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Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010

Schedule 2 Application of the Australian Consumer Law

   

Trade Practices Act 1974

1  Part XI

Repeal the Part, substitute:

Part XI Application of the Australian Consumer Law as a law of the Commonwealth

Division 1 Preliminary

130   Definitions

                   In this Part:

associate : a person (the first person ) is an associate of another person if:

                     (a)  the first person holds money or other property on behalf of the other person; or

                     (b)  if the other person is a body corporate—the first person is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001 ) of the other person.

Australian Consumer Law means Schedule 2 as applied under Subdivision A of Division 2 of this Part.

Chairperson has the same meaning as in subsection 4(1).

corporation has the same meaning as in subsection 4(1).

disclosure notice : see subsection 133D(3).

embargo notice : see subsection 135S(1).

embargo period for an embargo notice means the period specified in the embargo notice under paragraph 135S(3)(c) or (d).

enforcement order : see paragraph 139D(1)(b).

Federal Court means the Federal Court of Australia.

infringement notice means an infringement notice issued under subsection 134A(1).

infringement notice compliance period : see subsection 134F(1).

infringement notice provision : see subsection 134A(2).

inspector means a person who is appointed as an inspector under subsection 133(1).

listed corporation has the meaning given by section 9 of the Corporations Act 2001 .

member of the Commission has the same meaning as in subsection 4(1).

occupational liability : see subsection 137(5).

personal injury includes:

                     (a)  prenatal injury; and

                     (b)  impairment of a person’s physical or mental condition; and

                     (c)  disease;

but does not include an impairment of a person’s mental condition unless the impairment consists of a recognised psychiatric illness.

person assisting : see subsection 135D(2).

professional standards law : see subsection 137(4).

proposed ban notice : see subsection 132(1).

proposed recall notice : see subsection 132A(1).

reckless conduct : see subsection 139A(5).

recreational services : see subsection 139A(2).

search-related powers : see subsections 135A(1) and (2).

search warrant means a warrant issued or signed under section 135Z or 136.

smoking has the same meaning as in the Tobacco Advertising Prohibition Act 1992 .

state of mind , of a person, includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the person’s intention, opinion, belief or purpose.

tobacco product has the same meaning as in the Tobacco Advertising Prohibition Act 1992 .

130A   Expressions defined in Schedule 2

                   An expression has the same meaning in this Part as in Schedule 2.

Division 2 Application of the Australian Consumer Law as a law of the Commonwealth

Subdivision A Application of the Australian Consumer Law

131   Application of the Australian Consumer Law in relation to corporations etc.

             (1)  Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 of Schedule 2 by corporations.

Note:          Sections 5 and 6 of this Act extend the application of this Part (and therefore extend the application of the Australian Consumer Law as a law of the Commonwealth).

             (2)  Without limiting subsection (1):

                     (a)  section 22 of Schedule 2 also applies as a law of the Commonwealth in relation to:

                              (i)  a supply or possible supply of goods or services by any person to a corporation (other than a listed public company); or

                             (ii)  an acquisition or possible acquisition of goods or services from any person by a corporation (other than a listed public company); and

                     (b)  section 147 of Schedule 2 also applies as a law of the Commonwealth to, and in relation to, a corporation as a supplier referred to in that section; and

                     (c)  Division 2 of Part 5-1 of Schedule 2 also applies as a law of the Commonwealth to and in relation to a person if the other person referred to in section 219 of Schedule 2 is a corporation.

             (3)  The table of contents in Schedule 2 is additional information that is not part of this Act. Information in the table may be added to or edited in any published version of this Act.

131A   Division does not apply to financial services

             (1)  Despite section 131, this Division does not apply (other than in relation to the application of Part 5-5 of Schedule 2 as a law of the Commonwealth) to the supply, or possible supply, of services that are financial services, or of financial products.

             (2)  Without limiting subsection (1):

                     (a)  Part 2-1 of Schedule 2 and sections 34 and 156 of Schedule 2 do not apply to conduct engaged in in relation to financial services; and

                     (b)  Part 2-3 of Schedule 2 does not apply to, or in relation to:

                              (i)  contracts that are financial products; or

                             (ii)  contracts for the supply, or possible supply, of services that are financial services; and

                     (c)  if a financial product consists of or includes an interest in land—the following provisions of Schedule 2 do not apply to that interest:

                              (i)  section 30;

                             (ii)  paragraphs 32(1)(c) and (d) and (2)(c) and (d);

                            (iii)  paragraphs 50(1)(c) and (d);

                            (iv)  section 152;

                             (v)  subparagraphs 154(1)(b)(iii) and (iv) and (2)(b)(iii) and (iv);

                            (vi)  subparagraphs 168(1)(b)(iii) and (iv); and

                     (d)  sections 39 and 161 of Schedule 2 do not apply to:

                              (i)  a credit card that is part of, or that provides access to, a credit facility that is a financial product; or

                             (ii)  a debit card that allows access to an account that is a financial product.

131B   Division does not apply to interim bans imposed by State or Territory Ministers

                   Despite section 131, this Division does not apply to an interim ban that is not imposed by the Commonwealth Minister.

131C   Saving of other laws and remedies

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law, whether written or unwritten, of a State or a Territory.

             (2)  Section 73 of the Australian Consumer Law does not operate in a State or a Territory to the extent necessary to ensure that no inconsistency arises between:

                     (a)  that section; and

                     (b)  a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with that section.

             (3)  Despite subsection (1):

                     (a)  if an act or omission of a person is both:

                              (i)  an offence against this Part or the Australian Consumer Law; and

                             (ii)  an offence against a law of a State or a Territory; and

                     (b)  the person is convicted of either of those offences;

he or she is not liable to be convicted of the other of those offences.

             (4)  Except as expressly provided by this Part or the Australian Consumer Law, nothing in this Part or the Australian Consumer Law is taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part and the Australian Consumer Law had not been enacted.

Subdivision B Effect of other Commonwealth laws on the Australian Consumer Law

131D   Effect of Part VIB on Chapter 5 of the Australian Consumer Law

                   Chapter 5 of the Australian Consumer Law has effect subject to Part VIB.

131E   Application of the Legislative Instruments Act 2003

             (1)  The following instruments made under the Australian Consumer Law by the Commonwealth Minister are to be made by legislative instrument:

                     (a)  a determination under subsection 66(1) (display notices);

                     (b)  a notice under subsection 104(1) or 105(1) (safety standards);

                     (c)  a notice under subsection 109(1) or (2) (interim bans);

                     (d)  a notice under section 111 (extensions of interim bans);

                     (e)  a notice under section 113 (revocation of interim bans);

                      (f)  a notice under subsection 114(1) or (2) (permanent bans);

                     (g)  a notice under section 117 (revocation of permanent bans);

                     (h)  a notice under subsection 122(1) (recall notices);

                      (i)  a notice under subsection 134(1) or 135(1) (information standards).

             (2)  The following instruments made under the Australian Consumer Law are not legislative instruments:

                     (a)  an approval given under paragraph 106(5)(b) (approval to export);

                     (b)  an approval given under paragraph 118(5)(b) (approval to export);

                     (c)  a notice under subsection 128(3) (voluntary recalls);

                     (d)  a notice under subsection 129(1) or (2) (safety warning notices);

                     (e)  a notice under subsection 130(1) (announcement of results of an investigation);

                      (f)  a notice under subsection 223(1) or (2) (public warning notices).

             (3)  To avoid doubt, an instrument made under the Australian Consumer Law by a responsible Minister who is not the Commonwealth Minister, or a regulator that is not the Commission, is not a legislative instrument.

131F   Section 4AB of the Crimes Act does not apply

                   Section 4AB of the Crimes Act 1914 does not apply to any provision of this Part or the Australian Consumer Law.

131G   Application of the Criminal Code

Corporate criminal responsibility

             (1)  Part 2.5 of the Criminal Code does not apply to an offence against this Part or the Australian Consumer Law.

Mistake of fact defence

             (2)  Section 9.2 of the Criminal Code does not apply to an offence against Chapter 4 of the Australian Consumer Law.

Note:          Section 207 of the Australian Consumer Law provides a mistake of fact defence for offences under Chapter 4 of the Australian Consumer Law.

Division 3 Conferences for proposed bans and recall notices

Subdivision A Conference requirements before a ban or compulsory recall

132   Commonwealth Minister must issue a proposed ban notice

             (1)  The Commonwealth Minister must issue a proposed ban notice if the Commonwealth Minister proposes to impose an interim ban, or a permanent ban:

                     (a)  on consumer goods of a particular kind; or

                     (b)  on product related services of a particular kind.

             (2)  Subsection (1) does not apply in relation to an interim ban if the Commonwealth Minister has issued a notice under section 132J certifying that the ban should be imposed without delay.

             (3)  The proposed ban notice must:

                     (a)  be in writing; and

                     (b)  be published on the internet; and

                     (c)  set out a copy of a draft notice for the imposition of the interim ban or permanent ban; and

                     (d)  set out a summary of the reasons for the proposed imposition of the ban; and

                     (e)  invite any person who supplies, or proposes to supply:

                              (i)  consumer goods of that kind; or

                             (ii)  product related services of that kind;

                            to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed imposition of the ban.

             (4)  The period specified in the proposed ban notice under paragraph (3)(e):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (5)  A proposed ban notice is not a legislative instrument.

132A   Commonwealth Minister must issue a proposed recall notice

             (1)  The Commonwealth Minister must issue a proposed recall notice if the Commonwealth Minister proposes to issue a recall notice for consumer goods of a particular kind.

             (2)  Subsection (1) does not apply in relation to a recall notice if the Commonwealth Minister has issued a notice under section 132J certifying that the recall notice should be issued without delay.

             (3)  The proposed recall notice must:

                     (a)  be in writing; and

                     (b)  be published on the internet; and

                     (c)  set out a copy of a draft recall notice; and

                     (d)  set out a summary of the reasons for the proposed issue of the recall notice; and

                     (e)  invite any person who supplies, or proposes to supply, consumer goods of that kind to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the proposed issue of the recall notice.

             (4)  The period specified in the proposed recall notice under paragraph (3)(e):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (5)  A proposed recall notice is not a legislative instrument.

132B   Commonwealth Minister to be notified if no person wishes a conference to be held

             (1)  If no person notifies the Commission in accordance with a proposed ban notice, or a proposed recall notice, that the person wishes the Commission to hold a conference, the Commission must, in writing, notify the Commonwealth Minister of that fact.

             (2)  A notice under subsection (1) is not a legislative instrument.

