(TPA s 51A)
(1) For the purposes of this Part, where a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.(2) The onus of establishing that a person had reasonable grounds for making a representation referred to in subsection (1) is on the person.(3) Subsection (1) shall not be taken to limit by implication the meaning of a reference in this Part to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.
42 Misleading or deceptive conduct
(TPA s 52)
(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).
(TPA s 52A)
(1) A supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that is, in all the circumstances, unconscionable.(2) Without limiting the matters to which the Supreme Court may have regard for the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services, the Court may have regard to:(a) the relative strengths of the bargaining positions of the supplier and the consumer,(b) whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier,(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services,(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 supplier shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer only because the supplier 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 supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services to a consumer:(a) the Supreme Court shall 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 Act.(5) (Repealed)(6) A reference in this section to the supply or possible supply of goods includes 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.
(TPA s 53)
A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use,(b) falsely represent that services are of a particular standard, quality, value or grade,(c) falsely represent that goods are new,(d) falsely represent that a particular person has agreed to acquire goods or services,(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have,(f) represent that the person has a sponsorship, approval or affiliation the person does not have,(g) make a false or misleading representation concerning the price of goods or services,(h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods,(i) make a false or misleading representation concerning the place of origin of goods,(j) make a false or misleading representation concerning the need for any goods or services,(k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy,(l) make a false or misleading representation concerning a person’s rights or obligations under a residential tenancy agreement (within the meaning of the Residential Parks Act 1998) 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(m) make a false or misleading representation concerning a person’s rights or obligations under a village contract (within the meaning of the Retirement Villages Act 1999), or(n) make a false or misleading representation concerning a person’s rights or obligations under an occupation agreement (within the meaning of the Holiday Parks (Long-term Casual Occupation) Act 2002) under which the residential premises consist of a site in a holiday park (within the meaning of that Act).
44A Country of origin representations
(1) If:(a) a person makes a representation as to the country of origin of goods, and(b) the goods have been substantially transformed in that country, and(c) 50% or more of the cost of producing or manufacturing the goods is attributable to production or manufacturing processes that occurred in that country, and(d) the representation is not a representation referred to in subsection (2) or (3),the person does not contravene section 42 or 44 (i) by reason only of making the representation.(2) If:(a) a person makes a representation that goods are the produce of a particular country (whether the representation uses the words “product of”, “produce of” or any other grammatical variation of the word “produce”), and(b) the country was the country of origin of each significant ingredient or significant component of the goods, and(c) all, or virtually all, processes involved in the production or manufacture occurred in that country,the person does not contravene section 42 or 44 (i) by reason only of making the representation.(3) If:(a) a person makes a representation as to the country of origin of goods by means of a logo specified in the regulations made under subsection (4), and(b) the goods have been substantially transformed in the country represented by the logo as the country of origin of the goods, and(c) the prescribed percentage of the cost of producing or manufacturing the goods is attributable to production or manufacturing processes that occurred in that country,the person does not contravene section 42 or 44 (i) by reason only of making the representation.(4) The regulations may, in relation to a specified logo, prescribe a percentage in the range of 51% to 100% as the percentage applicable to the goods for the purposes of subsection (3) (c).(5) For the purposes of this section, goods are substantially transformed in a country if they undergo a fundamental change in that country in form, appearance or nature such that the goods existing after the change are new and different goods from those existing before the change.(6) Without limiting subsection (5), the regulations may prescribe:(a) changes (whether in relation to particular classes of goods or otherwise) that are not fundamental changes for the purposes of that subsection, and(b) examples (in relation to particular classes of goods or otherwise) of changes that are fundamental changes for the purposes of that subsection.(7) For the purposes of this section, the cost of producing or manufacturing goods is to be determined in accordance with the regulations.(8) If in any proceedings against a person for contravening section 42 or 44 (i) the person seeks to rely on a provision of this section or the regulations made under this section, the onus is on the person to establish the matters set out in the provision on which the person seeks to rely.
45 False representations and other misleading or offensive conduct in relation to land
(TPA s 53A)
(1) A person shall not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land:(a) represent that the person has a sponsorship, approval or affiliation the person does not have,(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is capable of being put or may lawfully be put or the existence or availability of facilities associated with the land, or(c) offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.(2) A person shall not use physical force or undue harassment or coercion in connection with the sale or grant, or the possible sale or grant, of an interest in land or the payment for an interest in land.(3) Nothing in this section shall be taken as implying that other provisions of this Act do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.
