Australian Consumer Law (Cth)
Contained in Schedule 2 of the Competition and Consumer Act 2010
Misleading or deceptive conduct
Chapter 1 - Introduction
Section 4 - Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation with respect to any future
matter (including the doing of, or the refusing to do, any act);
and
(b) the person does not have reasonable grounds for making the
representation;
the representation is taken, for the purposes of this Schedule, to be
misleading.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation made with respect to a
future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable
grounds for making the representation, unless evidence is adduced
to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the
contrary is adduced, the person who made the representation
is taken to have had reasonable grounds for making the
representation; or
(b) have the effect of placing on any person an onus of proving
that the person who made the representation had reasonable
grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a
reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(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.
Part 2-1 Misleading or deceptive conduct
Section 18 - Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3 1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 5 3.
Section 19 - Application of this Part to information providers
(1) This Part does not apply to a publication of matter by an
information provider if:
(a) in any case - the information provider made the publication
in the course of carrying on a business of providing
information; or
(b) if the information provider is the Australian Broadcasting
Corporation, the Special Broadcasting Service Corporation or
the holder of a licence granted under the Broadcasting
Services Act 1992 - the publication was by way of a radio or
television broadcast by the information provider.
(2) Subsection (1) does not apply to a publication of an advertisement.
(3) Subsection (1) does not apply to a publication of matter in
connection with the supply or possible supply of, or the promotion
by any means of the supply or use of, goods or services (the
publicised goods or services), if:
(a) the publicised goods or services were goods or services of a
kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate
that is related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised
goods or services; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies
goods or services of the same kind as the publicised goods or
services.
(4) Subsection (1) does not apply to a publication of matter in
connection with the sale or grant, or possible sale or grant, of, or
the promotion by any means of the sale or grant of, interests in land
(the publicised interests in land), if:
(a) the publicised interests in land were interests of a kind sold
or granted by the information provider or, if the information
provider is a body corporate, by a body corporate that is
related to the information provider; or
(b) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a person who
sells or grants interests of the same kind as the publicised
interests in land; or
(c) the publication was made on behalf of, or pursuant to a
contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or
grants interests of the same kind as the publicised interests in
land.
(5) An information provider is a person who carries on a business of
providing information.
(6) Without limiting subsection (5), each of the following is an
information provider:
(a) the holder of a licence granted under the Broadcasting
Services Act 1992;
(b) a person who is the provider of a broadcasting service under
a class licence under that Act;
(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.
Chapter 3 - Specific protections
Part 3-1 Unfair protections
Division 1 - False or misleading representations etc.
Section 29 False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the
supply or possible supply of goods or services or in connection
with the promotion by any means of the supply or use of goods or
services:
(a) make a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style
or model or have had a particular history or particular
previous use; or
(b) make a false or misleading representation that services are of
a particular standard, quality, value or grade; or
(c) make a false or misleading representation that goods are new;
or
(d) make a false or misleading representation that a particular
person has agreed to acquire goods or services; or
(e) make a false or misleading representation that purports to be
a testimonial by any person relating to goods or services; or
(f) make a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) make a false or misleading representation that goods or
services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) make a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(i) make a false or misleading representation with respect to the
price of goods or services; or
(j) make a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare
parts for goods; or
(k) make a false or misleading representation concerning the
place of origin of goods; or
(l) make a false or misleading representation concerning the
need for any goods or services; or
(m) make a false or misleading representation concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy (including a guarantee under
Division 1 of Part 3-2); or
(n) make a false or misleading representation concerning a
requirement to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State
or a Territory (other than an unwritten law).
Note 1: A pecuniary penalty may be imposed for a contravention of this
subsection.
Note 2: For rules relating to representations as to the country of origin of
goods, see Part 5-3.
(2) For the purposes of applying subsection (1) in relation to a
proceeding concerning a representation of a kind referred to in
subsection (1)(e) or (f), the representation is taken to be misleading
unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the
contrary is adduced, the representation is not misleading; or
(b) have the effect of placing on any person an onus of proving
that the representation is not misleading.