132C   Notification of conference

             (1)  If one or more persons notify the Commission in accordance with a proposed ban notice, or a proposed recall notice, that they wish the Commission to hold a conference, the Commission must:

                     (a)  appoint a day, time and place for the holding of the conference; and

                     (b)  give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.

             (2)  The day appointed must be at least 5 days, but not more than 14 days, after the end of the period:

                     (a)  for a proposed ban notice—specified under paragraph 132(3)(e); or

                     (b)  for a proposed recall notice—specified under paragraph 132A(3)(e).

             (3)  A notice under paragraph (1)(b) is not a legislative instrument.

132D   Recommendation after conclusion of conference

             (1)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed imposition of an interim ban or permanent ban, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:

                              (i)  impose the ban in the same terms as the draft notice referred to in paragraph 132(3)(c); or

                             (ii)  impose the ban with such modifications to that notice as are specified by the Commission; or

                            (iii)  not impose the ban; and

                     (b)  cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.

             (2)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to the proposed issue of a recall notice, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the Commonwealth Minister:

                              (i)  issue the recall notice in the same terms as the draft recall notice referred to in paragraph 132A(3)(c); or

                             (ii)  issue the recall notice with such modifications to that draft recall notice as are specified by the Commission; or

                            (iii)  not issue the recall notice; and

                     (b)  cause a copy of the notice given under paragraph (a) to be given to each person who was present or represented at the conference.

             (3)  The Commonwealth Minister must:

                     (a)  have regard to a recommendation made under paragraph (1)(a) or (2)(a); and

                     (b)  if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision B Conference requirements after an interim ban is imposed

132E   Opportunity for a conference after an interim ban has been imposed by the Commonwealth Minister

             (1)  This section applies if:

                     (a)  an interim ban on consumer goods of a particular kind, or on product related services of a particular kind, is in force; and

                     (b)  the interim ban was imposed by the Commonwealth Minister; and

                     (c)  before the ban was imposed, the Commonwealth Minister published a notice under section 132J certifying that the interim ban should be imposed without delay.

             (2)  The Commonwealth Minister must, by written notice published on the internet, invite any person who supplied, or proposes to supply:

                     (a)  consumer goods of that kind; or

                     (b)  product related services of that kind;

to notify the Commission, in writing and within a period specified in the notice, if the person wishes the Commission to hold a conference in relation to the interim ban.

             (3)  The period specified in the notice under subsection (2):

                     (a)  must be a period of at least 10 days, or such longer period as the Commonwealth Minister specifies in the notice; and

                     (b)  must not commence before the day on which the notice is published.

             (4)  A notice under subsection (2) is not a legislative instrument.

132F   Notification of conference

             (1)  If one or more persons notify the Commission in accordance with a notice published under subsection 132E(2) that they wish the Commission to hold a conference, the Commission must:

                     (a)  appoint a day, time and place for the holding of the conference; and

                     (b)  give written notice to the Commonwealth Minister, and to each person who so notified the Commission, of that day, time and place.

             (2)  The day appointed must be at least 5 days, but not more than 14 days, after the end of the period specified in the notice under subsection 132E(2).

             (3)  A notice under paragraph (1)(b) is not a legislative instrument.

132G   Recommendation after conclusion of conference

             (1)  As soon as is practicable after the conclusion of a conference held under this Subdivision in relation to an interim ban, the Commission must:

                     (a)  by written notice given to the Commonwealth Minister, recommend that the interim ban remain in force, be varied or be revoked; and

                     (b)  cause a copy of the notice to be given to each person who was present or represented at the conference.

             (2)  The Commonwealth Minister must:

                     (a)  have regard to a recommendation made under paragraph (1)(a); and

                     (b)  if he or she decides to act otherwise than in accordance with the recommendation—the Commonwealth Minister must, by written notice published on the internet, set out the reasons for his or her decision.

Subdivision C Conduct of conferences

132H   Conduct of conferences

             (1)  At a conference held under Subdivision A or B of this Division:

                     (a)  the Commission must be represented by a member or members of the Commission who are nominated by the Chairperson; and

                     (b)  each person who notified the Commission in accordance with whichever of the following is applicable:

                              (i)  a proposed ban notice;

                             (ii)  a proposed recall notice;

                            (iii)  a notice under subsection 132E(2);

                            is entitled to be present or to be represented; and

                     (c)  any other person whose presence at the conference is considered by the Commission to be appropriate is entitled to be present or to be represented; and

                     (d)  the Commonwealth Minister is, or a person or persons nominated in writing by the Commonwealth Minister are, entitled to be present; and

                     (e)  the procedure to be followed must be as determined by the Commission.

             (2)  The Commission must cause a record of the proceedings at the conference to be kept.

             (3)  The Commission must, as far as is practicable, ensure that each person who is entitled to be present, or who is representing such a person, at the conference is given a reasonable opportunity at the conference to present his or her case and in particular:

                     (a)  to inspect any documents (other than a document that contains particulars of a secret formula or process) which the Commission proposes to consider for the purpose of making a recommendation after the conclusion of the conference; and

                     (b) to make submissions in relation to those documents.

Subdivision D Miscellaneous

132J   Interim ban and recall notice without delay in case of danger to the public

             (1)  If it appears to the Commonwealth Minister that consumer goods of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that:

                     (a)  an interim ban on consumer goods of that kind should be imposed without delay; or

                     (b)  a recall notice for consumer goods of that kind should be issued without delay.

             (2)  If it appears to the Commonwealth Minister that product related services of a particular kind create an imminent risk of death, serious illness or serious injury, he or she may, by written notice published on the internet, certify that an interim ban on services of that kind should be imposed without delay.

             (3)  If:

                     (a)  the Commonwealth Minister publishes a notice under subsection (1) or (2); and

                     (b)  action of any kind has been taken under Subdivision A of this Division in relation to the interim ban or recall notice, but no recommendation has been made under section 132D;

the Commonwealth Minister may impose the interim ban, or issue the recall notice, without regard to that action.

             (4)  A notice under subsection (1) or (2) is not a legislative instrument.

132K   Copy of notices under this Division to be given to suppliers

             (1)  If the Commonwealth Minister:

                     (a)  issues a proposed ban notice; or

                     (b)  issues a proposed recall notice; or

                     (c)  publishes a notice under subsection 132E(2); or

                     (d)  publishes a notice under subsection 132J(1) or (2);

he or she must cause a copy of the notice to be given to each person who, to the knowledge of the Commonwealth Minister, supplies the consumer goods, or the product related services, to which the notice relates.

             (2)  The copy must be given:

                     (a)  within 2 days after the publication or issue of the notice; or

                     (b)  if it is not practicable to give the copy within that period—as soon as practicable after the end of that period.

             (3)  A failure to comply with subsection (1) does not invalidate the notice.

Division 4 Enforcement

Subdivision A Inspectors

133   Appointment of inspectors

             (1)  The Chairperson may, in writing, appoint a member of the staff assisting the Commission as an inspector.

             (2)  The Chairperson must not appoint a person as an inspector unless the Chairperson is satisfied that the person has suitable qualifications and experience to exercise properly the powers of an inspector.

             (3)  An inspector must, in exercising powers as an inspector, comply with any directions of the Chairperson.

             (4)  If a direction under subsection (3) is given in writing, the direction is not a legislative instrument.

133A   Identity cards

             (1)  The Chairperson must issue an identity card to a person appointed as an inspector.

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain a recent photograph of the person.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card under subsection (1); and

                     (b)  the person ceases to be an inspector; and

                     (c)  the person does not, as soon as practicable after so ceasing, return the identity card to the Chairperson.

Penalty:  1 penalty unit.

             (4)  An offence against subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

Defence: card lost or destroyed

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .

Inspector must carry card

             (6)  An inspector issued with an identity card under subsection (1) must carry his or her identity card at all times when exercising powers as an inspector.

Subdivision B Premises to which the public is given access

133B   Power to enter premises to which the public has access—consumer goods

             (1)  An inspector may enter premises in or from which a person, in trade or commerce, supplies consumer goods, if the public has access to the premises at the time of entry, for the purpose of ascertaining whether:

         (a)  any of those consumer goods will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of those consumer goods will or may cause injury to any person;

and remain on the premises for such a purpose while the public has access to the premises.

             (2)  While on the premises, the inspector may:

                     (a)  take photographs of:

                              (i)  any of those consumer goods; or

                             (ii)  equipment used in the manufacturing, processing or storage any of those consumer goods; and

                     (b)  inspect, handle and measure any of those consumer goods; and

                     (c)  purchase any of those consumer goods.

133C   Power to enter premises to which the public has access—product related services

             (1)  An inspector may enter premises in or from which a person, in trade or commerce, supplies product related services, if the public has access to the premises at the time of entry, for the purposes of ascertaining whether:

                     (a)  as a result of any of those product related services being supplied, any consumer goods will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of any consumer goods, to which any of those product related services relate, will or may cause injury to any person as a result of those services being supplied;

and remain on the premises for such a purpose while the public has access to the premises.

             (2)  While on the premises, the inspector may:

                     (a)  take photographs of:

                              (i)  the premises; or

                             (ii)  equipment used to supply any of those product related services; and

                     (b)  inspect, handle and measure such equipment; and

                     (c)  purchase any of those product related services.

Subdivision C Disclosure notices relating to the safety of goods or services

133D   Power to obtain information etc.

Consumer goods

             (1)  The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier ) who, in trade or commerce, supplies consumer goods of a particular kind if the person giving the notice has reason to believe:

                     (a)  that:

                              (i)  consumer goods of that kind will or may cause injury to any person; or

                             (ii)  a reasonably foreseeable use (including a misuse) of consumer goods of that kind will or may cause injury to any person; and

                     (b)  that the supplier is capable of giving information, producing documents or giving evidence in relation to those consumer goods.

Product related services

             (2)  The Commonwealth Minister or an inspector may give a disclosure notice to a person (the supplier ) who, in trade or commerce, supplies product related services of a particular kind if the person giving the notice has reason to believe:

                     (a)  that:

                              (i)  as a result of services of that kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

                             (ii)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which such services relate, will or may cause injury to any person as a result of such services being supplied; and

                     (b)  that the supplier is capable of giving information, producing documents or giving evidence in relation to those services.

Disclosure notice

             (3)  A disclosure notice is a written notice requiring the supplier:

                     (a)  to give, in writing signed by the supplier, any such information to the person specified in the notice:

                              (i)  in the manner specified in the notice; and

                             (ii)  within such reasonable time as is specified in the notice; or

                     (b)  to produce, in accordance with such reasonable requirements as are specified in the notice, any such documents to the person specified in the notice; or

                     (c)  to appear before the person specified in the notice at such reasonable time, and at such place, as is specified in the notice:

                              (i)  to give any such evidence, on oath or affirmation; and

                             (ii)  to produce any such documents.