46 Misleading conduct in relation to employment
(TPA s 53B)
A person shall not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.
47 Cash price to be stated in certain circumstances
(TPA s 53C)
A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, make a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services unless the person also specifies the cash price for the goods or services.
(TPA s 54)
A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them or of not providing them as offered.
49 Certain misleading conduct in relation to goods
(TPA s 55)
A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
50 Certain misleading conduct in relation to services
(TPA s 55A)
A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.
(TPA s 56)
(1) A person shall not, in trade or commerce, advertise goods or services for supply at a specified price if there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.(2) A person who has, in trade or commerce, advertised goods or services for supply at a specified price shall offer the goods or services for supply at that price for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.(3) In a prosecution of a person under Part 6 in relation to a failure to offer goods or services to a person (in this subsection referred to as the customer) in accordance with subsection (2), it is a defence if it is established that:(a) the defendant offered to supply, or to procure another person to supply, goods or services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price, or(b) the defendant offered to supply immediately, or to procure another person to supply within a reasonable time, equivalent goods or services to the customer in a reasonable quantity and at the price at which the first-mentioned goods or services were advertised,and, in either case, where the offer was accepted by the customer, the defendant has so supplied, or procured another person to supply, goods or services.
51A Prohibition on mock auctions
(1) A person must not promote or conduct or assist in the promotion or conduct of an auction:(a) at which:(i) goods are sold to a person at a price lower than the highest bid for the goods, or(ii) part of the price for the sale of goods to a person is repaid or credited to the person or is stated to be so repaid or credited, or(b) at which the right to bid for goods is restricted or is stated to be restricted to persons who have bought or agreed to buy other goods, or(c) at which any goods or services are given away or offered as gifts.(2) Subsection (1) (a) does not apply if the lower price, repayment or credit is because of:(a) a defect that the person conducting the auction became aware of after the highest bid was made, or(b) damage sustained after the bid was made.(3) For the purposes of this section:(a) any bid stated to have been made at an auction is, in the absence of evidence to the contrary, taken to have been made and to have been a bid of the amount stated, and(b) a reference to the sale of goods to a person who has made a bid for them includes a reference to a purported sale of those goods to a person stated to have made a bid for them (whether or not that person exists), and(c) anything done in or about the place where an auction is held, if done in connection with the auction, is taken to be done at the auction whether or not it is done at the time of the auction or before or after the auction.(4) In this section:auction means any sale of goods at which some or all of the persons present compete for the purchase of goods, whether by way of increasing bids or by the offer of goods to be bid for at successively decreasing prices or otherwise.
stated in relation to an auction means stated by or on behalf of the person conducting the auction by way of an announcement made to the persons for the time being present at the auction.
(TPA s 57)
A person shall not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition of the goods or services is made, receive a rebate, commission or other benefit in return for giving the person the names of prospective customers or otherwise assisting the person to supply goods or services to other consumers, if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.
53 Accepting payment without intending or being able to supply as ordered
(TPA s 58)
A person shall not, in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance:(a) the person intends:(i) not to supply the goods or services, or(ii) to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted, or(b) there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time.
54 Misleading statements about certain business activities
(TPA s 59)
(1) A person shall not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from any place of residence.(2) Where a person, in trade or commerce, invites, whether by advertisement or otherwise, other persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the other persons of work, or the investment of money by the other persons and the performance by them of work associated with the investment, the inviter shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.
(TPA s 60)
A person shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.
57 Unsolicited credit and debit cards
(TPA s 63A)
(1) A person shall not send a prescribed card to another person except:(a) in pursuance of a request in writing by the person who will be under a liability to the person who issued the card in respect of the use of the card, or(b) in renewal or replacement of, or in substitution for:(i) a prescribed card of the same kind previously sent to that other person in pursuance of a request in writing by the person who was under a liability to the person who issued the card previously so sent in respect of the use of that card, or(ii) a prescribed card of the same kind previously sent to that other person and used for a purpose for which it was intended to be used.(2) Subsection (1) applies only in relation to the sending of a prescribed card by or on behalf of the person who issued the card.(3) A person shall not take any action that enables another person who has a credit card or a debit card to use the card as a debit card or a credit card, as the case may be, except in accordance with a request in writing by the other person.(4) In this section:article includes a token, card and document.
credit card means an article of a kind commonly known as a credit card or a similar article intended for use in obtaining cash, goods or services on credit, and includes an article of a kind commonly issued by persons carrying on business to customers or prospective customers of those persons for use in obtaining goods or services from those persons on credit.
debit card means an article intended for use by a person in obtaining access to an account held by the person for the purpose of withdrawing or depositing cash or obtaining goods or services.
prescribed card means a credit card, a debit card or an article that may be used as a credit card and a debit card.
