(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: acquire includes:
(a) in relation to goods—acquire by purchase or exchange or by taking on lease, on hire or on hire-purchase, (b) in relation to services—accept, and (c) in relation to an interest in land—acquire by purchase or exchange or by taking on lease, or in any other manner in which an interest in land may be acquired for valuable consideration. advisory committee means a committee appointed under section 25.advisory council means any of the councils established by Divisions 5–8 of Part 2.assisted person means a person granted legal assistance under section 13.authorised person means a person authorised by the Director-General.banning order means an order in force under section 30 or 31 prohibiting or restricting the supply of goods.business includes:
(a) a business not carried on for profit, and (b) a trade or profession. consumer has the meaning given by section 5.dangerous , in relation to goods, means likely to cause death or to cause injury to the body or health of a person, whether the death or injury is likely to be caused directly or indirectly and whether or not because of:
(a) a failure to include with or on the goods any instructions for their use, (b) the inclusion with or on the goods of instructions for the use of the goods that are inaccurate or inadequate, (c) a failure of the goods to function in the manner represented by the manufacturer or supplier, (d) the goods not being of the quality represented by the manufacturer or supplier, or (e) the necessity for, or possibility of, the use of the goods with other goods. Department means the Department of Fair Trading.Director-General means the Director-General of the Department.disposal , in relation to an interest in land, means disposal by sale, exchange or lease or by any other method by which an interest in land may be disposed of for valuable consideration.document includes any source of information, whether or not the information is available only after the source is subjected to electronic or other process.goods includes:
(a) ships, aircraft and other vehicles, (b) animals, including fish, (c) minerals, trees and crops, whether on, under or attached to land or not, (d) gas and electricity, and (e) any component part of, or accessory to, goods. interest , in relation to land, means:
(a) a legal or equitable estate or interest in the land, (b) a right of occupancy of the land, or of a building or part of a building erected on the land, conferred by shares, or by virtue of a contract to purchase shares, in a corporation that owns the land or the building, or (c) a right, power or privilege over, or in connection with, the land. investigator means an officer appointed by the Director-General under section 18 as an investigator.officer means:
(a) the Director-General, (b) a person appointed and employed under the as referred to in section 7 (1), Public Service Act 1979 (c) a member of the staff of a public authority whose services are used in accordance with section 7 (2), or (d) a person, body or organisation referred to in section 7 (3). price includes a charge of any description and the price of goods or services acquired by a person (whether or not by purchase) is the amount paid or payable for them or, if such an amount is not specified because acquisition of the goods or services is part only of a transaction for which a total amount is paid or payable, is:
(a) the lowest amount 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 (b) if they could not reasonably have been acquired separately from any supplier—their value at the time of the transaction. product information standard means a standard prescribed by regulations referred to in section 38.product safety standard means a standard prescribed by regulations referred to in section 26.Products Safety Committee means the Products Safety Committee established under section 24.public authority means a public or local authority constituted by an Act (whether or not a statutory body representing the Crown), a Government Department or an administrative office.published , in relation to a statement, includes:
(a) inserted in a newspaper or other publication, (b) publicly exhibited:
(i) in, on, over or under a building, vehicle, aircraft or ship, or in any other place (whether or not a public place and whether on land or water), or (ii) in the air in view of persons who are, or are passing, in or on a street or public place, (c) contained in a document sent or given to a person or thrown or left upon, or at, premises occupied by a person, (d) broadcast by radio or television, (e) reproduced electronically, and (f) made verbally. regulations means regulations made under section 92.send includes deliver.services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges and facilities that are, or are to be, provided, granted or conferred under:
(a) a contract for or in relation to:
(i) the performance of work (including work of a professional nature), whether with or without the supply of goods, (ii) the provision of gas or electricity or the provision of any other form of energy, (iii) the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction, or (iv) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (b) a contract of insurance, (c) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (d) a contract for or in relation to the lending of money, (e) a residential tenancy agreement (within the meaning of the ) under which the residential premises consist of a residential site in a residential park or a moveable dwelling on such a residential site (within the meaning of that Act), or Residential Parks Act 1998 (f) a service contract (within the meaning of the ), Retirement Villages Act 1999 but does not include rights or benefits being the supply of goods or the performance of work under a contract of service. statement includes a representation of any kind, whether made by means of:
(a) words, maps, plans or drawings, or (b) pictorial representation or design, or by any combination of those means. supplier means a person who, in the course of a business, supplies goods or services.supply includes:
(a) in relation to goods:
(i) supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase, and (ii) exhibit, expose or have in possession for the purpose of sale, exchange, lease, hire or hire-purchase or for any purpose of manufacture or trade, (b) in relation to services—provide, grant or render for valuable consideration, and (c) in relation both to goods and to services—donate for promotional purposes. this Act includes regulations.trade or commerce includes any business or professional activity.Tribunal means the Consumer, Trader and Tenancy Tribunal established by the. Consumer, Trader and Tenancy Tribunal Act 2001 unsolicited goods means goods sent to a person without any request for the goods being made by, or by the authority of, the person.unsolicited services means services supplied to a person without any request for the services being made by, or by the authority of, the person.(2) In this Act:
(a) a reference to the supply or acquisition of goods includes a reference to agreeing to supply or acquire goods, (b) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods upon a supply of the goods, (c) a reference to the supply or acquisition of services includes a reference to agreeing to supply or acquire services, (d) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with services, (e) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with goods, (f) a reference to goods or services includes a reference to goods and services, (g) a reference to the disposal or acquisition of an interest in land includes a reference to agreeing to dispose of or acquire such an interest, whether or not the agreement is in writing or evidenced by writing, and (h) a reference to the disposal or acquisition of an interest in land includes a reference to the disposal or acquisition of such an interest together with goods. (3) For the purposes of this Act:
(a) the obtaining of credit by a person in connection with the acquisition of goods or services by the person is an acquisition by the person of services, and (b) any amount by which the price of the goods or services is increased because credit was obtained is the price of the services represented by the obtaining of credit.
(1) The Director-General may grant an application made under section 12 if:
(a) the Director-General is satisfied that the applicant has reasonable grounds for bringing, or being a party to, the proceedings to which the application relates, (b) the Director-General is of the opinion that it is desirable, in the general interests of consumers or of any class of consumers, that assistance should be granted, and (c) (d) the Director-General has received the written approval of the Minister to grant the assistance applied for.
(1) If proceedings have been brought in a case to which a solicitor has been assigned under section 14, the solicitor shall, as soon as practicable after the assignment and before taking any other step in the proceedings:
(a) serve on the other party or parties to the proceedings, and (b) file in the court in which the proceedings are pending, a notice to the effect that he or she is undertaking the conduct of the case. (2) If a notice is filed under subsection (1):
(a) the proceedings are stayed for a period of 14 days, and (b) unless otherwise ordered by the court—time fixed for the doing of any act or taking any step in the proceedings does not run during that period.
(1) If a person is granted assistance under section 13, the court shall, in making an order for costs:
(a) in favour of the assisted person—make the same order (except against another assisted person) as the court would have made in favour of the assisted person if the person had not been an assisted person, or (b) against the assisted person—make the same order (except in favour of another assisted person) as the court would have made against the assisted person if the person had not been an assisted person.
(1) The Director-General may, by order in writing, appoint an officer as an investigator for the purposes of this Act and of any other legislation administered by the Minister and shall provide the officer with a certificate of identification as an investigator.
(1) The powers conferred by this section may be exercised for the purposes of this Act and any other legislation administered by the Minister but may not be exercised for any other purpose.
(1) This section applies only to a person who is, on reasonable grounds, believed by the Director-General to be capable of giving information, producing documents or giving evidence in relation to:
(a) a possible contravention of this Act or any other legislation administered by the Minister, or (b) a matter that may lead to the reference of a question to the Products Safety Committee or an advisory committee.
(1) The Director-General, an authorised person or an investigator may inspect a document produced in response to a notice under section 20 or 23A and may make copies of, or take extracts from, the document.
(1) Except as provided by subsection (4), a person engaged in the administration of this Act shall not:
(a) in the course of that administration, disclose to another person so engaged any information or evidence given, or the contents of any document produced, in response to a notice under section 20 or 23A without informing the other person that the information or evidence was so given, or the document so produced, or (b) otherwise than in the course of that administration, disclose any such information, evidence or contents to any person without the written permission of the Minister given in relation to the disclosure. Maximum penalty: 20 penalty units.
(1) The Director-General may require a person who, in trade or commerce, published or caused to be published a statement promoting, or apparently intended to promote, the supply of goods or services or the sale or grant of an interest in land, to substantiate a claim or representation (express or implied) made in the statement.
(1) When a person, in trade or commerce, publishes or causes to be published a statement advertising goods or services for supply at a specified price, the statement is taken to include a representation that the person will be able to offer the goods or services for supply at the advertised price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.
(1) For the purpose of considering a question referred to it, the Products Safety Committee may, by notice in writing signed by the Chairperson or by a member of the Committee on behalf of the Chairperson:
(a) require any person to attend at a time and place specified in the notice and to give evidence before the Committee or a member of the Committee nominated by it for the purpose, or (b) require any person to produce, at a time and place specified in the notice, to the Committee or to a member of the Committee nominated by it for the purpose, any goods or documents described in the notice that are in the custody, or under the control, of the person and are relevant to the question.
(1) In this section: defect , in relation to goods, includes a dangerous characteristic of the goods.defective goods means goods that:
(a) do not comply with a product safety standard for the goods, (b) are the subject of a question referred to the Products Safety Committee or are proposed by the Minister or the Director-General to be the subject of such a question, (c) are the subject of a report of the Products Safety Committee on a question referred to it, or (d) are the subject of a banning order. (2) The Minister may make an order requiring a supplier of defective goods to do any one or more of the following:
(a) recall the goods in the manner, and within the period, specified in the order, (b) disclose to the public, or to a class of persons specified in the order, in the manner and within the period so specified, one or more of the following:
(i) the nature of any defect in the goods identified in the order, (ii) the circumstances in which the use of the goods is dangerous, or (iii) procedures for disposing of the goods, (c) notify the public, or a class of persons so specified, in the manner and within the period specified in the order, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:
(i) except where the order identifies a dangerous characteristic of the goods—repair the goods, (ii) replace the goods, (iii) refund to a person to whom the goods were supplied (whether by the supplier or by another person) the price of the goods, within the period specified in the order. (3) If an order so provides, where:
(a) the supplier undertakes to refund the price of the goods, and (b) a period of more than 12 months has elapsed since a person (whether or not the person to whom the refund is to be made) acquired the goods from the supplier, the amount of the refund may be reduced by an amount that is attributable to the use which a person has had of the goods and is calculated as specified in the order. (4) Sections 40 and 41 of the apply to an order made under subsection (2) as if it were a statutory rule to which those sections apply. Interpretation Act 1987
(1) A supplier shall not sell goods to which more than one price is appended at a price that is greater than the lower, or lowest, of the prices. Maximum penalty: 50 penalty units.
(1) The regulations may declare a scheme of a kind described in the regulations to be an unlawful scheme.
(1) A lay-by is the supply of goods on terms (express or implied) which provide that:
(a) the goods will not be delivered to the consumer until the whole of the price has been paid, and (b) the price is required or allowed to be paid by 3 or more instalments (for this purpose a deposit is considered to be an instalment).
(1) The supplier can cancel a lay-by if the consumer breaches a term of the lay-by (for example, by being late with a payment).
(TPA s 79) (1) A person who:
(a) contravenes, (b) aids, abets, counsels or procures a person to contravene, (c) induces, or attempts to induce, a person whether by threats or promises or otherwise, to contravene, (d) is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of, or (e) conspires with others to contravene, a provision of this Act other than section 42 or 43 is guilty of an offence against this Act. (2) A person guilty of an offence against this Act for which a penalty is not otherwise provided is liable:
(a) in the case of a person other than a body corporate—to a penalty not exceeding 200 penalty units, or (b) in the case of a body corporate—to a penalty not exceeding 1,000 penalty units. (3) If an act or omission is both an offence against this Act and an offence under a law of the Commonwealth or a law in force elsewhere in Australia, a person convicted of an offence under that law is not liable to be convicted of the offence against this Act.
(1) Proceedings for an offence against this Act may be taken and prosecuted only by the Director-General or, in the name of the Director-General, by a person acting with the authority of the Director-General. (2) Proceedings for an offence against this Act (other than a breach of the regulations) shall be disposed of summarily before:
(a) a Local Court constituted by a Magistrate sitting alone, or (b) the Supreme Court in its summary jurisdiction.
(1) In this section: authorised officer means:
(a) the Director-General, (b) an investigator, or (c) a person appointed in writing by the Director-General as an authorised officer for the purposes of this section. (2) Where it appears to an authorised officer that any person has committed an offence prescribed for the purposes of this section, the authorised officer may serve a notice on the apparent offender to the effect that if it is not desired to have the matter determined by a court, the person served may pay to the Director-General within the time specified in the notice the amount of the penalty prescribed for the offence if dealt with under this section. (3) A notice under subsection (2) may be served personally or by post.
(1) In this section, licence means any licence, permit or other authority granted or issued (whether before or after the commencement of this section) under any legislation administered by the Minister, andlicensee means the holder of the licence, permit or authority.(2) If the Director-General is of the opinion that there are reasonable grounds to believe that:
(a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and (b) it is likely that the licensee will continue to engage in that conduct, and (c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently, the Director-General may, by notice served on the licensee, suspend the licence for a period of not more than 60 days specified in the notice, commencing on service of the notice. (3) A notice under subsection (2) has effect according to its terms, whether or not the licensee has been afforded an opportunity to be heard as to whether the licence should be suspended.
(TPA s 80) (1) Where, on the application of the Minister, the Director-General or any other person, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Part 3, 4, 5, 5A, 5B or 8, (b) attempting to contravene such a provision, (c) aiding, abetting, counselling or procuring a person to contravene such a provision, (d) inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene such a provision, (e) being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision, or (f) conspiring with others to contravene such a provision, the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) Without prejudice to the generality of subsection (1), an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):
(a) for a specified period, or (b) except on specified terms and conditions. (3) Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1).
(TPA s 82)
(TPA s 85)
(TPA s 87) (1A) A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to:
(a) the death of a person, or (b) personal injury to a person (including any pre-natal injury, any impairment of the person’s physical or mental condition and any disease). (1) Without limiting the generality of section 65, if, in a proceeding instituted under this Part, or for an offence against Part 3, 4, 5, 5B or 8, the Supreme Court finds that a person has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B or 8, the Court may, whether or not it grants an injunction under section 65 or makes an order under section 67 or 68, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the first-mentioned person wholly or in part for the loss or damage or will prevent or reduce the loss or damage. (2) Without limiting the generality of section 65, the Supreme Court may, on the application of a person who has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B or 8 or on the application of the Director-General in accordance with subsection (4) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, wholly or in part for the loss or damage or will prevent or reduce the loss or damage.
(TPA s 87A) (1) Where:
(a) proceedings have been commenced in the Supreme Court against a person for an offence against this Act, (b) an application has been made under section 65 or 66 for an injunction against a person in relation to a contravention of a provision of this Act, (c) an action has been commenced under section 68 (1) against a person in relation to a contravention of a provision of this Act, or (d) an application for an order under section 72 (2) or (4) has been or may be made against a person in relation to a contravention of a provision of this Act, the Court may, on the application of the Minister or the Director-General, make an order or orders specified in subsection (2) if the Court is satisfied that:
(e) it is necessary or desirable to do so for the purpose of preserving money or other property held by or on behalf of a person referred to in paragraph (a), (b), (c) or (d), as the case may be (in this section referred to as the relevant person ), if the relevant person is liable or may become liable under this Act to pay money by way of a fine, damages, compensation, refund or otherwise or to transfer, sell or return other property, and(f) it will not unduly prejudice the rights and interests of any other person. (2) The orders referred to in subsection (1) are:
(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed, (b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the relevant person or on behalf of an associate of the relevant person from paying all or any of the money, or transferring, or otherwise parting with possession of, the other property, to, or to another person at the direction or request of, the person on whose behalf the money or other property is held, (c) an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the relevant person or of an associate of the relevant person to a place outside the State, (d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the relevant person or of an associate of the relevant person to a place outside the State, and (e) an order appointing, where the relevant person is a natural person, a receiver or trustee of the property or of part of the property of the relevant person with such powers as are specified in the order.
(TPA ss 87B and 87C)
(1) A code of practice prescribed under section 75 may be amended by the regulations, in accordance with this section.
(1) If a person fails to comply with a request by the Director-General for the giving by the person of an undertaking under section 76, the Tribunal may, on the application of the Director-General and on being satisfied that there were grounds for requesting the undertaking, order the person:
(a) to act in a manner that would have been required, or (b) to refrain from acting in a manner that would have been prohibited, by the undertaking if it had been given. (2) If, on the application of the Director-General, the Tribunal is satisfied that a person has failed to observe an undertaking given by the person under section 76, the Tribunal may make an order under subsection (3).
(1) A person may apply to the Tribunal for an order under this section if:
(a) a prescribed code of practice applies in respect of the person, and (b) the application relates to a contravention or alleged contravention of the code of practice that has adversely affected the person, and (c) the application is made with the approval of the Director-General. (2) On an application under this section, the Tribunal may, if satisfied that a person has contravened a prescribed code of practice, order the person to do either or both of the following:
(a) discontinue the contravention, (b) take specified action to rectify the consequences of the contravention.
(1) The Tribunal has no jurisdiction to hear or determine an issue arising under an application made to it under this Part if:
(a) the issue is the subject of a dispute in proceedings before a court unless those proceedings have been stayed under this section, or (b) the issue has been decided by a court in proceedings in which the issue was in dispute.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed, for carrying out or giving effect to this Act.
(Section 24)
(Sections 25B, 25E, 25H, 25K, 25N)
(Section 91)