             (4)  The person specified in the notice may be:

                     (a)  the Commonwealth Minister; or

                     (b)  an inspector (whether or not that inspector gave the notice).

133E   Self-incrimination

             (1)  A person is not excused from:

                     (a)  giving information or evidence; or

                     (b)  producing a document;

as required by a disclosure notice given to the person on the ground that the information or evidence, or production of the document, might tend to incriminate the person or expose the person to a penalty.

             (2)  However, in the case of an individual:

                     (a)  the information or evidence given, or the document produced; and

                     (b)  giving the information or evidence, or producing the document;

are not admissible in evidence against the individual:

                     (c)  in any proceedings instituted by the individual; or

                     (d)  in any criminal proceedings, other than proceedings against the individual for an offence against section 133F or 133G.

133F   Compliance with disclosure notices

             (1)  A person commits an offence if:

                     (a)  the person is given a disclosure notice; and

                     (b)  the person refuses or fails to comply with the notice.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (2)  Subsection (1) does not apply if the person complies with the disclosure notice to the extent to which the person is capable of complying with the notice.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .

             (3)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

133G   False or misleading information etc.

                   A person commits an offence if:

                     (a)  the person gives information, evidence or a document in purported compliance with a disclosure notice; and

                     (b)  the person does so knowing that the information, evidence or document is false or misleading in a material particular.

Penalty:

                     (a)  if the person is a body corporate—300 penalty units; or

                     (b)  if the person is not a body corporate—60 penalty units or imprisonment for 12 months, or both.

Subdivision D Court orders relating to the destruction etc. of goods

133H   Court orders relating to consumer goods that do not comply with a safety standard etc.

             (1)  If a court is satisfied that:

                     (a)  a person possesses or has control of consumer goods of a particular kind; and

                     (b)  any of the following apply:

                              (i)  the consumer goods do not comply with a safety standard that is in force for consumer goods of that kind and the cause of that non-compliance cannot be remedied;

                             (ii)  a permanent ban on consumer goods of that kind is in force;

                            (iii)  a recall notice for consumer goods of that kind is in force and a defect or dangerous characteristic of such consumer goods identified in the notice cannot be remedied;

the court may, on the application of an inspector, make an order of a kind referred to in subsection (2).

             (2)  The court may make an order under subsection (1) authorising one or more inspectors to do the following in accordance with any requirements specified in the order:

                     (a)  to enter the premises of the person that are specified in the order;

                     (b)  to search the premises for consumer goods of a kind specified in the order;

                     (c)  to seize any such consumer goods that are found at those premises;

                     (d)  to destroy or otherwise dispose of any such consumer goods that are so seized.

             (3)  Before making an application under subsection (1), the inspector must:

                     (a)  take reasonable steps to discover who has an interest in the consumer goods; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

             (4)  A person notified under subsection (3) is entitled to be heard in relation to the application.

133J   Recovery of reasonable costs of seizing, and destroying or disposing of, consumer goods

             (1)  If an inspector seizes, and destroys or otherwise disposes of, consumer goods in accordance with an order made under subsection 133H(1):

                     (a)  the person from whom the consumer goods were seized; or

                     (b)  if that person is not entitled to possess the consumer goods—the owner of the consumer goods;

is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing, and in destroying or disposing of, the consumer goods.

             (2)  An amount payable by a person under subsection (1):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

  Division 5 Infringement notices

134   Purpose and effect of this Division

             (1)  The purpose of this Division is to provide for the issue of an infringement notice to a person for an alleged contravention of an infringement notice provision as an alternative to proceedings for an order under section 224 of the Australian Consumer Law.

             (2)  This Division does not:

                     (a)  require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision; or

                     (b)  affect the liability of a person to proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law in relation to an alleged contravention of an infringement notice provision if:

                              (i)  an infringement notice is not issued to the person for the alleged contravention; or

                             (ii)  an infringement notice issued to a person for the alleged contravention is withdrawn under section 134G; or

                     (c)  prevent a court from imposing a higher penalty than the penalty specified in the infringement notice if the person does not comply with the notice.

134A   Issuing an infringement notice

             (1)  If the Commission has reasonable grounds to believe that a person has contravened an infringement notice provision, the Commission may issue an infringement notice to the person.

             (2)  Each of the following provisions of the Australian Consumer Law is an infringement notice provision :

                     (a)  a provision of Part 2-2;

                     (b)  a provision of Part 3-1 (other than subsection 32(1), 35(1) or 36(1), (2) or (3) or section 40 or 43);

                     (c)  subsection 66(2);

                     (d)  a provision of Division 2 of Part 3-2 (other than section 85);

                     (e)  a provision of Division 3 of Part 3-2 (other than subsection 96(2));

                      (f)  subsection 100(1) or (3), 101(3) or (4), 102(2) or 103(2);

                     (g)  subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2), 125(4), 127(1) or (2), 128(2) or (6), 131(1), 132(1), 136(1), (2) or (3) or 137(1) or (2);

                     (h)  subsection 221(1) or 222(1).

             (3)  The Commission must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.

             (4)  The infringement notice does not have any effect if the notice:

                     (a)  is issued more than 12 months after the day on which the contravention of the infringement notice provision is alleged to have occurred; or

                     (b)  relates to more than one alleged contravention of an infringement notice provision by the person.

134B   Matters to be included in an infringement notice

                   An infringement notice must:

                     (a)  be identified by a unique number; and

                     (b)  state the day on which it is issued; and

                     (c)  state the name and address of the person to whom it is issued; and

                     (d)  identify the Commission; and

                     (e)  state how the Commission may be contacted; and

                      (f)  give details of the alleged contravention by the person, including:

                              (i)  the date of the alleged contravention; and

                             (ii)  the particular infringement notice provision that was allegedly contravened; and

                     (g)  state the maximum pecuniary penalty that the court could order the person to pay under section 224 of the Australian Consumer Law for the alleged contravention; and

                     (h)  specify the penalty that is payable in relation to the alleged contravention; and

                      (i)  state that the penalty is payable within the infringement notice compliance period for the notice; and

                      (j)  state that the penalty is payable to the Commission on behalf of the Commonwealth; and

                     (k)  explain how payment of the penalty is to be made; and

                      (l)  explain the effect of sections 134D, 134E, 134F and 134G.

134C   Amount of penalty

                   The penalty to be specified in an infringement notice that is to be issued to a person, in relation to an alleged contravention of a provision of the Australian Consumer Law, must be a penalty equal to the amount worked out using the following table:

 

Amount of penalty

Item

If the infringement notice is for an alleged contravention of one of the following provisions of the Australian Consumer Law ...

the amount is ...

1

a provision of Part 2-2

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

2

a provision of Part 3-1 (other than subsection 32(1), 35(1), 36(1), (2) or (3), section 40 or 43 or subsection 47(1))

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

3

subsection 47(1)

(a) if the person is a body corporate—10 penalty units; or

(b) if the person is not a body corporate—2 penalty units.

4

subsection 66(2)

(a) if the person is a body corporate—55 penalty units; or

(b) if the person is not a body corporate—11 penalty units.

5

a provision of Division 2 of Part 3-2 (other than section 85)

(a) if the person is a body corporate—60 penalty units; or

(b) if the person is not a body corporate—12 penalty units.

6

a provision of Division 3 of Part 3-2 (other than subsection 96(2))

(a) if the person is a body corporate—55 penalty units; or

(b) if the person is not a body corporate—11 penalty units.

7

subsection 100(1) or (3) or 101(3) or (4)

(a) if the person is a body corporate—20 penalty units; or

(b) if the person is not a body corporate—4 penalty units.

8

subsection 102(2) or 103(2)

(a) if the person is a body corporate—60 penalty units; or

(b) if the person is not a body corporate—12 penalty units.

9

subsection 106(1), (2), (3) or (5), 107(1) or (2), 118(1), (2), (3) or (5), 119(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

10

subsection 125(4)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

11

subsection 127(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

12

subsection 128(2) or (6), 131(1) or 132(1)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

13

subsection 136(1), (2) or (3) or 137(1) or (2)

(a) if the person is a listed corporation—600 penalty units; or

(b) if the person is a body corporate other than a listed corporation—60 penalty units; or

(c) if the person is not a body corporate—12 penalty units.

14

subsection 221(1)

(a) if the person is a body corporate—30 penalty units; or

(b) if the person is not a body corporate—6 penalty units.

15

subsection 222(1)

(a) if the person is a body corporate—50 penalty units; or

(b) if the person is not a body corporate—10 penalty units.

134D   Effect of compliance with an infringement notice

             (1)  This section applies if:

                     (a)  an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

                     (b)  the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

                     (c)  the infringement notice is not withdrawn under section 134G.

             (2)  The person is not, merely because of the payment, regarded as:

                     (a)  having contravened the infringement notice provision; or

                     (b)  having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the infringement notice provision.

             (3)  No proceedings (whether criminal or civil) may be started or continued against the person, by or on behalf of the Commonwealth , in relation to:

                     (a)  the alleged contravention of the infringement notice provision; or

                     (b)  an offence constituted by the same conduct that constituted the alleged contravention.

134E   Effect of failure to comply with an infringement notice

                   If:

                     (a)  an infringement notice for an alleged contravention of an infringement notice provision is issued to a person; and

                     (b)  the person fails to pay the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice; and

                     (c)  the infringement notice is not withdrawn under section 134G;

the person is liable to proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law in relation to the alleged contravention of the infringement notice provision.

134F   Infringement notice compliance period for infringement notice

             (1)  Subject to this section, the infringement notice compliance period for an infringement notice is the period of 28 days beginning on the day after the day on which the infringement notice is issued by the Commission.

             (2)  The Commission may extend, by notice in writing, the infringement notice compliance period for the notice if the Commission is satisfied that it is appropriate to do so.

             (3)  Only one extension may be given and the extension must not be for longer than 28 days.

             (4)  Notice of the extension must be given to the person who was issued the infringement notice.

             (5)  A failure to comply with subsection (4) does not affect the validity of the extension.

             (6)  If the Commission extends the infringement notice compliance period for an infringement notice, a reference in this Division to the infringement notice compliance period for an infringement notice is taken to be a reference to the infringement notice compliance period as so extended.

134G   Withdrawal of an infringement notice

Representations to the Commission

             (1)  The person to whom an infringement notice has been issued for an alleged contravention of an infringement notice provision may make written representations to the Commission seeking the withdrawal of the infringement notice.

             (2)  Evidence or information that the person, or a representative of the person, gives to the Commission in the course of making representations under subsection (1) is not admissible in evidence against the person or representative in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

Withdrawal by the Commission

             (3)  The Commission may, by written notice (the withdrawal notice ) given to the person to whom an infringement notice was issued, withdraw the infringement notice if the Commission is satisfied that it is appropriate to do so.

             (4)  Subsection (3) applies whether or not the person has made representations seeking the withdrawal.

Content of withdrawal notices

             (5)  The withdrawal notice must state:

                     (a)  the name and address of the person; and

                     (b)  the day on which the infringement notice was issued to the person; and

                     (c)  that the infringement notice is withdrawn; and

                     (d)  that proceedings under Chapter 4 or Part 5-2 of the Australian Consumer Law may be started or continued against the person in relation to:

                              (i)  the alleged contravention of the infringement notice provision; or

                             (ii)  an offence constituted by the same conduct that constituted the alleged contravention.

Time limit for giving withdrawal notices

             (6)  To be effective, the withdrawal notice must be given to the person within the infringement notice compliance period for the infringement notice.

Refunds

             (7)  If the infringement notice is withdrawn after the person has paid the penalty specified in the infringement notice, the Commission must refund to the person an amount equal to the amount paid.

Division 6 Search, seizure and entry

Subdivision A Powers of inspectors

135   Inspector may enter premises

Consumer goods

             (1)  If an inspector has reason to believe that:

                     (a)  consumer goods of a particular kind will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind will or may cause injury to any person;

the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):

                     (c)  enter any premises in or from which the inspector has reason to believe that a person supplies consumer goods of that kind in trade or commerce; and

                     (d)  exercise search-related powers in relation to the premises.

Product related services

             (2)  If an inspector has reason to believe that:

                     (a)  as a result of product related services of a particular kind being supplied, consumer goods of a particular kind will or may cause injury to any person; or

                     (b)  a reasonably foreseeable use (including a misuse) of consumer goods of a particular kind, to which product related services of a particular kind relate, will or may cause injury to any person as a result of such services being supplied;

the inspector may, for the purposes of ascertaining the matter referred to in paragraph (a) or (b):

                     (c)  enter any premises in or from which the inspector has reason to believe that a person supplies product related services of that kind in trade or commerce; and

                     (d)  exercise search-related powers in relation to the premises.

Limitation on entry

             (3) However, the inspector is not entitled to enter premises under subsection (1) or (2) unless:

                     (a)  the occupier of the premises has consented to the entry and the inspector has shown his or her identity card if required by the occupier; or

                     (b)  the entry is made under a search warrant; or

                     (c)  the entry is made in circumstances in which the exercise of search-related powers is required without delay in order to protect life or public safety.

Note:          For requirements relating to the occupier’s consent, see section 135H.

135A   Search-related powers of inspectors

Search-related powers—consumer goods

             (1)  The following are the search-related powers that an inspector may exercise, under subsection 135(1), in relation to premises in or from which the inspector has reason to believe that a person supplies consumer goods of a particular kind:

                     (a)  if entry to the premises is under a search warrant—the power to seize consumer goods of that kind;

                     (b)  the power to inspect, handle and measure consumer goods of that kind;

                     (c)  the power to take samples of consumer goods of that kind;

                     (d)  the power:

                              (i)  to inspect, handle and read any documents relating to consumer goods of that kind; and

                             (ii)  to make copies of, or take extracts from, those documents;

                     (e)  the power:

                              (i)  to inspect, handle and measure equipment used in the manufacturing, processing or storage of consumer goods of that kind; and

                             (ii)  if entry to the premises is under a search warrant—to seize such equipment;

                      (f)  the power to make any still or moving image or any recording of:

                              (i)  consumer goods of that kind; or

                             (ii)  the premises; or

                            (iii)  any equipment referred to in subparagraph (e)(i).

Search-related powers—product related services

             (2)  The following are the search-related powers that an inspector may exercise, under subsection 135(2), in relation to premises in or from which the inspector has reason to believe that a person supplies product related services of a particular kind:

                     (a)  the power:

                              (i)  to inspect, handle and read any documents relating to services of that kind; and

                             (ii)  to make copies of, or take extracts from, those documents;

                     (b)  the power:

                              (i)  to inspect, handle and measure equipment used to supply services of that kind; and

                             (ii)  if entry to the premises is under a search warrant—to seize such equipment;

                     (c)  the power to make any still or moving image or any recording of:

                              (i)  any consumer goods to which product related services of that kind relate; or

                             (ii)  the premises; or

                            (iii)  any equipment referred to in subparagraph (b)(i).

135B   Inspector may ask questions and seek production of documents

Entry with consent etc.

             (1)  If an inspector enters premises because the occupier of the premises consents to the entry or in the circumstances referred to in paragraph 135(3)(c), the inspector may ask the occupier to:

                     (a)  answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and

                     (b)  produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.

Entry under a search warrant

             (2)  If an inspector enters premises under a search warrant, the inspector may require any person on the premises to:

                     (a)  answer any questions relating to the reasons for the inspector entering the premises that are put by the inspector; and

                     (b)  produce any document relating to the reasons for the inspector entering the premises that is requested by the inspector.

135C   Failure to answer questions or produce documents

             (1)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection 135B(2); and

                     (b)  the person fails to comply with the requirement.

Penalty:

                     (a)  if the person is a body corporate—150 penalty units; or

                     (b)  if the person is not a body corporate—30 penalty units.

             (2)  A person is not excused from:

                     (a)  answering a question; or

                     (b)  producing a document;

as required under subsection 135B(2) on the ground that the answer, or production of the document, might tend to incriminate the person or expose the person to a penalty.

             (3)  However, in the case of an individual:

                     (a)  the answer, or the document produced; and

                     (b)  giving the answer, or producing the document;

are not admissible in evidence against the individual in any criminal proceedings other than:

                     (c)  proceedings for any offence against subsection (1); or

                     (d)  proceedings for an offence based on the answer or document being false or misleading; or

                     (e)  proceedings for an offence based on the obstruction of public officials.

             (4)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

135D   Persons assisting inspectors

Inspectors may be assisted by other persons

             (1)  An inspector may, in entering premises under section 135 and in exercising search-related powers in relation to the premises, be assisted by other persons if that assistance is necessary and reasonable.

             (2)  A person giving such assistance is a person assisting the inspector.

Powers of a person assisting the inspector

             (3)  A person assisting the inspector may:

                     (a)  enter the premises; and

                     (b)  exercise search-related powers in relation to the premises, but only in accordance with a direction given to the person by the inspector.

             (4)  A power exercised by a person assisting the inspector as mentioned in subsection (3) is taken for all purposes to have been exercised by the inspector.

135E   Use of force in executing a search warrant

                   In executing a search warrant, an inspector executing the warrant may use such force against persons and things as is necessary and reasonable in the circumstances.

135F   Announcement before entry under warrant

             (1)  An inspector must, before entering premises under a search warrant:

                     (a)  announce that he or she is authorised to enter the premises; and

                     (b)  show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

                     (c)  give any person at the premises an opportunity to allow entry to the premises.

             (2)  However, an inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

                     (a)  to ensure the safety of a person (including the inspector or a person assisting the inspector); or

                     (b)  to ensure that the effective execution of the warrant is not frustrated.

             (3)  If:

                     (a) the inspector does not comply with subsection (1) because of subsection (2); and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the inspector must, as soon as practicable after entering the premises, show his or her identity card to the occupier or other person.

135G   Inspector must be in possession of search warrant

                   If a search warrant is being executed in relation to premises, an inspector executing the warrant must be in possession of:

                     (a)  the warrant issued under section 135Z or a copy of that warrant; or

                     (b)  the form of warrant completed under subsection 136(7), or a copy of that form.

Subdivision B Obligations of inspectors

135H   Consent

             (1)  An inspector must, before obtaining the consent of an occupier of premises for the purposes of paragraph 135(3)(a), inform the occupier that the occupier may refuse consent.

             (2)  A consent has no effect unless the consent is voluntary.

             (3)  If an inspector enters premises because the occupier of the premises consented to the entry, the inspector, and a person assisting the inspector, must leave the premises if the consent ceases to have effect.

135J   Details of search warrant etc. must be given to the occupier of the premises

                   If:

                     (a)  a search warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

an inspector executing the warrant must, as soon as practicable:

                     (c)  do one of the following:

                              (i)  if the warrant was issued under section 135Z—make a copy of the warrant available to the occupier or other person (which need not include the signature of the judge who issued it);

                             (ii)  if the warrant was signed under section 136—make a copy of the form of warrant completed under subsection 136(7) available to the occupier or other person; and

                     (d)  inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision C.

Subdivision C Occupier’s etc. rights and responsibilities

135K   Occupier etc. entitled to observe execution of search warrant

             (1)  If:

                     (a)  a search warrant is being executed in relation to premises; and

                     (b)  the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the occupier or other person is entitled to observe the execution of the warrant.

             (2)  The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.

             (3)  This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.

135L   Occupier etc. to provide inspector etc. with facilities and assistance

             (1)  A person commits an offence if:

                     (a)  the person is:

                              (i)  the occupier of premises to which a search warrant relates; or

                             (ii)  another person who apparently represents the occupier of those premises; and

                     (b)  the person fails to provide:

                              (i)  an inspector executing the warrant; and

                             (ii)  a person assisting the inspector;

                            with all reasonable facilities and assistance for the effective exercise of their powers.

Penalty:

                     (a)  if the person is a body corporate—600 penalty units; or

                     (b)  if the person is not a body corporate—120 penalty units or imprisonment for 2 years, or both.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

135M   Receipts for seized consumer goods and equipment

             (1)  If consumer goods are seized under a search warrant, an inspector must provide a receipt for the goods.

             (2)  If equipment is seized under a search warrant, an inspector must provide a receipt for the equipment.

             (3)  One receipt may cover:

                     (a)  consumer goods and equipment that have been so seized; and

                     (b)  2 or more kinds of consumer goods or equipment that have been so seized.

135N   Return of seized consumer goods and equipment

             (1)  Subject to any order under section 135P, if an inspector seizes consumer goods or equipment under a search warrant, the inspector must take reasonable steps to return the consumer goods or equipment if:

                     (a)  the reason for the seizure no longer exists; or

                     (b)  the period of 60 days after the seizure ends;

whichever happens first.

             (2)  Subsection (1) does not apply if:

                     (a)  the consumer goods are, or the equipment is, forfeited or forfeitable to the Commonwealth; or

                     (b)  the consumer goods are, or the equipment is, the subject of a dispute as to ownership.

             (3)  If, apart from this subsection, the inspector would be required to take reasonable steps to return consumer goods or equipment under subsection (1) because of paragraph (b) of that subsection, the inspector is not required to do so if:

                     (a)  the return of the consumer goods or equipment could cause an imminent risk of death, serious illness or serious injury; or

                     (b)  the inspector is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or a Territory) to retain, destroy, dispose of or otherwise deal with the consumer goods or equipment.

             (4)  Consumer goods that are required to be returned under this section must be returned to the person from whom they were seized (or to the owner if that person is not entitled to possess them).

             (5)  Equipment that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

135P   Judge may permit consumer goods or equipment to be retained

             (1)  An inspector who has seized consumer goods or equipment under a search warrant may, before the end of the period referred to in paragraph 135N(1)(b), apply to a judge of the Federal Court for an order that the inspector may retain the consumer goods or equipment for a further period of up to 60 days.

             (2)  If:

                     (a)  an application to a judge is made under subsection (1); and

                     (b)  the judge is satisfied that it is necessary in all the circumstances for the inspector to continue to retain the consumer goods or equipment;

the judge may order that the inspector may retain the consumer goods or equipment for a further period (not exceeding 60 days) specified in the order.

             (3)  Before making the application under subsection (1), the inspector must:

                     (a)  take reasonable steps to discover who has an interest in the retention of the consumer goods or equipment; and

                     (b)  if it is practicable to do so, notify each person whom the inspector believes to have such an interest of the proposed application.

Subdivision D Provisions relating to seizure

135Q   Recovery of reasonable costs of seizing consumer goods or equipment

             (1)  If an inspector seizes consumer goods or equipment under a search warrant:

                     (a)  the person from whom the consumer goods were seized, or the equipment was seized; or

                     (b)  if that person is not entitled to possess the consumer goods or equipment—the owner of the consumer goods or equipment;

is liable to pay an amount equal to the costs reasonably incurred by the inspector in seizing the consumer goods or equipment.

             (2)  An amount payable by a person under subsection (1):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

135R   Destruction or disposal of seized consumer goods or equipment

             (1)  If:

                     (a)  an inspector seizes consumer goods, or equipment used to supply product-related services, under a search warrant; and

                     (b)  apart from this section, the inspector is required to return the consumer goods or equipment to a person; and

                     (c)  either:

                              (i)  the inspector cannot, despite making reasonable efforts, locate the person; or

                             (ii)  the person has refused to take possession of the consumer goods or equipment;

a court may, on the application of the inspector, make an order authorising the inspector to destroy or otherwise dispose of the consumer goods or equipment.

             (2)  If subparagraph (1)(c)(ii) applies, the inspector must, before making an application under subsection (1), inform the person referred to in that subparagraph that the inspector proposes to make an application under that subsection.

             (3)  If:

                     (a)  an order is made under subsection (1); and

                     (b)  subparagraph (1)(c)(ii) applies;

the person referred to in that subparagraph is liable to pay an amount equal to the costs reasonably incurred by the inspector in destroying or disposing of the consumer goods or equipment.

             (4)  An amount payable by a person under subsection (3):

                     (a)  is a debt due by the person to the Commonwealth; and

                     (b)  may be recovered by action in a court of competent jurisdiction.

Subdivision E Embargo notices

135S   Embargo notices

             (1)  An inspector who enters premises under a search warrant may give an embargo notice to the occupier of the premises.

             (2)  The inspector may give the notice to the occupier of the premises:

                     (a)  by causing a copy of the notice to be served on the occupier; or

                     (b)  if the occupier cannot be located after all reasonable steps have been taken to do so—by:

                              (i)  causing a copy of the notice to be served on a person on the premises who is reasonably believed to be in regular contact with the occupier; or

                             (ii)  causing a copy of the notice to be affixed to the premises, or to a thing on the premises, in a prominent position.

             (3)  The embargo notice must:

                     (a)  be in writing; and

                     (b)  specify the consumer goods, or product related services, to which the notice relates; and

                     (c)  if the notice relates to consumer goods—state that the specified consumer goods must not be:

                              (i)  supplied in or from the premises; or

                             (ii)  transferred, moved, altered, destroyed or otherwise interfered with;

                            during the period specified in the notice; and

                     (d)  if the notice relates to product related services—state that the specified product related services must not be supplied in or from the premises during the period specified in the notice; and

                     (e)  explain the effect of section 135V or 135W.

             (4)  Despite anything in any other law, a contract for a supply of consumer goods or product related services that is prohibited by an embargo notice is void.

             (5)  If consumer goods are supplied in contravention of an embargo notice:

                     (a)  the supplier must immediately return or refund to the person who acquired the goods any consideration (or the value of any consideration) that that person gave:

                              (i)  under an agreement for the supply; or

                             (ii)  under a related contract or instrument; and

                     (b)  if the goods have been removed from the premises in which they were subject to the embargo notice—the person who acquired the goods must:

                              (i)  return the goods to the premises; or

                             (ii)  notify the supplier of the place where the supplier may collect the goods; and

                     (c)  if subparagraph (b)(ii) applies—the supplier must collect the goods from the place notified to the supplier, and return them to the premises.

135T   Embargo period for embargo notices

Embargo period

             (1)  Subject to this section, the embargo period for an embargo notice must not be longer than:

                     (a)  if the inspector giving the notice secures consumer goods under section 135V or secures equipment under section 135W—24 hours; or

                     (b)  otherwise—28 days.

Extensions of embargo period

             (2)  An inspector may, before the embargo period ends, apply to a judge of the Federal Court for an extension of the period.

             (3)  If an inspector intends to make an application under subsection (2), the inspector must, before making the application, notify the occupier of the premises to which the embargo notice relates of that intention.

             (4)  The occupier of the premises is entitled to be heard in relation to the application.

             (5)  The judge may extend the embargo period for a specified period if the judge is satisfied that the extension is necessary in all the circumstances.

135U   Multiple embargo notices for the same consumer goods or product related services

                   An inspector must not give an embargo notice in relation to consumer goods, or product related services, of a particular kind if:

                     (a)  an embargo notice (the earlier embargo notice ) has already been given in relation to consumer goods, or product related services, of that kind; and

                     (b)  the embargo period for the earlier embargo notice did not end at least 5 days ago.

135V   Power of inspectors to secure consumer goods

                   If:

                     (a)  an embargo notice relates to consumer goods; and

                     (b)  the inspector who gives the notice believes on reasonable grounds that it is necessary to secure the consumer goods in order to ensure that the notice is complied with;

the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure those consumer goods (whether by locking them up, placing a guard or otherwise).

135W   Power of inspectors to secure equipment used to supply product related services

                   If:

                     (a)  an embargo notice relates to product related services; and

                     (b)  the inspector who gives the notice believes on reasonable grounds that it is necessary to secure equipment used to supply the services in order to ensure that the notice is complied with;

the inspector may, during the embargo period for the embargo notice, do anything that the inspector thinks is necessary to secure that equipment (whether by locking it up, placing a guard or otherwise).

135X   Consent to supply etc. embargoed consumer goods etc.

             (1)  If an embargo notice relating to consumer goods has been given, the owner of the goods or another person who has an interest in the goods may, in writing, request consent to do any of the following:

                     (a)  to supply the goods;

                     (b)  to transfer, move, alter, destroy or otherwise interfere with the goods.

             (2)  If an embargo notice relating to product related services has been given, the following persons may, in writing, request consent to supply the services:

                     (a)  the person who would, but for the embargo notice, supply the services;

                     (b)  another person whose interests would be affected if the services were not supplied.

             (3)  If a request for consent is made under subsection (1) or (2), the requested consent may be given, in writing, by the Commonwealth Minister, the Chairperson or any inspector.

             (4)  A consent given under subsection (3) is not a legislative instrument.

135Y   Compliance with embargo notices

             (1)  A person commits an offence if:

                     (a)  the person knows that an embargo notice has been given; and

                     (b)  the person, contrary to the embargo notice, does an act or omits to do an act.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (2)  A person commits an offence if:

                     (a)  the person knows that an embargo notice has been given; and

                     (b)  the person causes another person:

                              (i)  to do an act that is contrary to the embargo notice; or

                             (ii)  contrary to the embargo notice, to omit to do an act.

Penalty:

                     (a)  if the person is a body corporate—200 penalty units; or

                     (b)  if the person is not a body corporate—40 penalty units.

             (3)  Subsection (1) or (2) does not apply in relation to:

                     (a)  an act done in accordance with a consent given under section 135X; or

                     (b)  if the embargo notice relates to consumer goods—an act done for the purpose of protecting or preserving the consumer goods; or

                     (c)  if the embargo notice relates to product related services—an act done for the purpose of protecting or preserving equipment used to supply the services.

Note:          A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code .

             (4)  Strict liability applies to paragraphs (1)(b) and (2)(b).

Note:          For strict liability, see section 6.1 of the Criminal Code .

Subdivision F Issue of search warrants

135Z   Issue of search warrants

Application for warrant

             (1)  An inspector may apply to a judge of the Federal Court for a warrant in relation to premises.

Issue of warrant

             (2)  The judge may issue the warrant if:

                     (a)  an affidavit has been given to the judge setting out the grounds on which the issue of the warrant is being sought; and

                     (b)  the applicant, or some other person, has given to the judge such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought; and

                     (c)  the judge is satisfied that there are reasonable grounds for issuing the warrant.

Content of warrant

             (3)  The warrant must:

                     (a)  specify the purpose for which the warrant is issued; and

                     (b)  describe the premises to which the warrant relates; and

                     (c)  state that the warrant is issued under this section; and

                     (d)  name one or more inspectors; and

                     (e)  authorise the inspector or inspectors so named:

                              (i)  to enter the premises; and

                             (ii)  to exercise search-related powers in relation to the premises; and

                      (f)  state whether the entry is authorised to be made at any time of the day or night, or during specified hours of the day or night; and

                     (g)  specify a day (which must not be more than 7 days after the day the warrant is issued) on which the warrant ceases to be in force.

136   Search warrants by telephone, fax etc.

Application for warrant

             (1)  An inspector may apply to a judge of the Federal Court by telephone, fax or other electronic means for a warrant under section 135Z in relation to premises if the inspector believes on reasonable grounds that the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

Voice communication

             (2)  The judge may require communication by voice to the extent that it is practicable in the circumstances.

Affidavit

             (3)  Before applying for the warrant, the inspector must prepare an affidavit of the kind mentioned in paragraph 135Z(2)(a).

             (4)  If it is necessary to do so, the inspector may apply for the warrant before the affidavit has been sworn.