Section 30 False or misleading representations about sale etc. of land
(1) A person must not, in trade or commerce, in connection with the
sale or grant, or the possible sale or grant, of an interest in land or
in connection with the promotion by any means of the sale or grant
of an interest in land:
(a) make a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(b) make a false or misleading representation concerning the
nature of the interest in the land; or
(c) make a false or misleading representation concerning the
price payable for the land; or
(d) make a false or misleading representation concerning the
location of the land; or
(e) make a false or misleading representation concerning the
characteristics of the land; or
(f) make a false or misleading representation concerning the use
to which the land is capable of being put or may lawfully be
put; or
(g) make a false or misleading representation concerning the
existence or availability of facilities associated with the land.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition, or
the possible supply or acquisition, of interests in land.
Section 31 Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may
be, offered by the person or by another person, engage in conduct
that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the
employment; or
(b) any other matter relating to the employment.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
Section 32 Offering rebates, gifts, prizes etc.
(1) A person must not, in trade or commerce, offer any rebate, gift,
prize or other free item with the intention of not providing it, or of
not providing it as offered, in connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or
services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest
in land.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) If a person offers any rebate, gift, prize or other free item in
connection with:
(a) the supply or possible supply of goods or services; or
(b) the promotion by any means of the supply or use of goods or
services; or
(c) the sale or grant, or the possible sale or grant, of an interest in
land; or
(d) the promotion by any means of the sale or grant of an interest
in land;
the person must, within the time specified in the offer or (if no such
time is specified) within a reasonable time after making the offer,
provide the rebate, gift, prize or other free item in accordance with
the offer.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) Subsection (2) does not apply if:
(a) the person’s failure to provide the rebate, gift, prize or other
free item in accordance with the offer was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
(4) Subsection (2) does not apply to an offer that the person makes to
another person if:
(a) the person offers to the other person a different rebate, gift,
prize or other free item as a replacement; and
(b) the other person agrees to receive the different rebate, gift,
prize or other free item.
(5) This section does not affect the application of any other provision
of Part 2-1 or this Part in relation to the supply or acquisition, or
the possible supply or acquisition, of interests in land.
Section 33 Misleading conduct as to the nature etc. of goods
A person must not, in trade or commerce, engage in conduct that is
liable to mislead the public as to the nature, the manufacturing
process, the characteristics, the suitability for their purpose or the
quantity of any goods.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
3
Section 4 Misleading conduct as to the nature etc. of services
A person must not, in trade or commerce, engage in conduct that is
liable to mislead the public as to the nature, the characteristics, the
suitability for their purpose or the quantity of any services.
Note: A pecuniary penalty may be imposed for a contravention of this
section.
Section 35 Bait advertising
(1) A person must not, in trade or commerce, advertise goods or
services for supply at a specified price if:
(a) there are reasonable grounds for believing that the person
will not be able to offer for supply those goods or services at
that price for a period that is, and in quantities that are,
reasonable, having regard to:
(i) the nature of the market in which the person carries on
business; and
(ii) the nature of the advertisement; and
(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person who, in trade or commerce, advertises goods or services
for supply at a specified price must offer such goods or services for
supply at that price for a period that is, and in quantities that are,
reasonable having regard to:
(a) the nature of the market in which the person carries on
business; and
(b) the nature of the advertisement.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
Section 36 Wrongly accepting payment
(1) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance,
the person intends not to supply the goods or services.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance,
the person intends to supply goods or services materially different
from the goods or services in respect of which the payment or other
consideration is accepted.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in trade or commerce, accept payment or other
consideration for goods or services if, at the time of the acceptance:
(a) there are reasonable grounds for believing that the person
will not be able to supply the goods or services:
(i) within the period specified by or on behalf of the person
at or before the time the payment or other consideration
was accepted; or
(ii) if no period is specified at or before that time - within a
reasonable time; and
(b) the person is aware or ought reasonably to be aware of those
grounds.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) A person who, in trade or commerce, accepts payment or other
consideration for goods or services must supply all the goods or
services:
(a) within the period specified by or on behalf of the person at or
before the time the payment or other consideration was
accepted; or
(b) if no period is specified at or before that time - within a
reasonable time.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(5) Subsection (4) does not apply if:
(a) the person’s failure to supply all the goods or services within
the period, or within a reasonable time, was due to the act or
omission of another person, or to some other cause beyond
the person’s control; and
(b) the person took reasonable precautions and exercised due
diligence to avoid the failure.
