Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010. ComLaw Authoritative Act C2010A00044
An Act to amend the Trade Practices Act 1974 and the Australian Securities and Investments Commission Act 2001, and for other purposes
1 Short title
Cites this Act as the Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010.
trade-practices-amendment-australian-consumer-law-act.pdf, p.5
Establishes the citation format for this Act.
2 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.6
2 Commencement
Commencement rules for provisions in the Act.
1 Section 1
Table of sections and commencement provision
14 April 2010
2 Section 2
1 January 2010—1 July 2010.
Prohibition on specifying a day before July 1, 2010.
1 July 2010
3 Section 3
15 April 2010
4 Section 4
Conditional commencement of provision(s) covered by table item 2.
5 Section 5
6 Section 6
Conditional commencement of provisions based on event occurrence
trade-practices-amendment-australian-consumer-law-act.pdf, p.7
7 Section 7
Schedule 2 items 42 to 74 at the same time as the provision(s) covered by table item 2.
8 Section 8
9 Section 9
10 Section 10
11 Section 11
12 Section 12
13 Section 13
The day after this Act receives the Royal Assent.
14 Section 14
3 Schedule(s)
Amendment of Acts specified in a Schedule
4 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Schedule terms have effect according to their terms.
trade-practices-amendment-australian-consumer-law-act.pdf, p.8
1 At the end of the Act
trade-practices-amendment-australian-consumer-law-act.pdf, p.9
1 Definitions
Defines terms used in the Australian Consumer Law
Definitions must be clear and unambiguous
6 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Must provide transparent information about consumer contracts.
trade-practices-amendment-australian-consumer-law-act.pdf, p.10
2 Unfair terms of consumer contracts
2(1) Unfair terms of consumer contracts
Unfair terms in consumer contracts are void.
(a) the term is unfair; and (b) the contract is a standard form contract.
The term is void if it is unfair and the contract is a standard form contract.
Unfair terms are void during the contract period
The term is void if it is unfair and the contract is a standard form contract during the contract period.
Unfair terms are void if and only if they are unfair and the contract is a standard form contract
2(2) Unfair terms of consumer contracts
Contract continues to bind parties if it can operate without the unfair term.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
Requires a relation between identifiable temporal intervals.
Conditional commencement is Undertaking, not Prohibition.
2(3) Unfair terms of consumer contracts
3 Meaning of unfair
3(1) Meaning of unfair
A term of a consumer contract is unfair if it would cause a significant imbalance in the parties' rights and obligations arising under the contract.
Imposes a duty on the State to ensure fairness in consumer contracts.
(1) A term of a consumer contract is unfair if: (a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
3(2) Meaning of unfair
Court must consider certain factors when determining if a term is unfair.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
Court considers factors within a certain timeframe.
Court considers factors that affect multiple parties.
3(3) Meaning of unfair
(3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term.
Temporal intervals are relevant for transparency
Transparency is relevant for AI applications
3(4) Meaning of unfair
Term is presumed not reasonably necessary to protect legitimate interests unless proven otherwise.
4 Examples of unfair terms
Examples of unfair terms in consumer contracts
trade-practices-amendment-australian-consumer-law-act.pdf, p.11
Prohibits specific types of unfair terms in consumer contracts
(1) Without limiting section 3, the following are examples...
8 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Terms that permit unilateral determination of contract breach or interpretation, limit vicarious liability, assign contracts without consent, limit right to sue, limit evidence, impose evidential burden, or prescribe effects on consumers and business.
trade-practices-amendment-australian-consumer-law-act.pdf, p.12
Prohibits terms that permit unilateral determination of contract breach or interpretation, limit vicarious liability, assign contracts without consent, limit right to sue, limit evidence, or impose evidential burden.
(h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;
Prohibits terms that limit vicarious liability for agents.
(i) a term that limits, or has the effect of limiting, one party’s vicarious liability for its agents;
Prohibits terms that permit assignment of contracts without consent.
(j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party’s consent;
Prohibits terms that limit right to sue.
(k) a term that limits, or has the effect of limiting, one party’s right to sue another party;
Prohibits terms that limit evidence in proceedings.
(l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;
Prohibits terms that impose evidential burden.
(m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;
5 Terms that define main subject matter of consumer contracts etc.
5(1) Terms that define main subject matter of consumer contracts etc.
Exemptions from Section 2 for certain terms in consumer contracts
Section 2 does not apply to a term of a consumer contract
to the extent that, but only to the extent that, the term defines the main subject matter of the contract; or sets the upfront price payable under the contract; or is a term required, or expressly permitted, by a law of the Commonwealth or a State or Territory.
(1) Section 2 does not apply to a term of a consumer contract to the extent that, but only to the extent that, the term defines the main subject matter of the contract; or sets the upfront price payable under the contract; or is a term required, or expressly permitted, by a law of the Commonwealth or a State or Territory.
5(2) Terms that define main subject matter of consumer contracts etc.