Signing of warrant

             (5)  If the judge is satisfied:

                     (a)  after considering the terms of the affidavit; and

                     (b)  after receiving such further information (if any) as the judge requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the judge may complete and sign the same warrant that the judge would issue under section 135Z if the application had been made under that section.

Notification

             (6)  If the judge completes and signs the warrant, the judge must inform the inspector, by telephone, fax or other electronic means, of:

                     (a)  the terms of the warrant; and

                     (b)  the day on which and the time at which the warrant was signed.

Form of warrant

             (7)  The inspector must then complete a form of warrant in the same terms as the warrant completed and signed by the judge, stating on the form the name of the judge and the day on which and the time at which the warrant was signed.

Completed form of warrant to be given to judge

             (8)  The inspector must also, not later than the day after the day on which the warrant ceased to be in force or the day of execution of the warrant, whichever is the earlier, send to the judge:

                     (a)  the form of warrant completed by the inspector; and

                     (b)  the affidavit referred to in subsection (3), which must have been duly sworn.

Attachment

             (9)  The judge must attach to the documents provided under subsection (8) the warrant signed by the judge.

Authority of warrant

           (10)  A form of warrant duly completed under subsection (7) is authority for the same powers as are authorised by the warrant signed by the judge.

           (11)  If:

                     (a)  it is material, in any proceedings, for a court to be satisfied that an exercise of a power was authorised by this section; and

                     (b)  the warrant signed by the judge authorising the exercise of the power is not produced in evidence;

the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by such a warrant.

136A   Offence relating to warrants by telephone, fax etc.

                   An inspector commits an offence if the inspector:

                     (a)  states in a document that purports to be a form of warrant under section 136 the name of a judge unless that judge signed the warrant; or

                     (b)  states on a form of warrant under that section a matter that, to the inspector’s knowledge, departs in a material particular from the terms of the warrant signed by the judge under that section; or

                     (c)  purports to execute, or presents to another person, a document that purports to be a form of warrant under that section that the inspector knows:

                              (i)  has not been approved by a judge under that section; or

                             (ii)  departs in a material particular from the terms of a warrant signed by a judge under that section; or

                     (d)  gives to a judge a form of warrant under that section that is not the form of warrant that the inspector purported to execute.

Penalty:  120 penalty units or imprisonment for 2 years, or both.

Subdivision G Miscellaneous

136B   Powers of judges

Powers conferred personally

             (1)  A power conferred on a judge by this Division is conferred on the judge:

                     (a)  in a personal capacity; and

                     (b)  not as a court or a member of a court.

Powers need not be accepted

             (2)  The judge need not accept the power conferred.

Protection and immunity

             (3)  A judge exercising a power conferred by this Division has the same protection and immunity as if he or she were exercising the power:

                     (a)  as the court of which the judge is a member; or

                     (b)  as a member of the court of which the judge is a member.

Division 7 Remedies

137   Limit on occupational liability

State or Territory professional standards law limits liability

             (1)  A professional standards law of a State, the Australian Capital Territory or the Northern Territory applies to limit occupational liability relating to an action for a contravention of section 18 of the Australian Consumer Law in the same way as it limits occupational liability arising under a law of the State or Territory.

             (2)  However, the professional standards law applies for that purpose:

                     (a)  only in relation to a scheme that was prescribed by the regulations at the time (the contravention time ) of the contravention; and

                     (b)  as if the scheme were in force under that law at the contravention time, in the form the scheme would have been in if:

                              (i)  the scheme had not been amended or revoked under that law since the scheme was first prescribed; and

                             (ii)  any additions, omissions, substitutions and other modifications prescribed by the regulations at the contravention time had been made to the scheme.

Operation of choice of law rules

             (3)  For the purposes of working out whether a professional standards law of a particular State or Territory applies under subsection (1) in relation to a particular contravention of section 18 of the Australian Consumer Law, choice of law rules operate in relation to the contravention in the same way as they operate in relation to a tort.

Professional standards laws

             (4)  A professional standards law is a law that provides for the limitation of occupational liability by reference to schemes for limiting that liability that were formulated and published in accordance with that law.

Occupational liability

             (5)  Occupational liability is civil liability arising directly or vicariously from anything done or omitted by a person who:

                     (a)  does or omits to do the thing in the course of his or her profession, trade or occupation; and

                     (b)  is a member of a body:

                              (i)  that represents the interests of persons who have the same profession, trade or occupation; and

                             (ii)  whose membership is limited principally to such persons.

137A   Contributory acts or omissions to reduce compensation in defective goods actions

             (1)  If the loss or damage to which a defective goods action under section 138 or 139 of the Australian Consumer Law relates was caused by both:

                     (a)  an act or omission of:

                              (i)  the individual who suffers the injuries referred to in that section; or

                             (ii)  a person for whom that individual is responsible; and

                     (b)  a safety defect of the goods to which the action relates;

the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage.

             (2)  If the loss or damage to which a defective goods action under section 140 or 141 of the Australian Consumer Law relates was caused by both:

                     (a)  an act or omission of:

                              (i)  the person who suffered the loss or damage; or

                             (ii)  another person for whom that person is responsible; and

                     (b)  a safety defect of the goods to which the action relates;

the amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to the person’s share in the responsibility for the loss or damage.

137B   Reduction of the amount of loss or damage if the claimant fails to take reasonable care

                   If:

                     (a)  a person (the claimant ) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and

                     (b)  the conduct contravened section 18 of the Australian Consumer Law; and

                     (c)  the claimant suffered the loss or damage as result:

                              (i)  partly of the claimant’s failure to take reasonable care; and

                             (ii)  partly of the conduct of the other person; and

                     (d)  the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage;

the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.

137C   Limits on recovery of amounts for death or personal injury

             (1)  A person is not entitled to recover an amount of loss or damage by action under subsection 236(1) of the Australian Consumer Law to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury does not result from smoking or other use of tobacco products.

             (2)  Divisions 2 and 7 of Part VIB of this Act apply to an action under subsection 236(1) of the Australian Consumer Law for loss or damage a person suffers to the extent to which:

                     (a)  the action is based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the action were a proceeding to which Part VIB of this Act applied.

Note 1:       Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the action by this subsection, it overrides subsection 236(2) of the Australian Consumer Law.

Note 2:       Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

137D   Compensation orders etc. arising out of unfair contract terms

                   In determining whether to make an order under subsection 237(1) or 238(1) of the Australian Consumer Law in relation to:

                     (a)  a contravention of a provision of Part 2-2 of the Australian Consumer Law; or

                     (b)  a term of a consumer contract that has been declared under section 250 of the Australian Consumer Law to be an unfair term;

the court may have regard to the conduct of the parties to the proceeding referred to in that subsection since the contravention occurred or the declaration was made.

137E   Limits on compensation orders etc. for death or personal injury

             (1)  A court must not make an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury does not result from smoking or other use of tobacco products.

             (2)  Division 2 of Part VIB of this Act applies to an application for an order under subsection 237(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2-1 or 3-1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the proceeding in relation to the application were a proceeding to which Part VIB of this Act applies and as if the making of the application were the commencement of the proceeding.

Note:          Division 2 of Part VIB of this Act deals with the limitation periods that apply for claims for damages or compensation for death or personal injury and, to the extent to which that Division is applied to the application by this subsection, it overrides subsection 237(3) of the Australian Consumer Law.

             (3)  Division 7 of Part VIB of this Act applies to a proceeding in which an order under subsection 237(1) or 238(1) of the Australian Consumer Law to compensate a person for loss or damage the person suffers because of the conduct of another person is made, to the extent to which:

                     (a)  the action would be based on the conduct contravening a provision of Part 2-1 or Part 3-1 of the Australian Consumer Law; and

                     (b)  the loss or damage is, or results from, death or personal injury; and

                     (c)  the death or personal injury results from smoking or other use of tobacco products;

as if the proceeding were a proceeding to which Part VIB of this Act applied.

Note:          Division 7 of Part VIB of this Act deals with structured settlements for claims for damages or compensation for death or personal injury.

137F   Court may make orders for the purpose of preserving money or other property held by a person

             (1)  A court may, on the application of the Commonwealth Minister or the Commission, make an order or orders mentioned in subsection (3) if:

                     (a)  proceedings of a kind referred to in subsection (2) have been taken against a person, or proceedings of a kind referred to in paragraph (2)(d) may be taken against a person; and

                     (b)  the court is satisfied that it is necessary or desirable to make the order or orders for the purpose of preserving money or other property held by, or on behalf of, the person if the person is liable, or may become liable, under the Australian Consumer Law:

                              (i)  to pay money by way of a fine, damages, compensation, refund or otherwise; or

                             (ii)  to transfer, sell or refund other property; and

                     (c)  the court is satisfied that the making of such an order or orders will not unduly prejudice the rights and interests of any other person.

Kinds of proceedings taken against the person

             (2)  For the purposes of paragraph (1)(a), the kinds of proceedings taken against the person are:

                     (a)  proceedings against the person for an offence against a provision of Chapter 4 of the Australian Consumer Law; or

                     (b)  an application under section 232 of the Australian Consumer Law for an injunction against the person in relation to:

                              (i)  a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                             (ii)  a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made; or

                     (c)  an action under subsection 236(1) of the Australian Consumer Law against the person in relation to a contravention of a provision of Part 2-1 or Chapter 3 of the Australian Consumer Law; or

                     (d)  an application for an order under subsection 237(1) or 239(1) of the Australian Consumer Law against a person in relation to:

                              (i)  a contravention of a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                             (ii)  a term of a consumer contract in relation to which a declaration under section 250 of the Australian Consumer Law has been made.

Kinds of orders that may be made

             (3)  The court may make the following orders under subsection (1) of this section in a relation to money or other property held by, or on behalf of, a person (the respondent ):

                     (a)  an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the respondent, or to an associate of the respondent, from making a payment, in total or partial discharge of the debt:

                              (i)  to the respondent; or

                             (ii)  to another person at the direction or request of the respondent;

                     (b)  an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the respondent, or on behalf of an associate of the respondent:

                              (i)  from paying all or any of the money to the respondent, or to another person at the direction or request of the respondent; or

                             (ii)  from transferring the other property to the respondent, or to another person at the direction or request of the respondent, or otherwise parting with possession of that property;

                     (c)  an order prohibiting, either absolutely or subject to conditions, the taking or sending by any person of money of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which the money is held;

                     (d)  an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the respondent, or of an associate of the respondent, to a place outside the State or Territory in which that property is located;

                     (e)  if the respondent is a natural person—an order appointing a receiver or trustee of the property, or of part of the property, of the respondent with such powers as are specified in the order.