(6) Subsection (4) does not apply if:
(a) the person offers to supply different goods or services as a
replacement to the person (the customer) to whom the
original supply was to be made; and
(b) the customer agrees to receive the different goods or services.
(7) Subsections (1), (2), (3) and (4) apply whether or not the payment
or other consideration that the person accepted represents the
whole or a part of the payment or other consideration for the
supply of the goods or services.
Section 37 Misleading representations about certain business activities
(1) A person must not, in trade or commerce, make a representation
that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of
any business activity that the person has represented as one
that can be, or can be to a considerable extent, carried on at
or from a person’s place of residence.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, make a representation
that:
(a) is false or misleading in a material particular; and
(b) concerns the profitability, risk or any other material aspect of
any business activity:
(i) that the person invites (whether by advertisement or
otherwise) other persons to engage or participate in, or
to offer or apply to engage or participate in; and
(ii) that requires the performance of work by other persons,
or the investment of money by other persons and the
performance by them of work associated with the
investment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
Section 38 Application of provisions of this Division to information
providers
(1) Sections 29, 30, 33, 34 and 37 do not apply to a publication of
matter by an information provider if:
(a) in any case - the information provider made the publication
in the course of carrying on a business of providing
information; or
(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.
Unconscionable conduct
Part 2-2 Unconscionable conduct
Section 20 Unconscionable conduct within the meaning of the unwritten law
(1) A person must not, in trade or commerce, engage in conduct that is
unconscionable, within the meaning of the unwritten law from time
to time.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) This section does not apply to conduct that is prohibited by
section 21 or 22.
Section 21 Unconscionable conduct
(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
(the consumer), 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.
Section 22 Unconscionable conduct in business transactions
(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
(the business 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 (the small 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.
Unfair contract terms
Part 2-3 Unfair contract terms
Section 23 Unfair terms of consumer contracts
(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.
Section 24 Meaning of unfair
(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.
Section 25 Examples of unfair terms
(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
Section 26 Terms that define main subject matter of consumer contracts etc.
are unaffected
(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.
Section 27 Standard form contracts
(1) If a party to a proceeding alleges that a contract is a standard form
contract, it is presumed to be a standard form contract unless
another party to the proceeding proves otherwise.
(2) In determining whether a contract is a standard form contract, a
court may take into account such matters as it thinks relevant, but
must take into account the following:
(a) whether one of the parties has all or most of the bargaining
power relating to the transaction;
(b) whether the contract was prepared by one party before any
discussion relating to the transaction occurred between the
parties;
(c) whether another party was, in effect, required either to accept
or reject the terms of the contract (other than the terms
referred to in section 26(1)) in the form in which they were
presented;
(d) whether another party was given an effective opportunity to
negotiate the terms of the contract that were not the terms
referred to in section 26(1);
(e) whether the terms of the contract (other than the terms
referred to in section 26(1)) take into account the specific
characteristics of another party or the particular transaction;
(f) any other matter prescribed by the regulations.
Section 28 Contracts to which this Part does not apply
(1) This Part does not apply to:
(a) a contract of marine salvage or towage; or
(b) a charterparty of a ship; or
(c) a contract for the carriage of goods by ship.
(2) Without limiting subsection (1)(c), the reference in that subsection
to a contract for the carriage of goods by ship includes a reference
to any contract covered by a sea carriage document within the
meaning of the amended Hague Rules referred to in section 7(1) of
the Carriage of Goods by Sea Act 1991.
(3) This Part does not apply to a contract that is the constitution
(within the meaning of section 9 of the Corporations Act 2001) of
a company, managed investment scheme or other kind of body.
Consumer guarantees
Part 3-2 Consumer transaction
Division 1 - Consumer guarantees
Subdivision A - Guarantees relating to the supply of goods
Section 51 Guarantee as to title
(1) If a person (the supplier) supplies goods to a consumer, there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer.
