in relation to which subsection (I) of section 7 applies. 11. False orders . A person shall not make a request in the name of another person that goods be sent to that other person where, if those goods were sent to that other person, those goods would be unordered goods unless the first-mentioned person has the authority (proof of which lies on him) of that other person to make that request. Penalty: $200. 12. Certain unordered material not to be sent . (1) Any person who, for the purpose of encouraging any order for goods or the despatch of money sends or delivers, or causes to be sent or delivered, directly or indirectly whether from a place within or without the State to any other person within the State any obscene material or material in any form which advertises the existence or availability of any obscene material where that other person has not requested that such goods or goods of a kind similar to the goods be so sent or delivered to him is guilty of an offence. Penalty: For a first offence $400 or imprisonment for three months; for a second offence $800 or imprisonment for six months; and for a third or any subsequent offence $1,000 or imprisonment for one year. (2) For the purposes of this section- (a) The term " obscene material " includes- (i) any obscene book, paper, newspaper, or printed matter of any kind whatsoever, and any obscene writing, print, picture, photograph, photographic negative, photographic plate, photographic slide or film, transparency, lithograph, drawing or any form of recording; or (ii) any figure, representation, object or substance (liquid or solid) suggested for use in or in association with any form of sexual conduct; (b) The term " obscene " includes, but without limiting the generality of its meaning, emphasizing matters of sex or calculated to encourage depravity; (c) A recording shall be deemed to be obscene if the words or sounds capable of being reproduced therefrom are obscene; (d) A document that is composed of words, photographs or drawings, or any two of them, shall be taken to be a writing; (e) The term " money " includes bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests, for the payment of money. 13. Certain proceedings not to be cc iced or co. Proceedings shall not be commenced or continued before a court in the State to enforce payment for- (a) goods sent to a person outside the State where, had tl:e goods been sent to a person in the State, the goods would be unordered goods; or (b) making a directory entry or rendering outside the State a service which, if rendered in the State, would have been a prescribed service, unless in relation to the contract or agreement

Unordered Goods and Services Act 1973, No. 20 161 for making the directory entry or rendering the service a note complying with section 7 or a provision in the law of another State or Territory of the Commonwealth that corresponds to that section has been signed by or on behalf of the person against or in relation to whom the payment is sought to be enforced in the proceedings. 14. Offences by bodies corporate . Where a person charged with an offence against this Act is a body corporate, a person who is concerned or takes part in the management of the body corporate may be charged with a like offence and where the body corporate is convicted of the offence a person who is so concerned or takes part in the management of the body corporate may be convicted of the like offence unless he proves that the act or omission constituting the offence took place without his knowledge or consent. 15. Evidentiary . (1) In proceedings for an offence against this Act, where it appears to the court before which those proceedings are brought, from a perusal of a writing, that- (a) the writing is relevant to the facts in issue; and (b) tLe writing has been sent or published by a person whose name appears thereon. the writing may be admitted in evidence in those proceedings without formal proof of the sending or publishing thereof, or the authentication thereof and the writing shall be prima facie evidence that any statement, representation, assertion or implication contained therein- (c) was actually made; (d) was made on the day on which it is alleged that it was made; and (e) was made by the person whose name appears thereon as sending or publishing the writing. (2) In proceedings for an offence against this Act, an allegation that the defendant is a body corporate incorporated under the law of a State or Territory of the Commonwealth, not being this State, shall be prima facie evidence that the defendant is a body corporate incorporated under the law of that State or Territory. 16. Summary proceedings . Proceedings for offences against this Act shall be heard and determined in a summary way under The Justices Acts 1886 to 1968. 17. Regulations . (1) The Governor in Council may make such regulations not inconsistent with this Act as are necessary or expedient for the purpose of giving effect to the provisions and objects of this Act. (2) Without limiting the generality of subsection (1), the regulations .may- (a) prescribe a directory or other similar publication as a directory or publication to and in relation to which this Act does not apply; (b) prescribe a publisher as a publisher to and in relation to whom this Act does not apply; 6

162 Unordered Goods and Services Act 1973, No. 20 (c) prescribe a service as a service to which this Act applies; and (d) provide for and prescribe penalties not exceeding in each case $200 for a breach of a provision of the regulations.