The upfront price is the consideration that must be provided for the supply, sale or grant under the contract.
7 Standard form contracts
trade-practices-amendment-australian-consumer-law-act.pdf, p.13
7(1) Standard form contracts
7(2) Standard form contracts
Court must consider specific factors when determining if a contract is standard form.
Court may take into account such matters as it thinks relevant.
Court MUST consider the specified factors.
Factors relate to specific characteristics of a party or transaction.
(e) whether the terms of the contract (other than the terms referred to in section 5(1)) take into account the specific characteristics of another party or the particular transaction;
The factors contain information about the specific characteristics of a party or transaction.
Court must consider all relevant matters.
A court may take into account such matters as it thinks relevant, but MUST take into account the following:
A court MUST consider all relevant matters when determining if a contract is standard form.
(f) any other matter prescribed by the regulations.
A court MUST consider all additional matters when determining if a contract is standard form.
8 Contracts to which this Part does not apply
8(1) Contracts to which this Part does not apply
8(2) Contracts to which this Part does not apply
Exemptions from the Australian Consumer Law
10 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Does not apply to contracts of certain types.
trade-practices-amendment-australian-consumer-law-act.pdf, p.14
2 Application and transitional provisions
Part 2 of Schedule 2 to the Trade Practices Act 1974 applies to contracts entered into on or after the commencement of this Schedule.
The provision applies to contracts entered into on or after the commencement of this Schedule.
The provision applies to contracts entered into between the commencement of this Schedule and a future date.
3 Subsection 4(1)
trade-practices-amendment-australian-consumer-law-act.pdf, p.15
Describes the relationship between terms
4 Subsection 4(1)
Defines provision of Australian Consumer Law
5 After section 4KA
4KB References to the Australian Consumer Law etc.
12 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.16
4KC Contraventions of the Australian Consumer Law
No conduct is taken to contravene the Australian Consumer Law.
Does not contravene the Australian Consumer Law
6 After paragraph 5(1)(e)
Inserts the Australian Consumer Law into this Act.
7 Paragraph 5(1)(f)
Omit “or (e)”, substitute “, (e) or (ea)”.
8 At the end of subparagraphs 6(2)(a)(i) and (ii), (2)(b)(i) and
Add 'or' to the end of certain headings.
9 After paragraph 6(2)(c)
Prohibits references in Part 2 of the Australian Consumer Law to certain contracts.
10 After subsection 6(3)
Inserts provisions of Part 2 ComLaw Authoritative Act into the Australian Consumer Law
11 After Part X
trade-practices-amendment-australian-consumer-law-act.pdf, p.17
130 Application of the Australian Consumer Law in relation to
The Australian Consumer Law applies to corporations.
131 Division does not apply to financial services etc.
131(1) Division does not apply to financial services etc.
Division does not apply to financial services.
131(2) Division does not apply to financial services etc.
Part 2 of the Australian Consumer Law does not apply to financial products or contracts for the supply, or possible supply, of services that are financial services.
Prohibition on application of Part 2 to financial products and services contracts
132 Saving of other laws and remedies
14 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.18
133 Definitions
Defines terms related to the Australian Consumer Law
...the applied Australian Consumer Law, applying as a law of the participating jurisdiction...
apply, in relation to the applied Australian Consumer Law, means apply the applied Australian Consumer Law by reference:
officer, in relation to the Commonwealth, includes...
...a person who is a member or officer of an authority of the Commonwealth;
Classifies jurisdictions into categories
participating jurisdiction means a participating State or participating Territory.
...a State that is a party to the Intergovernmental Agreement for the Australian Consumer Law;
participating Territory means a Territory that is a party to the Intergovernmental Agreement for the Australian Consumer Law.
...the Australian Capital Territory or the Northern Territory;
134 Object of this Division
Facilitate application of Australian Consumer Law by participating States and Territories.
trade-practices-amendment-australian-consumer-law-act.pdf, p.19
Obligation to facilitate application of Australian Consumer Law.
135 The applied Australian Consumer Law
135(1) The applied Australian Consumer Law
Defines the scope of the Australian Consumer Law
Requires temporal intervals for certain provisions
135(2) The applied Australian Consumer Law
The Australian Consumer Law must be applied.
16 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
References to corporations are to include references to persons who are not corporations.
trade-practices-amendment-australian-consumer-law-act.pdf, p.20
136 Federal Court may exercise jurisdiction under application laws
Federal Court may exercise jurisdiction under application laws
137 Exercise of jurisdiction under cross-vesting provisions
No effect on other laws regarding cross-vesting of jurisdiction
Does not impose a duty or obligation on the Commonwealth or States
138 Commonwealth consent to conferral of functions etc. on
138(1) Commonwealth consent to conferral of functions etc. on
Imposes duties on a Commonwealth entity for the purposes of the applied Australian Consumer Law.
Imposes duties on a Commonwealth entity.