(2) Subsection (1) does not apply to a supply (a supply of limited title) if an intention that the supplier of the goods should transfer only such title as the supplier, or another person, may have:
(a) appears from the contract for the supply; or
(b) is to be inferred from the circumstances of that contract.
(3) This section does not apply if the supply is a supply by way of hire or lease.
Section 52 Guarantee as to undisturbed possession
(1) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that the consumer has the right to undisturbed possession of the goods.
(2) Subsection (1) does not apply to the extent that the consumer’s undisturbed possession of the goods may be lawfully disturbed by a person who is entitled to the benefit of any security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply.
(3) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that the following persons will not disturb the consumer’s possession of the goods:
(c) the supplier;
(d) if the parties to the contract for the supply intend that the supplier should transfer only such title as another person may have—that other person;
(e) anyone claiming through or under the supplier or that other person (otherwise than under a security, charge or encumbrance disclosed to the consumer before the consumer agreed to the supply).
(4) This section applies to a supply by way of hire or lease only for the period of the hire or lease.
53 Guarantee as to undisclosed securities etc.
(1) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is not a supply of limited title;
there is a guarantee that:
(c) the goods are free from any security, charge or encumbrance:
(i) that was not disclosed to the consumer, in writing, before the consumer agreed to the supply; or
(ii) that was not created by or with the express consent of the consumer; and
(d) the goods will remain free from such a security, charge or encumbrance until the time when the property in the goods passes to the consumer.
(2) A supplier does not fail to comply with the guarantee only because of the existence of a floating charge over the supplier’s assets unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.
Note: Section 339 of the Personal Property Securities Act 2009 affects the meaning of the references in this subsection to a floating charge and a fixed charge.
(3) If:
(a) a person (the supplier) supplies goods to a consumer; and
(b) the supply is a supply of limited title;
there is a guarantee that all securities, charges or encumbrances known to the supplier, and not known to the consumer, were disclosed to the consumer before the consumer agreed to the supply.
(4) This section does not apply if the supply is a supply by way of hire or lease.
54 Guarantee as to acceptable quality
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(2) Goods are of acceptable quality if they are as:
(a) fit for all the purposes for which goods of that kind are commonly supplied; and
(b) acceptable in appearance and finish; and
(c) free from defects; and
(d) safe; and
(e) durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3) The matters for the purposes of subsection (2) are:
(a) the nature of the goods; and
(b) the price of the goods (if relevant); and
(c) any statements made about the goods on any packaging or label on the goods; and
(d) any representation made about the goods by the supplier or manufacturer of the goods; and
(e) any other relevant circumstances relating to the supply of the goods.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
55 Guarantee as to fitness for any disclosed purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
56 Guarantee relating to the supply of goods by description
(1) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.
57 Guarantees relating to the supply of goods by sample or demonstration model
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that:
(c) the goods correspond with the sample or demonstration model in quality, state or condition; and
(d) if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and
(e) the goods are free from any defect that:
(i) would not be apparent on reasonable examination of the sample or demonstration model; and
(ii) would cause the goods not to be of acceptable quality.
(2) If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.
58 Guarantee as to repairs and spare parts
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will take reasonable action to ensure that facilities for the repair of the goods, and parts for the goods, are reasonably available for a reasonable period after the goods are supplied.
(2) This section does not apply if the manufacturer took reasonable action to ensure that the consumer would be given written notice, at or before the time when the consumer agrees to the supply of the goods, that:
(a) facilities for the repair of the goods would not be available or would not be available after a specified period; or
(b) parts for the goods would not be available or would not be available after a specified period.
59 Guarantee as to express warranties
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.
(2) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the supplier will comply with any express warranty given or made by the supplier in relation to the goods.
Subdivision B - Guarantees relating to the supply of services
60 Guarantee as to due care and skill
Forthcoming
61 Guarantees as to fitness for a particular purpose etc.
Forthcoming
62 Guarantee as to reasonable time for supply
Forthcoming
63 Services to which this Subdivision does not apply
Forthcoming
Subdivision C - Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
Forthcoming
64A Limitation of liability for failures to comply with guarantees
Forthcoming
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