58 Assertion of right to payment for unsolicited goods or services, or for making entry in directory
(TPA s 64)
(1) A person shall not, in trade or commerce, assert a right to payment from another person for unsolicited goods unless the person asserting the right has reasonable cause to believe that there is a right to payment.(2) A person shall not, in trade or commerce, assert a right to payment from another person for unsolicited services unless the person asserting the right has reasonable cause to believe that there is a right to payment.(3) A person shall not assert a right to payment from another person of a charge for the making in a directory of an entry relating to the other person, or to the profession, business, trade or occupation of the other person, unless the person asserting the right knows, or has reasonable cause to believe, that the other person has authorised the making of the entry.(4) A person is not liable to make any payment to another person, and is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person, in full or part satisfaction of a charge for the making of an entry in a directory unless the first-mentioned person has authorised the making of the entry.(5) For the purposes of this section, a person shall be taken to assert a right to payment from another person for unsolicited goods or unsolicited services, or of a charge for the making of an entry in a directory, if the first-mentioned person:(a) makes a demand for the payment or asserts a present or prospective right to the payment,(b) threatens to bring any legal proceedings with a view to obtaining the payment,(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,(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 stating the amount of the payment or setting out the price of the goods or services or the charge for the making of the entry, and the invoice or document does not contain a warning statement complying with subsection (5A).(5A) For the purposes of subsection (5) (e), a warning statement must:(a) be printed in upper case and a type not smaller than 18 point and be located at the top of the first page of the invoice or document, and(b) state “THIS IS NOT A BILL. YOU ARE NOT REQUIRED TO PAY ANY MONEY.”.(6) A person shall not be taken for the purposes of this section to have authorised the making of an entry in a directory unless:(a) a document authorising the making of the entry has been signed by, or with the authority of, the person,(b) the document specifies:(i) the name of the directory,(ii) the name and address of the person publishing the directory,(iii) particulars of the entry, and(iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated, and(c) a copy of the document has been given to the person before the right to payment of a charge for the making of the entry is asserted.(7) For the purposes of this section, an invoice or other 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 established.(8) In a proceeding against a person in respect of a contravention of this section:(a) in the case of a contravention constituted by asserting a right to payment from another person for unsolicited goods or unsolicited services—the burden lies on the defendant of proving that the defendant had reasonable cause to believe that there was a right to payment, or(b) in the case of a contravention constituted by asserting a right to payment from another person of a charge for the making of an entry in a directory—the burden lies on the defendant of proving that the defendant knew or had reasonable cause to believe that the other person had authorised the making of the entry.(9) In this section:directory includes any publication of a similar nature to a directory but does not include a newspaper published in good faith as a newspaper at regular intervals or a publication published, or to be published, by or under the authority of the Australian Telecommunications Commission.
making, in relation to an entry in a directory, means including, or arranging for the inclusion of, the entry.
58A Assertion of right to payment for unauthorised advertisements
(1) A person must not, in trade or commerce, assert a right to payment from another person for an advertisement relating to the other person, or the profession, business, trade or occupation of the other person placed in a publication, unless the person asserting the right knows, or has reasonable cause to believe, that the other person has authorised in writing the placement of the advertisement.(2) A person is not liable to make any payment to another person, and is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person, in full or part satisfaction of a charge for the placement of any such advertisement unless the first-mentioned person has authorised in writing the placement of the advertisement.(3) For the purposes of this section, a person is taken to assert a right to a payment if that 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 on a list of debtors or defaulters the name of the person against whom the right to payment is being asserted, 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 stating the amount of the payment or setting out the charge for the placing of the advertisement, and the invoice or document does not contain a warning statement complying with subsection (4).(4) For the purposes of subsection (3) (e), a warning statement must:(a) be printed in upper case and a type not smaller than 18 point and be located at the top of the first page of the invoice or document, and(b) state “THIS IS NOT A BILL. YOU ARE NOT REQUIRED TO PAY ANY MONEY.”.(5) For the purposes of this section, a person is taken to have given written authorisation for the placement of an advertisement only if:(a) a document authorising the placing of the advertisement has been signed by the person or by another person (not being the publisher) authorised by that person, and(b) a copy of the signed document has been given to the person before the right to payment of a charge is asserted, and(c) the document specifies:(i) the name of the publication, the area of circulation of the publication and the total number of copies of the publication to be circulated, and(ii) the name and business address of the publisher, and(iii) the name and address of the person on whose behalf the publication is published, and(iv) particulars of the advertisement, and(v) the date or dates on which the advertisement is to appear in the publication, and(vi) the amount of the charge for the placement of the advertisement or the basis on which the charge is, or is to be, calculated.(6) 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 the person unless the contrary is established.(7) This section does not apply to a publication that is published by a person if the person is:(a) a large proprietary company or a subsidiary of such a company or a listed corporation or a subsidiary of such a corporation, or(b) the publisher of any publication that has an audited circulation of 10,000 copies or more per week, or a person which is a related body corporate to such a person, or(c) a servant of the Crown, a body corporate which represents the Crown or a local council, or(d) any other person prescribed by the regulations.(8) In a proceeding against a person in respect of a contravention of this section, the burden lies on the defendant of proving that the defendant knew or had reasonable cause to believe that the other person had authorised the placement of the advertisement.(9) In this section:audited circulation in relation to a publication, means the circulation of that publication as confirmed by the most recent audit of the publication by a body approved by the Director-General.