138(2) Commonwealth consent to conferral of functions etc. on
No conferral of function or power without Commonwealth consent.
Prohibits conferral of function or power without Commonwealth consent.
138(3) Commonwealth consent to conferral of functions etc. on
Agreement between Commonwealth and State/Territory required for conferral of functions etc.
Requires agreement between Commonwealth and State/Territory
Conferral of function or power without agreement
139 How duty is imposed
trade-practices-amendment-australian-consumer-law-act.pdf, p.21
139(1) How duty is imposed
Duty imposed on Commonwealth entities by application law
Section imposes duty on Commonwealth entity
139(2) How duty is imposed
Duty is not imposed by this Act to the extent it exceeds State legislative powers.
139(3) How duty is imposed
Duty imposed by law of Commonwealth if necessary for validity
Law of Commonwealth required for duty validity
139(4) How duty is imposed
Parliament's intention to rely on available powers under the Constitution to support duty imposition.
Parliament relies on available powers under the Constitution.
The Parliament intends to rely on these powers.
Parliament imposes the duty through this Act.
Parliament supports the imposition of the duty through available powers under the Constitution.
Parliament enacts this provision to impose the duty.
Parliament authorizes the imposition of the duty through this Act.
139(5) How duty is imposed
Duty is taken to be imposed by this Act in accordance with subsection (3) only.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3)
within the legislative powers of the Commonwealth
Imposing the duty must be within the legislative powers of the Commonwealth
(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:
consistent with constitutional doctrines restricting the duties that may be imposed on the entity
Imposing the duty must be consistent with constitutional doctrines restricting the duties that may be imposed on the entity
139(6) How duty is imposed
Duty is not limited by subsections (1) to (5)
18 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.22
140 When an application law imposes a duty
Application law imposes a duty on Commonwealth entities if it confers a function or power and gives rise to an obligation.
If the law confers a function or power, then it imposes an obligation.
The circumstances in which the function or power is conferred give rise to an obligation during that time.
Therefore, it imposes an obligation during that time.
141 Application laws may operate concurrently with this Act
Application laws may operate concurrently with this Act.
142 No doubling-up of liabilities
142(1) No doubling-up of liabilities
No punishment for offence against Act if already punished under application law
142(2) No doubling-up of liabilities
No liability for same conduct under both laws
(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.
The same conduct is covered by this Act and the other law
143 References in instruments to the Australian Consumer Law
143(1) References in instruments to the Australian Consumer Law
References to Australian Consumer Law must include application under Division 1 and participating jurisdictions.
Reference to law includes application under Division 1 and participating jurisdictions.
143(2) References in instruments to the Australian Consumer Law
Contrary intention in instrument or context requires exception to subsection (1) effect.
Instrument or context requires exception.
20 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.24
1 Before section 77
76E Pecuniary penalties—consumer protection etc.
76E(1) Pecuniary penalties—consumer protection etc.
Contravention of specific provisions is prohibited.
76E(2) Pecuniary penalties—consumer protection etc.
Determine pecuniary penalty considering relevant matters
Imposes a duty on the State to determine pecuniary penalty
76E(3) Pecuniary penalties—consumer protection etc.
Maximum pecuniary penalty amounts for certain acts and omissions
The number of penalty units is not to exceed...
22 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Maximum penalty units for certain acts or omissions
trade-practices-amendment-australian-consumer-law-act.pdf, p.26
Upper limit on penalty units for certain entities
(a) if the person is a body corporate—150; or (b) if the person is not a body corporate—30.
Multiple provisions apply to contravention
If conduct constitutes a contravention of 2 or more provisions referred to in paragraph (1)(a):
...but a person is not liable to more than one pecuniary penalty under this section...
Maximum number of pecuniary penalties for same conduct
(b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
76F Pecuniary penalties under section 76E and offences
76F(1) Pecuniary penalties under section 76E and offences
Court cannot make an order under section 76E against a person in relation to certain consumer protection breaches.
Court cannot make an order under section 76E.
76F(2) Pecuniary penalties under section 76E and offences
Proceedings for an order under section 76E are stayed if criminal proceedings are started or have already been started against the person for an offence.
Prohibits proceedings under section 76E if criminal proceedings are started or have already been started.
(2) Proceedings for an order under section 76E against a person in relation to a consumer protection breach are stayed...
...the proceedings may be resumed if the person is not convicted of the offence.
Describes the temporal relationship between criminal proceedings and section 76E proceedings.
Describes the recurring nature of criminal proceedings and section 76E proceedings.
Permits resumption of section 76E proceedings if the person is not convicted of the offence.
...Otherwise, the proceedings are dismissed.
Describes the relationship between criminal conviction and section 76E proceedings.
76F(3) Pecuniary penalties under section 76E and offences
Criminal proceedings can be started against a person for conduct substantially the same as a consumer protection breach.
76F(4) Pecuniary penalties under section 76E and offences
Prevents previous evidence from being used in criminal proceedings if the conduct is substantially the same as a previously claimed consumer protection breach.