Operation of order

             (4)  If the court makes such an order, the order operates:

                     (a)  for the period specified in the order (which must not be longer than 30 days if the application for the order was an ex parte application); or

                     (b)  if proceedings in relation to which the order is made are concluded before the end of that period—until the conclusion of those proceedings.

Other

             (5)  This section:

                     (a)  has effect subject to the Bankruptcy Act 1966 ; and

                     (b)  does not affect any other powers of the court.

137G   Compliance with orders made under section 137F

             (1)  A person commits an offence if:

                     (a)  an order made under section 137F applies to the person; and

                     (b)  the person contravenes, or refuses or fails to comply with, the order.

Penalty:

                     (a)  if the person is a body corporate—900 penalty units; or

                     (b)  if the person is not a body corporate—180 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

137H   Finding in proceedings to be evidence

             (1)  In an action against a person under subsection 236(1) of the Australian Consumer Law:

                     (a)  a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and

                     (b)  the finding may be proved by production of a document under the seal of the court from which the finding appears.

             (2)  In proceedings for an order against a person under subsection 237(1) or 239(1) of the Australian Consumer Law:

                     (a)  a finding of a fact by a court to which subsection (3) of this section applies is prima facie evidence of that fact; and

                     (b)  the finding may be proved by production of a document under the seal of the court from which the finding appears.

             (3)  This subsection applies to a finding of a fact by a court that is made in proceedings under section 228, 232, 246, 247 or 248 of the Australian Consumer Law, or for an offence against a provision of Chapter 4 of the Australian Consumer Law, in which the person has been found:

                     (a)  to have contravened a provision of Chapter 2, 3 or 4 of the Australian Consumer Law; or

                     (b)  to have attempted to contravene such a provision; or

                     (c)  to have aided, abetted, counselled or procured a person to contravene such a provision; or

                     (d)  to have induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or

                     (e)  to have been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

                      (f)  to have conspired with others to contravene such a provision.

Division 8 Jurisdictional matters

138   Conferring jurisdiction on the Federal Court

             (1)  Jurisdiction is conferred on the Federal Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding has been instituted under this Part or the Australian Consumer Law.

             (2)  The jurisdiction conferred by subsection (1) on the Federal Court is exclusive of the jurisdiction of any other court other than:

                     (a)  the jurisdiction of the Federal Magistrates Court under section 138A; and

                     (b)  the jurisdiction of the several courts of the States and Territories under section 138B; and

                     (c)  the jurisdiction of the High Court under section 75 of the Constitution.

138A   Conferring jurisdiction on the Federal Magistrates Court

             (1)  Subject to this section, jurisdiction is conferred on the Federal Magistrates Court in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister.

             (2)  If proceedings under Part 3-5, or section 236, of the Australian Consumer Law are instituted in, or transferred to, the Federal Magistrates Court, the Federal Magistrates Court does not have jurisdiction to award an amount for loss or damage that exceeds:

                     (a)  $750,000; or

                     (b)  if another amount is specified in the regulations—that other amount.

Note:          For transfers from the Federal Court to the Federal Magistrates Court: see section 32AB of the Federal Court of Australia Act 1976 .

138B   Conferring jurisdiction on State and Territory Courts

             (1)  Jurisdiction is conferred on the several courts of the States and Territories in relation to any matter arising under this Part or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister or the Commission.

             (2)  However, subsection (1) does not apply in relation to a matter arising under:

                     (a)  Division 3 of Part 3-1 of the Australian Consumer Law; or

                     (b)  Part 3-5 of the Australian Consumer Law.

             (3)  The jurisdiction conferred by subsection (1) on the several courts of the States is conferred within the limits of their several jurisdictions, whether those limits are as to locality, subject matter or otherwise.

             (4)  The jurisdiction conferred by subsection (1) on the several courts of the Territories is conferred to the extent that the Constitution permits.

             (5)  This section is not to be taken to enable an inferior court of a State or a Territory to grant a remedy other than a remedy of a kind that the court is able to grant under the law of that State or Territory.

138C   Transfer of matters by the Federal Court

             (1)  Subject to subsections (2) and (3), if:

                     (a)  a civil proceeding instituted by a person (other than the Commonwealth Minister or the Commission) is pending in the Federal Court; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law;

the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the matter, and any other matter for determination in the proceeding, to a court of a State or a Territory.

             (2)  The Federal Court must not transfer a matter to another court under subsection (1) unless:

                     (a)  the other court has power to grant the remedies sought before the Federal Court in the matter; and

                     (b)  it appears to the Federal Court that:

                              (i)  the matter arises out of, or is related to, a proceeding that is pending in the other court; or

                             (ii)  it is otherwise in the interests of justice that the matter be determined by the other court.

             (3)  Subsection (1) does not apply in relation to a matter arising under:

                     (a)  Division 3 of Part 3-1 of the Australian Consumer Law; or

                     (b)  Part 3-5 of the Australian Consumer Law.

             (4)  If the Federal Court transfers a matter to another court under subsection (1):

                     (a)  further proceedings in the matter must be as directed by the other court; and

                     (b)  the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court.

138D   Transfer of matters by a State or Territory court

             (1)  This section applies if:

                     (a)  a proceeding is pending in a court (other than the Supreme Court) of a State or a Territory; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under:

                              (i)  Division 3 of Part 3-1 of the Australian Consumer Law; or

                             (ii)  Part 3-5 of the Australian Consumer Law; or

                            (iii)  Chapter 4 of the Australian Consumer Law.

             (2)  The court must, if directed to do so by the Federal Court, transfer to the Federal Court:

                     (a)  the matter; and

                     (b)  such other matters for determination in the proceeding, the determination of which would (apart from any law of a State or of the Northern Territory relating to cross-vesting of jurisdiction) be within the jurisdiction of the Federal Court, as the Federal Court determines.

             (3)  Subject to subsection (4), the court may, on the application of a party to the proceeding or of its own motion, transfer the matter to a court (other than the Supreme Court) of another State or Territory.

             (4)  The court (the first court ) must not transfer a matter to another court under subsection (3) unless:

                     (a)  the other court has power to grant the remedies sought before the first court in the matter; and

                     (b)  it appears to the first court that:

                              (i)  the matter arises out of, or is related to, a proceeding that is pending in the other court; or

                             (ii)  it is otherwise in the interests of justice that the matter be determined by the other court.

             (5)  If the court transfers a matter to another court under subsection (3), further proceedings in the matter must be as directed by the other court.

138E   Transfer of proceedings to Family Court

             (1)  If:

                     (a)  a civil proceeding is pending in the Federal Court; and

                     (b)  a matter for determination in the proceeding arises under this Part or the Australian Consumer Law, other than under:

                              (i)  Division 3 of Part 3-1 of the Australian Consumer Law; or

                             (ii)  Part 3-5 of the Australian Consumer Law;

the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court.

             (2)  Subject to subsection (3), if a proceeding is transferred to the Family Court under subsection (1):

                     (a)  the Family Court has jurisdiction to hear and determine the proceeding; and

                     (b)  the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether because of paragraph (a) or otherwise):

                              (i)  that are associated with matters arising in the proceeding; or

                             (ii)  that, apart from subsection 32(1) of the Federal Court of Australia Act 1976 , the Federal Court would have had jurisdiction to hear and determine in the proceeding; and

                     (c)  the Family Court may, in and in relation to the proceeding:

                              (i)  grant such remedies; and

                             (ii)  make orders of such kinds; and

                            (iii)  issue, and direct the issue of, writs of such kinds;

                            as the Federal Court could have granted, made, issued or directed the issue of, in and in relation to the proceeding; and

                     (d)  remedies, orders and writs granted, made or issued by the Family Court in and in relation to the proceeding have effect, and may be enforced by the Family Court, as if they had been granted, made or issued by the Federal Court; and

                     (e)  appeals lie from judgments of the Family Court given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and

                      (f)  subject to paragraphs (a) to (e) of this subsection, this Act, the regulations, the Federal Court of Australia Act 1976 , the Rules of Court made under that Act, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:

                              (i)  a reference to the Federal Court (other than in the expression the Court or a Judge ) included a reference to the Family Court; and

                             (ii)  a reference to a Judge of the Federal Court (other than in the expression the Court or a Judge ) included a reference to a Family Court Judge; and

                            (iii)  a reference to the expression the Court or a Judge when used in relation to the Federal Court included a reference to a Family Court Judge sitting in Chambers; and

                            (iv)  a reference to a Registrar of the Federal Court included a reference to a Registrar of the Family Court; and

                             (v)  any other necessary changes were made.

             (3)  If any difficulty arises in the application of paragraphs (2)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

             (4)  An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Act to the Family Court.

Division 9 Miscellaneous

139   Intervention by the Commission

             (1)  The Commission may, with the leave of a court and subject to any conditions imposed by the court, intervene in any proceeding instituted under this Part or the Australian Consumer Law.

             (2)  If the Commission intervenes in a proceeding, the Commission is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.

139A   Terms excluding consumer guarantees from supplies of recreational services

             (1)  A term of a contract for the supply of recreational services to a consumer by a person is not void under section 64 of the Australian Consumer Law only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:

                     (a)  the application of all or any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law; or

                     (b)  the exercise of a right conferred by such a provision; or

                     (c)  any liability of the person for a failure to comply with a guarantee that applies under that Subdivision to the supply.

             (2)  Recreational services are services that consist of participation in:

                     (a)  a sporting activity or a similar leisure time pursuit; or

                     (b)  any other activity that:

                              (i)  involves a significant degree of physical exertion or physical risk; and

                             (ii)  is undertaken for the purposes of recreation, enjoyment or leisure.

             (3)  This section does not apply unless the exclusion, restriction or modification is limited to liability for:

                     (a)  death; or

                     (b)  a physical or mental injury of an individual (including the aggravation, acceleration or recurrence of such an injury of the individual); or

                     (c)  the contraction, aggravation or acceleration of a disease of an individual; or

                     (d)  the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual:

                              (i)  that is or may be harmful or disadvantageous to the individual or community; or

                             (ii)  that may result in harm or disadvantage to the individual or community.

             (4)  This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services.

             (5)  The supplier’s conduct is reckless conduct if the supplier:

                     (a)  is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and

                     (b)  engages in the conduct despite the risk and without adequate justification.

139B   Conduct of directors, employees or agents of bodies corporate

             (1)  If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show:

                     (a)  that a director, employee or agent of the body corporate engaged in that conduct within the scope of the actual or apparent authority of the director, employee or agent; and

                     (b)  that the director, employee or agent had that state of mind.