large proprietary company has the same meaning as in the Corporations Act 2001 of the Commonwealth.
listed corporation has the same meaning as in the Corporations Act 2001 of the Commonwealth.
subsidiary has the same meaning as in the Corporations Act 2001 of the Commonwealth.
(10) This section does not apply in relation to the making of an entry in a directory.
59 Liability of recipient of unsolicited goods
(TPA s 65)
(1) A person to whom unsolicited goods are supplied by another person, in trade or commerce, is not liable to make any payment for the goods and is not liable for the loss of or damage to the goods other than loss or damage resulting from the doing of a wilful and unlawful act in relation to the goods during the period specified in subsection (4).(2) Subject to subsection (3), where a person sends, in trade or commerce, unsolicited goods to another person:(a) neither the person who sent the goods nor any person claiming under that person is entitled after the expiration of the period specified in subsection (4) to take action for the recovery of the goods from the person to whom the goods were sent, and(b) upon the expiration of that period the goods become, by force of this section, the property of the person to whom the goods were sent freed and discharged from all liens and charges of any description.(3) Subsection (2) does not apply to or in relation to unsolicited goods sent to a person if:(a) the person has at any time during the period specified in subsection (4) unreasonably refused to permit the sender or the owner of the goods to take possession of the goods,(b) the sender or the owner of the goods has within that period taken possession of the goods, or(c) the goods were received by the person in circumstances in which the person knew, or might reasonably be expected to have known, that the goods were not intended for the person.(4) The period referred to in subsections (1), (2) and (3) is:(a) if the person who receives the unsolicited goods gives notice with respect to the goods to the sender in accordance with subsection (5):(i) the period of 1 month next following the day on which the notice is given, or(ii) the period of 3 months next following the day on which the person received the goods,whichever first expires, and(b) in any other case—the period of 3 months next following the day on which the person received the goods.(5) A notice referred to in subsection (4) shall be in writing and shall:(a) state the name and address of the person who received 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 person, and(c) contain a statement to the effect that the goods are unsolicited goods.
60 Application of certain provisions to prescribed information providers
(TPA s 65A)
(1) Nothing in section 42, 44, 45, 49, 50 or 54 applies to a prescribed publication of matter by a prescribed information provider, other than:(a) a publication of matter in connection with:(i) the supply or possible supply of goods or services,(ii) the sale or grant, or possible sale or grant, of interests in land,(iii) the promotion by any means of the supply or use of goods or services, or(iv) the promotion by any means of the sale or grant of interests in land,where:(v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider, or(vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with:(A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind, or(B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind, or(b) a publication of an advertisement.(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:(a) in any case—the publication was made by the prescribed information provider in the course of carrying on a business of providing information, or(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)—the publication was by way of a radio or television broadcast by the prescribed information provider.(3) In this section:consortium has the same meaning as it has in Part IIIB of the Broadcasting and Television Act 1942 of the Commonwealth.
prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:
(a) a person to whom, or each of the members of a consortium to which, a licence has been granted under Part IIIB of the Broadcasting and Television Act 1942 of the Commonwealth,(b) the Australian Broadcasting Corporation, and(c) the Special Broadcasting Service.relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.
relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider.