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

Schedule 3 Amendment of the Corporations legislation

   

Australian Securities and Investments Commission Act 2001

1  Subsection 12BA(1)

Insert:

assert a right to payment has the meaning given by section 12BEA.

2  Subsection 12BA(1) (definition of infringement notice provision )

Omit “, subsection 12DC(2)”.

3  Subsection 12BA(1) (definition of misleading )

Omit “has”, substitute “includes”.

4  Subsection 12BA(1) (paragraph (a) of the definition of services )

Omit “ Trade Practices Act 1974 ”, substitute “ Competition and Consumer Act 2010 ”.

5  Subsection 12BA(1)

Insert:

unsolicited financial products means financial products supplied to a person without any request made by the person or on the person’s behalf.

6  Section 12BB

Repeal the section, substitute:

12BB   Misleading representations with respect to future matters

             (1)  If:

                     (a)  a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and

                     (b)  the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of Subdivision D (sections 12DA to 12DN), to be misleading .

             (2)  For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:

                     (a)  a party to the proceeding; or

                     (b)  any other person;

the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.

             (3)  To avoid doubt, subsection (2) does not:

                     (a)  have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or

                     (b)  have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.

             (4)  Subsection (1) does not by implication limit the meaning of a reference in this Division to:

                     (a)  a misleading representation; or

                     (b)  a representation that is misleading in a material particular; or

                     (c)  conduct that is misleading or is likely or liable to mislead;

and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.

7  Subsection 12BC(1)

After “use” (wherever occurring), insert “or consumption”.

8  At the end of Subdivision B of Division 2 of Part 2

Add:

12BEA   Asserting a right to payment

             (1)  For the purposes of this Division, a person is taken to assert a right to payment from another person if the person:

                     (a)  makes a demand for the payment or asserts a present or prospective right to the payment; or

                     (b)  threatens to bring any legal proceedings with a view to obtaining the payment; or

                     (c)  places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or

                     (d)  invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or

                     (e)  sends any invoice or other document that:

                              (i)  states the amount of the payment; or

                             (ii)  sets out the price of unsolicited financial services; or

                            (iii)  sets out the charge for an advertisement, for financial services or financial products, that has been published;

                            and does not contain a statement, to the effect that the document is not an assertion of a right to a payment, that complies with any requirements prescribed by the regulations.

             (2)  For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person is taken to have been sent by that person unless the contrary is established.

9  Paragraph 12CC(2)(j)

Repeal the paragraph, substitute:

                      (j)  if there is a contract between the supplier and the service recipient for the supply of the financial services:

                              (i)  the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the service recipient; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the supplier and the service recipient in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the supplier or the service recipient engaged in, in connection with their commercial relationship, after they entered into the contract; and

10  Paragraph 12CC(2)(ja)

Before “whether”, insert “without limiting paragraph (j),”.

11  Paragraph 12CC(3)(j)

Repeal the paragraph, substitute:

                      (j)  if there is a contract between the acquirer and the business supplier for the acquisition of the financial services:

                              (i)  the extent to which the acquirer was willing to negotiate the terms and conditions of the contract with the business supplier; and

                             (ii)  the terms and conditions of the contract; and

                            (iii)  the conduct of the acquirer and the business supplier in complying with the terms and conditions of the contract; and

                            (iv)  any conduct that the acquirer or the business supplier engaged in, in connection with their commercial relationship, after they entered into the contract; and

12  Paragraph 12CC(3)(ja)

Before “whether”, insert “without limiting paragraph (j),”.

13  Subsection 12CC(11) (definition of applicable industry code )

Omit “ Trade Practices Act 1974 ”, substitute “ Competition and Consumer Act 2010 ”.

14  Subsection 12CC(11) (definition of industry code )

Omit “ Trade Practices Act 1974 ”, substitute “ Competition and Consumer Act 2010 ”.

15  Subsection 12DB(1)

Repeal the subsection, substitute:

             (1)  A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services:

                     (a)  make a false or misleading representation that services are of a particular standard, quality, value or grade; or

                     (b)  make a false or misleading representation that a particular person has agreed to acquire services; or

                     (c)  make a false or misleading representation that purports to be a testimonial by any person relating to services; or

                     (d)  make a false or misleading representation concerning:

                              (i)  a testimonial by any person; or

                             (ii)  a representation that purports to be such a testimonial;

                            relating to services; or

                     (e)  make a false or misleading representation that services have sponsorship, approval, performance characteristics, uses or benefits; or

                      (f)  make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

                     (g)  make a false or misleading representation with respect to the price of services; or

                     (h)  make a false or misleading representation concerning the need for any services; or

                      (i)  make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); or

                      (j)  make a false or misleading representation concerning a requirement to pay for a contractual right that:

                              (i)  is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); and

                             (ii)  a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

Note:          Failure to comply with this subsection is an offence (see section 12GB).