Prevents previous evidence from being used in criminal proceedings.
2 At the end of subsection 77(1)
trade-practices-amendment-australian-consumer-law-act.pdf, p.27
24 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.28
3 Subsection 77A(3) (at the end of the definition of civil
Add a pecuniary penalty under section 76E to the definition of civil liability
Adding a pecuniary penalty to the definition of civil liability
4 Subparagraph 79B(a)(i)
Substitute section numbers in a provision.
5 At the end of section 85
Court may relieve person from liability to pecuniary penalty if they acted honestly and reasonably.
6 Paragraph 86D(1)(a)
Omit section 76, substitute with section 76 or 76E.
Prohibits omitting section 76 and substituting with section 76 or 76E.
7 Before subsection 86E(2)
Disqualification from managing corporations for a period considered appropriate by the Court.
trade-practices-amendment-australian-consumer-law-act.pdf, p.29
8 Subsection 86E(2)
Omit ‘or (1A)’, substitute ‘, (1A) or (1B)”.
9 Subsection 86E(3)
Insertion of subsection (1B) after subsection (1)
26 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.30
10 Subsection 4(1)
11 Subsection 4(1)
Defines 'substantiation notice compliance period'
12 Before Part VII
87ZL Commission may require claims to be substantiated etc.
87ZL(1) Commission may require claims to be substantiated etc.
Commission may require claims to be substantiated.
87ZL(2) Commission may require claims to be substantiated etc.
The Commission may require a person to provide information and/or documents within 21 days.
The person must provide information and/or documents.
The person must provide information and/or documents within a specified time period.
21 days after the notice is given to the person.
87ZL(3) Commission may require claims to be substantiated etc.
Commission may require substantiation of claims or representations.
(a) substantiating or supporting the claim or representation; (b) if the claim or representation relates to a supply, or possible supply, of goods or services by a corporation—substantiating the quantities in which, or the period for which, the corporation is or will be able to make such a supply.
Requires substantiation of claims or representations.
Relevant information must be provided for substantiation.
87ZL(4) Commission may require claims to be substantiated etc.
Notice must be given to a person, specifying the claim or representation and its effect.
87ZL(5) Commission may require claims to be substantiated etc.
The Commission may require substantiation of claims.
87ZL(6) Commission may require claims to be substantiated etc.
Exemption for prescribed information providers
28 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Does not have a commercial relationship with another person for purposes other than publishing or supplying goods/services.
trade-practices-amendment-australian-consumer-law-act.pdf, p.32
(c) does not have a commercial relationship with the other person
(c) does not have a commercial relationship with the other person other than for the purpose of: (ii) the other person supplying goods or services, or selling or granting interests in land (within the meaning of section 53A), to the person.
Lack of commercial relationship for other purposes
(c) does not have a commercial relationship with the other person other than for the purpose of: (i) publishing claims or representations promoting, or apparently intended to promote, the other person’s discovery or activities;
87ZM Extending periods for complying with substantiation notices
87ZM(1) Extending periods for complying with substantiation notices
A person may apply for an extension of the period to comply with a substantiation notice.
87ZM(2) Extending periods for complying with substantiation notices
Commission may extend period for complying with notice
87ZN Compliance with substantiation notices
87ZN(1) Compliance with substantiation notices
Comply with substantiation notice within specified period.
87ZN(2) Compliance with substantiation notices
Compliance period for substantiation notices
(2) The substantiation notice compliance period for a substantiation notice is:
87ZN(3) Compliance with substantiation notices
Refusal to provide information or document in response to substantiation notice
Refusing to comply with a substantiation notice
Individual refuses to provide information or document
Doubt about the individual's obligation to comply
Notice may incriminate or expose to penalty
Individual uncertain about providing information or document
Recurring refusal to provide information or document
Rationale for refusing to provide information or document
Individual justifies refusal based on notice's potential consequences
Temporal relationship between substantiation notice and individual's refusal
87ZO False or misleading information etc.
87ZO(1) False or misleading information etc.
Prohibition on giving false or misleading information in compliance with a substantiation notice.
Prohibition on giving false or misleading information.
...in compliance with a substantiation notice.
The provision applies to documents produced in compliance with a substantiation notice.
...documents that contain false or misleading information.
87ZO(2) False or misleading information etc.
Section does not apply to certain information
The section applies to false or misleading information
However, the section does not apply to...
Permission to produce documents with false or misleading information
The section allows for the production of documents containing false or misleading information under certain circumstances
However, the document must be accompanied by a statement that the information is false or misleading
The section applies to false or misleading information before a certain point in time
However, the section does not apply to information that could not have been known to be false or misleading at that point in time
The section applies to false or misleading information until a certain point in time
30 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.34
13 Subsection 4(1)
States the nature of an enforcement proceeding
14 Subsection 4(1)
Defines non-party consumer for conduct enforcement proceedings.
Provides a formal definition for the term.
Insert: non-party consumer, in relation to conduct, means...
15 Section 4L
16 Section 83
Inserts section 87AAA(1) after subsection 87(1A)
17 Subsection 87(1A)
18 After section 87
18(1) After section 87
Court may make orders against a person referred to in subsection (2) of this section.
Classifies the provision as part of a larger section
18(2) After section 87
Order against person involved in contravening conduct
Prohibits making order against person involved in contravening conduct
may be made against the person who engaged in the contravening conduct or a person involved in that conduct.
Establishes temporal relation between persons subject to order and contravening conduct
the person who engaged in the contravening conduct or a person involved in that conduct.
Establishes recurring trace between persons subject to order and contravening conduct
Diffuses responsibility for contravening conduct to persons subject to order
Classifies persons subject to order using artificial intelligence
18(3) After section 87
The Court must consider redressing or preventing loss/damage to non-party consumers before making an order.
18(4) After section 87
Allow application under subsection (1) despite non-institution of enforcement proceeding.
(4) An application may be made under subsection (1)
18(5) After section 87
Application can be made within 6 years after cause of action accrues.
Within 6 years after cause of action accrues
18(6) After section 87
Court may consider conduct when making an order against a person.
32 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.36
32(8) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Court does not need to determine non-party consumers or nature of loss/damage in making an order.
Exemptions from non-party consumers and loss/damage determination
(8) In determining whether to make an order under subsection (1), the Court need not...
...the Court need not make a finding about either of the following matters:
Temporal interval for non-party consumers and loss/damage determination
Ordered trace for non-party consumers and loss/damage determination
Diffusion for non-party consumers and loss/damage determination
Cognitive agent for non-party consumers and loss/damage determination
32(9) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Non-party consumer bound by order if loss or damage is redressed, prevented, or reduced.
Order made under subsection (1) against a person.
Non-party consumer is bound by the order.
No claim, action or demand may be made or taken against the person.
Despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory.
Loss or damage suffered by non-party consumer in relation to contravening conduct.
Loss or damage suffered, or likely to be suffered, by a non-party consumer.
Loss or damage suffered by non-party consumer is related to contravening conduct.
Redress, prevention, or reduction of loss or damage repeated.
Redress, prevention, or reduction of loss or damage is redressed, prevented or reduced in accordance with the order.
Redress, prevention, or reduction of loss or damage is repeated.
Non-party consumer bound by order if conditions are met.
(a) an order is made under subsection (1) against a person; and (b) the loss or damage suffered, or likely to be suffered, by a non-party consumer in relation to the contravening conduct...
Non-party consumer is bound by the order if conditions are met.
32(10) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Section 87AB may limit liability for contravention of section 52.
32(11) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Exempts conduct before commencement from application of section.
34 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Terminates or otherwise affects the operation of an instrument.
trade-practices-amendment-australian-consumer-law-act.pdf, p.38
Prohibits terminating or affecting the operation of an instrument.
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting the operation or effect of the first-mentioned instrument.
(ii) does not terminate or affect the operation of the first-mentioned instrument.
Termination or affecting overlaps with the operation of an instrument.
The termination or affecting occurs during the operation of the first-mentioned instrument.
Termination or affecting is contained within the operation of an instrument.
Termination or affecting diffuses to the operation of an instrument.
The termination or affecting spreads to the operation of the first-mentioned instrument.
Termination or affecting is recognized as a prohibition.
The termination or affecting is identified as a prohibition.
19 Paragraph 87A(1)(d)
20 Paragraph 157(1)(d)
21 Subsection 4(1)
trade-practices-amendment-australian-consumer-law-act.pdf, p.39
22 Subsection 4(1)
Definition of infringement notice compliance period
infringement notice compliance period has the meaning given by section 87ZJ.
23 Subsection 4(1)
Definition of infringement notice provision
Defines the concept of an infringement notice provision
24 After Part VIB
87ZD Purpose and effect of this Part
Issue of infringement notice for alleged contravention
Imposes a duty on the State to issue an infringement notice
36 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Does not require an infringement notice to be issued for a contravention.
trade-practices-amendment-australian-consumer-law-act.pdf, p.40
87ZE Issue of an infringement notice
87ZE(1) Issue of an infringement notice
Commission may issue infringement notice to a person with reasonable grounds.
87ZE(2) Issue of an infringement notice
Commission must not issue more than one infringement notice to the same person for the same alleged contravention.
Prohibition of issuing multiple infringement notices.
87ZE(3) Issue of an infringement notice
Infringement notice has no effect if issued more than 12 months after alleged contravention.
87ZF Matters to be included in an infringement notice
a unique number, day of issue, name and address, Commission contact details, alleged contravention details, penalty information, payment instructions
87ZG Amount of penalty
Specify a pecuniary penalty equal to the number of penalty units
trade-practices-amendment-australian-consumer-law-act.pdf, p.41
38 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.42
the number of penalty units is ... subsection 65C(1) or (3) or 65D(1) or section 65G
Item If the infringement notice is for an alleged contravention of ...
...subsection 65C(1) or (3) or 65D(1) or section 65G
87ZH Effect of compliance with an infringement notice
87ZH(1) Effect of compliance with an infringement notice
Compliance with infringement notice results in obligation to pay penalty.
...and the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice;
Temporal relation between payment and infringement notice
(b) the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice;
...and the infringement notice is not withdrawn under section 87ZK.
Recurring trace of payment and infringement notice
(c) the infringement notice is not withdrawn under section 87ZK.
87ZH(2) Effect of compliance with an infringement notice
No obligation to be regarded as having contravened the infringement notice provision after payment.
87ZH(3) Effect of compliance with an infringement notice
No proceedings can be started or continued against the person by, or on behalf of, the Commonwealth or the Commission in relation to the alleged contravention or the same conduct.
No proceedings can be started or continued.
87ZI Effect of failure to comply with an infringement notice
Liability for failure to comply with infringement notice
trade-practices-amendment-australian-consumer-law-act.pdf, p.43
Failure to comply with infringement notice
87ZJ Infringement notice compliance period for infringement notice
87ZJ(1) Infringement notice compliance period for infringement notice
Defines infringement notice compliance period
87ZJ(2) Infringement notice compliance period for infringement notice
Commission may extend infringement notice compliance period by notice in writing.
87ZJ(3) Infringement notice compliance period for infringement notice
Maximum extension period for infringement notice compliance
Only one extension may be given and the extension must not be for longer than 28 days.
87ZJ(4) Infringement notice compliance period for infringement notice
Must provide notice of extension to the person issued the infringement notice.
87ZJ(5) Infringement notice compliance period for infringement notice
Failure to comply with subsection (4) does not affect the validity of the extension.
87ZJ(6) Infringement notice compliance period for infringement notice
Reference to extended infringement notice compliance period is taken to be a reference to the extended period.
40 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.44
87ZK Withdrawal of an infringement notice
87ZK(1) Withdrawal of an infringement notice
87ZK(2) Withdrawal of an infringement notice
Protection from self-incrimination in proceedings
Protects the person from self-incrimination
87ZK(3) Withdrawal of an infringement notice
Commission may withdraw infringement notice upon request.
Permission to withdraw infringement notice
87ZK(4) Withdrawal of an infringement notice
Content of withdrawal notices must be provided.
Obligation to provide content of withdrawal notices.
87ZK(5) Withdrawal of an infringement notice
Withdrawal notice must state certain information.
name and address of the person, day on which infringement notice was issued, that proceedings may be started or continued against the person
87ZK(6) Withdrawal of an infringement notice
Withdrawal notice must be given within infringement notice compliance period.
87ZK(7) Withdrawal of an infringement notice
Commission must refund amount paid if infringement notice is withdrawn after payment.
Commission has an obligation to refund amount paid.
25 Section 87ZD
trade-practices-amendment-australian-consumer-law-act.pdf, p.45
42 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.46
26 After section 86D
86DA Commission may issue a public warning notice
The Commission may issue a public warning notice about suspected contraventions.
44 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.48
27 Subsection 4(1)
Consumer contract has meaning given by Australian Consumer Law.
Obligation to define consumer contract term
29 Subsection 4(1) (definition of non-party consumer)
Definition of non-party consumer implies a specific condition
31 Subsection 4(1)
Defines 'rely on' in relation to a consumer contract term.
32 Subsection 4(1)
Defines 'unfair' in relation to a term of a consumer contract.
40 At the end of paragraph 80(1)(a)
Enforcement and remedies under the Trade Practices Act 1974
41 Paragraph 80(1)(a)
Repeal of paragraph and substitution with contravention of certain provisions.
trade-practices-amendment-australian-consumer-law-act.pdf, p.49
42 At the end of paragraphs 80(1)(b) to (d)
43 After subsection 80(1B)
Reference to contravention of consumer contract term declared unfair by Court.
Contravention of consumer contract term declared unfair by Court.
Reference to specific consumer contract term.
Term of consumer contract declared under section 87AC
46 Paragraphs 84(1)(b) and (3)(b)
Insertion of Australian Consumer Law provision
47 At the end of subsection 86(1)
Add “or has been instituted in relation to subsection 2(1) of the Australian Consumer Law (as applied under Division 1 of Part XI)”.
48 Subsection 86(1A)
49 Subsection 86(2)
Imposes a duty on the State to enforce and provide remedies under the Trade Practices Act 1974
46 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Insertion of provision into Australian Consumer Law
trade-practices-amendment-australian-consumer-law-act.pdf, p.50
50 Paragraphs 86A(1)(b), (4)(b) and (5)(b) and 86B(1)(b)
56 Subsection 87(1)
Insertion of 'or of the Australian Consumer Law' after certain phrases.
57 Paragraphs 87(1A)(a) and (b) and (1B)(a)
Insertion of 'or a provision of the Australian Consumer Law' after certain phrases.
58 Subsection 87(1C)
Insertion of additional provision in Australian Consumer Law
59 After subsection 87(5)
Reference to contravention of consumer contract term is included.
Inclusion of reference to contravention.
60 Paragraph 87AAA(1)(a)
Repeal of paragraph and substitution with specific conditions.
Prohibition of conduct in contravention of provisions.
Part IVA, Division 1 or 1AAA of Part V, or Part VC
61 Paragraphs 87AAA(1)(b) and (c)
62 Subsection 87AAA(2)
Prohibits making an order under subsection (1) against certain parties.
trade-practices-amendment-australian-consumer-law-act.pdf, p.51
63 Paragraphs 87AAA(3)(a) and (b)
Insert 'or declared term' after 'contravening conduct'
64 Subsection 87AAA(4)
65 Subsection 87AAA(5)
Application can be made within 6 years after declaration or cause of action accrues.
66 Subsection 87AAA(6)
Replace 'subsection (2)' with 'paragraph (2)(a)'
67 After subsection 87AAA(6)
Court may consider conduct of person and non-party consumers in relation to declared term when determining whether to make an order.
68 Paragraph 87AAA(8)(a)
Insertion of term after 'contravening conduct'
48 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.52
69 Paragraph 87AAA(9)(b)
Insert “, or declared term,” after ‘contravening conduct’.
70 Paragraph 87A(1)(b)
Insertion of Australian Consumer Law into a list
72 Paragraph 87A(1)(d)
Insertion of Australian Consumer Law in paragraph 87A(1)(d)
73 At the end of section 87A
Reference to contravention of a provision of the Australian Consumer Law includes reference to applying or relying on, or purporting to apply or rely on, an unfair term declared by the Court.
Prohibits applying or relying on, or purporting to apply or rely on, an unfair term.
Classifies a reference to contravention of a provision as including a reference to applying or relying on, or purporting to apply or rely on, an unfair term.
74 After section 87AB
87AC Declarations
87AC(1) Declarations
Court may declare a term of a consumer contract as unfair.
87AC(1A) Declarations
Consumer contract must be a standard form contract to apply subsection (1)
(1A) Subsection (1) does not apply unless...
...the consumer contract is a standard form contract.
87AC(2) Declarations
Court's power to make declarations is not limited by subsection (1)
1A Subsections 12AE(1) and (3)
Insertion of new subdivision before Subdivision C
trade-practices-amendment-australian-consumer-law-act.pdf, p.53
1 Subsection 12BA(1)
3 Subsection 12BA(1)
Includes attempts to enforce or exercise a right
4 Subsection 12BA(1)
Defines 'transparent' in relation to a consumer contract term.
5 Subsection 12BA(1)
Defines 'unfair' in relation to a consumer contract term.
50 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.54
6 Subsection 12BA(1)
7 After Subdivision B of Division 2 of Part 2
Insertion of subdivision BA—Unfair contract terms
12BF Unfair terms of consumer contracts
12BF(1) Unfair terms of consumer contracts
(1) A term of a consumer contract is void...
12BF(2) Unfair terms of consumer contracts
Contract continues to bind parties if it is capable of operating without the unfair term.
The contract continues to bind the parties.
The contract continues to bind the parties if it is capable of operating without the unfair term.
The contract continues to bind the parties until a later time.
12BF(3) Unfair terms of consumer contracts
Contract at least one party is an individual...
12BG Meaning of unfair
12BG(1) Meaning of unfair
A term of a consumer contract is unfair if it causes a significant imbalance in the parties' rights and obligations, is not reasonably necessary to protect legitimate interests, and would cause detriment to a party.
Unfair term implies imbalance in rights and obligations.
(a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract;
Unfair term implies detriment to a party.
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on;
Unfair term causes detriment within a party.
Unfair term is everywhere in the contract.
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term;
12BG(2) Meaning of unfair
12BG(3) Meaning of unfair
12BG(4) Meaning of unfair
Presumes term not reasonably necessary unless proven otherwise.
(4) For the purposes of paragraph (1)(b)
(4) A term is presumed not to be reasonably necessary...
12BH Examples of unfair terms
trade-practices-amendment-australian-consumer-law-act.pdf, p.55
Prohibits certain types of unfair terms in consumer contracts
(1) Without limiting section 12BG, the following are examples...
52 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Terms that permit unilateral determination of contract breach or interpretation, limit vicarious liability, assign contracts without consent, limit right to sue, limit evidence, impose evidential burden, or prescribe terms with specific effects are prohibited.
trade-practices-amendment-australian-consumer-law-act.pdf, p.56
Prohibits the use of terms with specific effects.
Prohibits terms that allow assignment of contracts without consent.
Prohibits terms that limit a party's right to sue.
Prohibits terms that impose evidential burden on a party.