             (2)  Any conduct engaged in on behalf of a body corporate:

                     (a)  by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or

                     (b)  by any other person:

                              (i)  at the direction of a director, employee or agent of the body corporate; or

                             (ii)  with the consent or agreement (whether express or implied) of such a director, employee or agent;

                            if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;

is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the body corporate.

139C   Conduct of employees or agents of persons other than bodies corporate

             (1)  If, in a proceeding under this Part or the Australian Consumer Law in respect of conduct that is engaged in by a person (the principal ) other than a body corporate and to which this Part or the Australian Consumer Law applies, it is necessary to establish the state of mind of the principal, it is sufficient to show:

                     (a)  that an employee or agent of the principal engaged in that conduct within the scope of the actual or apparent authority or the employee or agent; and

                     (b)  the employee or agent had that state of mind.

             (2)  Any conduct engaged in on behalf of a person (the principal ) other than a body corporate:

                     (a)  by an employee or agent of the principal within the scope of the actual or apparent authority of the employee or agent; or

                     (b)  by any other person:

                              (i)  at the direction of an employee or agent of the principal; or

                             (ii)  with the consent or agreement (whether express or implied) of such an employee or agent;

                            if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;

is taken, for the purposes of this Part or the Australian Consumer Law, to have been engaged in also by the principal.

             (3)  If:

                     (a)  a person other than a body corporate is convicted of an offence; and

                     (b)  subsection (1) or (2) applied in relation to the conviction on the basis that the person was the principal mentioned in that subsection; and

                     (c)  the person would not have been convicted of the offence if that subsection had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

139D   Enforcement and recovery of certain fines

             (1)  If a person defaults in paying a fine that has been imposed on the person for an offence against a provision of Chapter 4 of the Australian Consumer Law or section 137G of this Act, a court may:

                     (a)  exercise any power that the court has apart from this section in relation to the enforcement and recovery of the fine; or

                     (b)  make an order (the enforcement order ), on the application of the Commonwealth Minister or the Commission, declaring that the fine is to have effect, and may be enforced, as if it were a judgment debt under a judgment of the court.

             (2)  If:

                     (a)  the court makes an enforcement order; and

                     (b)  the person gives security for the payment of the fine;

the court must cancel the enforcement order.

             (3)  If the court makes an enforcement order, the court may, at any time before the enforcement order is executed:

                     (a)  allow the person a specified time in which to pay the fine; or

                     (b)  allow the person to pay the fine by specified instalments.

             (4)  If the court allows the person a specified time in which to pay the fine:

                     (a)  the enforcement order must not be executed unless the person fails to pay the fine within that time; and

                     (b)  if the person pays the fine within that time—the enforcement order is taken to have been discharged.

             (5)  If the court allows the person to pay the fine by specified instalments:

                     (a)  the enforcement order must not be executed unless the person fails to pay such an instalment at or before the time when it becomes payable; and

                     (b)  if the person pays all those instalments—the enforcement order is taken to have been discharged.

             (6)  The term of a sentence of imprisonment imposed by an order under a law of a State or a Territory applied by section 15A of the Crimes Act 1914 (including an order described in subsection 15A(1AA) of that Act) in respect of a fine is to be calculated at the rate of one day’s imprisonment for each $25 of the amount of the fine that is from time to time unpaid.

139E   Cessation of enforcement orders etc.

             (1)  Subject to this section, an enforcement order in relation to a fine ceases to have effect:

                     (a)  on payment of the fine; or

                     (b)  if the fine is not paid—on full compliance with the enforcement order.

             (2)  Subject to this section, if a person is required under one or more enforcement orders to serve periods of imprisonment, those periods must be served consecutively.

             (3)  If:

                     (a)  a person would, but for this subsection, be required under one or more enforcement orders that relate to 3 or more fines to serve periods of imprisonment that in aggregate are longer than 3 years; and

                     (b)  those fines were imposed (whether or not in the same proceedings) for offences constituted by contraventions:

                              (i)  that occurred within a period of 2 years; and

                             (ii)  that appear to a court to have been of the same nature or of a substantially similar nature;

the court must, by order, declare that the enforcement order or orders cease to have effect in respect of those fines after the person has served an aggregate of 3 years’ imprisonment.

             (4)  If subsection (3) would, but for this subsection, apply to a person with respect to offences committed by the person within 2 or more overlapping periods of 2 years, the court must make an order under that subsection in relation to only one of those periods.

             (5)  The order under subsection (4) must relate to the period which would give the person the maximum benefit under subsection (3).

             (6)  For the purposes of subsection (4), the court may vary or revoke an order made under subsection (3).

139F   Compensation for acquisition of property

             (1)  If the operation of this Part (including Schedule 2 as applied by this Part) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

139G   Regulations

             (1)  The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by Schedule 2 to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to that Schedule.

             (2)  Before the Governor-General makes a regulation for the purposes of paragraph 25(n) of Schedule 2 prescribing a kind of term of a consumer contract, or a kind of effect that such a term has, the Commonwealth 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.

             (3)  Before the Governor-General makes a regulation under subsection (1) for the purposes of paragraph 65(1)(a) of Schedule 2 in relation to supplies of a particular kind, the Commonwealth Minister must be satisfied that:

                     (a)  the laws of the Commonwealth; and/or

                     (b)  the laws of the States and Territories;

adequately provide for consumer rights in relation to supplies of that kind.

             (4)  The regulations may, either unconditionally or subject to such conditions as are specified in the regulations, exempt from the application of Schedule 2 or of specified provisions of Schedule 2:

                     (a)  conduct engaged in by a specified organisation or body that performs functions in relation to the marketing of primary products; or

                     (b)  any of the following:

                              (i)  a specified contract or proposed contract made;

                             (ii)  contracts included in a specified class of contracts made;

                            (iii)  specified conduct entered into;

                            pursuant to or for the purposes of a specified agreement, arrangement or understanding between the Government of Australia and the Government of a foreign country; or

                     (c)  prescribed conduct engaged in in the course of a business carried on by the Commonwealth or by a prescribed authority of the Commonwealth.

             (5)  Strict compliance with a form of application or notice prescribed for the purposes of Schedule 2 is not, and is taken never to have been, required and substantial compliance is, and is taken always to have been, sufficient.

Part XIAA Application of the Australian Consumer Law as a law of a State or Territory

   

140   Definitions

                   In this Part:

application law means:

                     (a)  a law of a participating jurisdiction that applies the applied Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

                     (b)  any regulations or other legislative instrument made under a law described in paragraph (a); or

                     (c)  the applied Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.

applied Australian Consumer Law means (according to the context):

                     (a)  the text described in section 140B; or

                     (b)  that text, applying as a law of a participating jurisdiction, either with or without modifications.

apply , in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:

                     (a)  as in force from time to time; or

                     (b)  as in force at a particular time.

Commonwealth entity means:

                     (a)  an authority of the Commonwealth; or

                     (b)  an officer of the Commonwealth.

imposes a duty has the meaning given by section 140G.

modifications includes additions, omissions and substitutions.

officer , in relation to the Commonwealth, includes the following:

                     (a)  a Minister;

                     (b)  a person who holds:

                              (i)  an office established by or under an Act; or

                             (ii)  an appointment made under an Act; or

                            (iii)  an appointment made by the Governor-General or a Minister but not under an Act;

                     (c)  a person who is a member or officer of an authority of the Commonwealth;

                     (d)  a person who is:

                              (i)  in the service or employment of the Commonwealth, or of an authority of the Commonwealth; or

                             (ii)  employed or engaged under an Act.

participating jurisdiction means a participating State or participating Territory.

participating State means a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the State, either with or without modifications.

participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law and applies the applied Australian Consumer Law as a law of the Territory, either with or without modifications.

Territory means the Australian Capital Territory or the Northern Territory.

140A   Object of this Part

                   The object of this Part is to facilitate the application of the Australian Consumer Law by participating States and participating Territories.

140B   The applied Australian Consumer Law

                   The applied Australian Consumer Law consists of:

                     (a)  Schedule 2; and

                     (b)  the regulations made under section 139G of this Act.

140C   Federal Court may exercise jurisdiction under application laws of Territories

                   The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the applied Australian Consumer Law.

140D   Exercise of jurisdiction under cross-vesting provisions

                   This Part does not affect the operation of any other law of the Commonwealth, or any law of a State or Territory, relating to cross-vesting of jurisdiction.

140E   Commonwealth consent to conferral of functions etc. on Commonwealth entities

             (1)  An application law may confer functions or powers, or impose duties, on a Commonwealth entity for the purposes of the applied Australian Consumer Law.

Note:          Section 140G sets out when such a law imposes a duty on a Commonwealth entity.

             (2)  Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by an application law to the extent to which:

                     (a)  the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth entity; or

                     (b)  the authorisation would otherwise exceed the legislative power of the Commonwealth.

             (3)  The Commonwealth entity cannot perform a duty or function, or exercise a power, under an application law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

140F   How duty is imposed

Application

             (1)  This section applies if an application law purports to impose a duty on a Commonwealth entity.

Note:          Section 140G sets out when such a law imposes a duty on a Commonwealth entity.

State or Territory legislative power sufficient to support duty

             (2)  The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

                     (a)  imposing the duty is within the legislative powers of the State or Territory concerned; and

                     (b)  imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

Note:          If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 140E to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

             (3)  If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

             (4)  If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

             (5)  The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

                     (a)  is within the legislative powers of the Commonwealth; and

                     (b)  is consistent with the constitutional doctrines restricting the duties that may be imposed on the entity.

             (6)  Subsections (1) to (5) do not limit section 140E.

140G   When an application law imposes a duty

                   For the purposes of this Part, an application law imposes a duty on a Commonwealth entity if:

                     (a)  the law confers a function or power on the entity; and

                     (b)  the circumstances in which the function or power is conferred give rise to an obligation on the entity to perform the function or to exercise the power.

140H   Application laws may operate concurrently with this Act

                   This Act is not intended to exclude the operation of any application law, to the extent that the application law is capable of operating concurrently with this Act.

140J   No doubling-up of liabilities

             (1)  If:

                     (a)  an act or omission is an offence against this Act and is also an offence against an application law; and

                     (b)  the offender has been punished for the offence under the application law;

the offender is not liable to be punished for the offence against this Act.

             (2)  If a person has been ordered to pay a pecuniary penalty under an application law, the person is not liable to a pecuniary penalty under this Act in respect of the same conduct.

140K   References in instruments to the Australian Consumer Law

             (1)  A reference in any instrument to the Australian Consumer Law is a reference to:

                     (a)  the Australian Consumer Law as applied under Division 2 of Part XI; and

                     (b)  the applied Australian Consumer Laws of any or all of the participating jurisdictions.

             (2)  Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.