          (1A)  For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in paragraph (1)(c) or (d), the representation is taken to be misleading unless evidence is adduced to the contrary.

          (1B)  To avoid doubt, subsection (1A) does not:

                     (a)  have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or

                     (b)  have the effect of placing on any person an onus of proving that the representation is not misleading.

16  Subsection 12DC(2)

Repeal the subsection.

Note:       The heading to section 12DC is altered by omitting “ representations and other misleading or offensive conduct ”, and substituting “ or misleading representations ”.

17  Subsection 12DC(2B)

Repeal the subsection.

18  Subsection 12DC(2C)

Omit “paragraphs (2)(b) and (2A)(b)”, substitute “paragraph (2A)(b)”.

19  Paragraph 12DE(1)(a)

Omit “gifts, prizes or other free items”, substitute “any rebate, gift, prize or other free item”.

Note:       The heading to section 12DE is altered by omitting “ gifts and prizes ”, and substituting “ rebates, gifts, prizes etc. ”.

20  Paragraph 12DE(1)(b)

Repeal the paragraph, substitute:

                     (b)  the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:

                              (i)  the supply or possible supply of financial services; or

                             (ii)  the promotion by any means of the supply or use of financial services; or

                            (iii)  the sale or grant, or the possible sale or grant, of a financial product that consists of, or includes, an interest in land; or

                            (iv)  the promotion by any means of a financial product that consists of, or includes, an interest in land; and

21  Paragraph 12DE(1)(c)

Omit “them” (wherever occurring), substitute “it”.

22  After subsection 12DE(2)

Insert:

          (2A)  A person contravenes this subsection if:

                     (a)  the person offers any rebate, gift, prize or other free item; and

                     (b)  the person offers the rebate, gift, prize or other free item in trade or commerce, in connection with:

                              (i)  the supply or possible supply of financial services; or

                             (ii)  the promotion by any means of the supply or use of financial services; or

                            (iii)  the sale or grant, or the possible sale or grant, of a financial product that consists of, or includes, an interest in land; or

                            (iv)  the promotion by any means of a financial product that consists of, or includes, an interest in land; and

                     (c)  the person fails, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, to provide the rebate, gift, prize or other free item in accordance with the offer.

Note:          Failure to comply with this subsection is an offence (see section 12GB).

          (2B)  Subsection (2A) does not apply if:

                     (a)  the person’s failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person’s control; and

                     (b)  the person took reasonable precautions and exercised due diligence to avoid the failure.

          (2C)  Subsection (2A) does not apply to an offer that the person makes to another person if:

                     (a)  the person offers to the other person a different rebate, gift, prize or other free item as a replacement; and

                     (b)  the other person agrees to receive the different rebate, gift, prize or other free item.

          (2D)  For the purposes of the application of the Criminal Code in relation to subsection (2A), paragraph (2A)(b) is taken to be a circumstance in which the conduct described in paragraph (2A)(a) occurs.

23  Subsection 12DE(3)

Omit “paragraph (1)(b)”, substitute “paragraphs (1)(b) and (2A)(b) and (c)”.

24  At the end of section 12DE

Add:

             (4)  In this section:

interest , in relation to land, has the same meaning as in subsection 12DC(3).

25  At the end of subsection 12DM(1)

Add “or unsolicited financial products”.

Note:       The heading to section 12DM is altered by adding at the end “ etc. ”.

26  After subsection 12DM(1A)

Insert:

       (1AA)  A person must not, in trade or commerce, send to another person an invoice or other document that:

                     (a)  states the amount of a payment, or sets out the charge, for supplying unsolicited financial services or unsolicited financial products; and

                     (b)  does not contain a warning statement that complies with the requirements set out in the regulations.

Note:          Failure to comply with this subsection is an offence (see section 12GB).

       (1AB)  Subsection (1AA) does not apply if the person had reasonable cause to believe that there was a right to the payment or charge.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1AB), see subsection 13.3(3) of the Criminal Code .

27  Subsection 12DM(1B)

After “subsection (1)”, insert “or (1AA)”.

28  Subsections 12DM(2) and (3)

Repeal the subsections.

29  After section 12DM

Insert:

12DMA   Liability of recipient for unsolicited financial services etc.

                   If a person, in trade or commerce, supplies unsolicited financial services or unsolicited financial products to another person, the other person:

                     (a)  is not liable to make any payment for the services or products; and

                     (b)  is not liable for loss or damage as a result of the supply of the services or products.

