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Thursday, 15 November 1973

The consumer protection provisions are to be found, for the most part, in Part V. Some of these provisions are expressly limited to transactions involving consumers. The meaning of a consumer is dealt with by sub-clause (4) of clause 4. Unless a contrary intention appears, that provision excludes a person who uses the goods or services in question for the purpose of, or in the course of, trade or business or for a public purpose; or a person who acquires goods for the purpose of resale. The consumer protection provisions do not necessarily displace State legislation in the same field. Clause 74 expressly states that Part V is not intended to exclude or limit the concurrent operation of any law of a State or Territory. The Bill recognises that in many consumer protection matters there is a need for a national approach, and that the effectiveness of State laws is necessarily limited. Division 1 of Part V prohibits a number of unfair practices. Clause 52 prohibits misleading or deceptive conduct- and does so in general terms. It is important that there should be such a provision if the law is not to be continually one step behind businessmen who resort to smart practices. Clause 52 overlaps the operation of some of the other more specific provisions. I point out in this connection that a breach of a specific provision exposes the person concerned to a penalty, whereas a breach of the more general provisions in clause 52 gives rise to a right to an injuction only. Clause 53 prohibits a number of specific forms of false representations with respect to goods and services. Clause 54 prohibits the offering of prizes in connection with the promotion of goods and services when there is no intention of actually providing the prizes.

Clause 55 prohibits misleading conduct covered by the Paris Convention for the Protection of Industrial Property as revised at Stockholm on 14 July 1967. This Convention covers 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 goods. Clause 55 does not come into operation until the Convention enters into force for Australia. I expect that this will be soon.

Clause 56 prohibits the practice known as bait advertising. This is the practice in accordance with which a bargain is advertised and in point of fact the bargain either does not exist or is available for a very short time. The purpose of such advertising is mainly to attract a customer into a store.

The practice of referral selling is prohibited by clause 57. This is the practice by which a supplier induces a customer to acquire goods or services by indicating that the consumer, after paying for the goods or services- and I stress that is after such payment- will get rebates or commissions on subsequent sales by the supplier to other persons whose names are provided by the consumer or who view the work done for the consumer by the supplier. Clause 58 prohibits the acceptance of payment without intention to supply as ordered. Clause 59 prohibits the making of misleading statements about home-operated businesses.

Clause 60 prohibits coercive conduct by salesmen or debt collectors at a person's place of residence. Pyramid selling is a practice that has been a cause of much concern in recent years. This practice is prohibited by clause 61.1 have already mentioned that the Bill will enable consumer standards to be prescribed and made mandatory. Provision is made in this connection for product safety standards and product information standards. A prescribed product safety standard will require compliance with safety standard requirements. A prescribed product information standard will require the disclosure of information relating to matters such as the performance, composition, contents, design, construction, finish or packaging of goods. The provisions relating to both kinds of standards are to be found in clauses 62 and 63.

Clause 64 deals with the practice of unsolicited goods and unsolicited directory entries. The clause prohibits the assertion of a right to payment for such goods or directory entries. This provision does not apply if the person against whom a right to payment for goods is asserted, ordinarily uses like goods in the course of his profession, business, trade or occupation. Under clause 65, a person who has received unsolicited goods is to be relieved of liability for loss or damage to the goods, other than loss or damage resulting from the doing by him of a wilful and unlawful act.

Division 2 of Part V provides for a number of conditions and warranties designed to protect the consumer to apply and to be incapable of being excluded. These provisions are limited to consumer transactions. I have already referred to the limited meaning of consumer under subclause (4) of clause 4.

Clause 67(1) prevents the inclusion in consumer contracts of provisions rendering Australian law inapplicable to contracts, the proper law of which is otherwise Australian. Sub-clause (2) of this clause prevents the substitution of provisions in the law of another country for provisions in Division 2. Clause 68 renders void a term of a consumer contract that purports to exclude, restrict or modify the application of Division 2. Clause 69 provides for certain conditions as to title, encumbrances and quiet possession to be implied in every consumer contract. Clause 70 implies certain conditions in consumer contracts for the supply of goods by description. Clause 71 implies certain undertakings in consumer contracts as to quality or fitness. Clause 72 implies certain conditions in consumer contracts for the supply of goods by reference to sample. Clause 73 implies certain conditions in consumer contracts for the supply of services.

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