12DMB   Assertion of right to payment for unauthorised advertisements

             (1)  A person must not assert a right to payment from another person of a charge for placing, in a publication, an advertisement, for financial services or financial products, relating to:

                     (a)  the other person; or

                     (b)  the other person’s profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note:          Failure to comply with this subsection is an offence (see section 12GB).

             (2)  A person must not send to another person an invoice or other document that:

                     (a)  states the amount of a payment, or sets out the charge for placing, in a publication, an advertisement, for financial services or financial products, relating to:

                              (i)  the other person; or

                             (ii)  the other person’s profession, business, trade or occupation; and

                     (b)  does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note:          Failure to comply with this subsection is an offence (see section 12GB).

             (3)  Subsections (1) and (2) do not apply to an advertisement that is placed in a publication published by a person who is:

                     (a)  the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or

                     (b)  a body corporate related to such a publisher; or

                     (c)  the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or

                     (d)  a person specified in the regulations.

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

             (4)  A person:

                     (a)  is not liable to make any payment to another person; and

                     (b)  is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication, an advertisement for financial services or financial products, unless the person has authorised the publishing of the advertisement.

             (5)  A person is not taken for the purposes of this section to have authorised the placing, in a publication, of an advertisement, unless:

                     (a)  a document authorising the placing of the advertisement has been signed by the person or by another person authorised by him or her; and

                     (b)  a copy of the document has been given to the person before the right to payment of a charge for the placing of the advertisement is asserted; and

                     (c)  the document specifies:

                              (i)  the name and address of the person placing the advertisement; and

                             (ii)  particulars of the advertisement; and

                            (iii)  the amount of the charge for the placing of the advertisement, or the basis on which the charge is, or is to be, calculated.

             (6)  In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person knew or had reasonable cause to believe that the person against whom a right to payment was asserted had authorised the placing of the advertisement.

30  Section 12DN

Repeal the section, substitute:

12DN   Application of provisions of this Division to information providers

General rule

             (1)  Sections 12DA, 12DB, 12DC and 12DF do not apply to a publication of matter by an information provider if:

                     (a)  in any case—the information provider made the publication in the course of carrying on a business of providing information; or

                     (b)  if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992 —the publication was by way of a radio or television broadcast by the information provider.

Exception—advertisements

             (2)  Subsection (1) does not apply to a publication of an advertisement.

Exception—information provider connected with supply of financial services

             (3)  Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, financial services (the publicised financial services ), if:

                     (a)  the publicised financial services were services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

                     (b)  the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies financial services of the same kind as the publicised financial services; or

                     (c)  the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies financial services of the same kind as the publicised financial services.

Exception—information provider connected with sale etc. of financial products consisting of etc. interests in land

             (4)  Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of financial products that consist of, or include, interests in land, or the promotion by any means of the sale or grant of financial products that consist of, or include, interests in land (the publicised financial products ), if:

                     (a)  the publicised financial products were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or

                     (b)  the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants financial products of the same kind as the publicised financial products; or

                     (c)  the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants financial products of the same kind as the publicised financial products.

Definitions

             (5)  In this section:

information provider means a person who carries on a business of providing information.

interest , in relation to land, has the same meaning as in subsection 12DC(3).

             (6)  Without limiting subsection (5), each of the following is an information provider :

                     (a)  the holder of a licence granted under the Broadcasting Services Act 1992 ;

                     (b)  a person who is the provider of a broadcasting service under a class licence under that Act;

                     (c)  the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 ;

                     (d)  the Australian Broadcasting Corporation;

                     (e)  the Special Broadcasting Service Corporation.

31  Section 12GXC (table item 2)

Omit “, subsection 12DC(2)”.

32  Paragraphs 102(2)(e) and (2B)(b)

Omit “ Trade Practices Act 1974 ”, substitute “ Competition and Consumer Act 2010 ”.

Corporations Act 2001

33  Section 206EA

Repeal the section, substitute:

206EA   Disqualification under the Competition and Consumer Act 2010 etc.

                   A person is disqualified from managing corporations if a court order disqualifying the person from managing corporations is in force under:

                     (a)  section 86E of the Competition and Consumer Act 2010 ; or

                     (b)  section 248 of Schedule 2 to that Act, as that section applies as a law of the Commonwealth, a State or a Territory.

34  At the end of subsection 1349(1)

Add:

               ; or (o)  an order under section 12GLD of the ASIC Act.

35  At the end of subsection 1349(3)

Add:

              ; or (m)  an order under section 12GLD of the ASIC Act.

36  At the end of subsection 1349(4)

Add:

                ; or (j)  an order under section 12GLD of the ASIC Act.