12BI Terms that define main subject matter of consumer contracts
12BI(1) Terms that define main subject matter of consumer contracts
Section 12BF does not apply to a term of a consumer contract under certain conditions.
(1) Section 12BF does not apply to a term of a consumer contract
(a) defines the main subject matter of the contract; or (b) sets the upfront price payable under the contract; or (c) is a term required, or expressly permitted, by a law of the Commonwealth or a State or Territory.
12BI(2) Terms that define main subject matter of consumer contracts
Upfront price must be provided and disclosed at contract entry.
12BI(3) Terms that define main subject matter of consumer contracts
Consumer contract consideration includes owed principal amount.
Consumer contract is a class/subclass of contracts
12BK Standard form contracts
trade-practices-amendment-australian-consumer-law-act.pdf, p.57
12BK(1) Standard form contracts
12BK(2) Standard form contracts
Factors relate to specific characteristics of parties or transactions.
(a) whether one of the parties has all or most of the bargaining power relating to the transaction;
The factors are BETWEEN the party's bargaining power and the transaction.
Court must consider specified terms in contracts.
(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;
The court MUST consider the specified terms.
Court must consider specified opportunities for negotiation.
(d) whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in subsection 12BI(1);
The court MUST provide the specified opportunities.
54 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.58
12BL Contracts to which this Part does not apply
Exemptions from application of this Part
Exempts consumer contracts from the scope of this Part
Subclass of contracts not covered by this Part
company, managed investment scheme or other kind of body
12BM Contraventions of this Subdivision etc.
Conduct is not taken to contravene this Subdivision merely because of subsection 12BF(1).
Excluding subsection 12BF(1) from contravention
Conduct is not taken to contravene this Subdivision
Temporal overlap between subsection 12BF(1) and this Subdivision
Repeating the scope of subsection 12BF(1) in this Subdivision
Excluding subsection 12BF(1) from the scope of this Subdivision
8 Application and transitional provisions
9 After section 12GB
trade-practices-amendment-australian-consumer-law-act.pdf, p.59
9(1) After section 12GB
Ordering pecuniary penalty for contravention of provision
9(2) After section 12GB
Court must consider relevant matters when determining pecuniary penalty.
(2) In determining the appropriate pecuniary penalty, the Court must...
The Court MUST have regard to all relevant matters...
(2) In determining the appropriate pecuniary penalty, the Court must have regard to all relevant matters including:
The temporal interval is between the act or omission and the loss or damage.
The temporal interval contains the act or omission and the loss or damage.
Duty to consider circumstances of act or omission
(b) the circumstances in which the act or omission took place;
The Court MUST have regard to the circumstances in which the act or omission took place.
(c) whether the person has previously been found by the Court in proceedings under this Subdivision to have engaged in any similar conduct.
The Court MUST have regard to whether the person has previously been found to have engaged in similar conduct.
56 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.60
56(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Criminal proceedings may be started against a person for conduct substantially the same as a consumer protection breach. Maximum pecuniary penalty for certain acts or omissions
Maximum pecuniary penalty for certain acts or omissions
Defines temporal intervals for certain provisions
56(4) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
No more than one pecuniary penalty for the same conduct. Prevents reusing evidence in criminal proceedings for substantially the same conduct as a previous consumer protection breach order.
Prohibits multiple pecuniary penalties for the same conduct.
(4) If conduct constitutes a contravention of 2 or more provisions referred to in paragraph (1)(a):
but (b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
Permits multiple pecuniary penalties for different provisions.
Defines a recurring trace for 'contravention' and 'provision'
Imposes an obligation on the person to not exceed one pecuniary penalty.
Prevents reuse of evidence in criminal proceedings for substantially the same conduct.
Previous consumer protection breach order
56(1) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Court cannot make an order under section 12GBA against a person in relation to certain consumer protection breaches. Commonwealth may recover pecuniary penalty from ASIC.
56(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Time limit for commencing a proceeding under subsection (1) Proceedings for an order under section 12GBA are stayed if criminal proceedings are started or have already been started against the person for an offence.
A proceeding under subsection (1) may be commenced within 6 years after the contravention.
The State must provide a proceeding under subsection (1) within 6 years after the contravention.
(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.
The proceeding must occur during the 6-year period after the contravention.
Prohibits proceedings under section 12GBA if criminal proceedings are started or have already been started.
(2) Proceedings for an order under section 12GBA against a person in relation to a consumer protection breach are stayed...
...the proceedings for the order may be resumed if the person is not convicted of the offence.
Describes the temporal relationship between criminal proceedings and section 12GBA proceedings.
Describes the recurring nature of criminal proceedings and section 12GBA proceedings.
Permits resumption of section 12GBA proceedings if the person is not convicted of the offence.
58 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.62
58(1) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Body corporate cannot indemnify a person against certain liabilities incurred as an officer.
Prohibits indemnification against certain liabilities.
58(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Outcome of proceedings is the outcome of proceedings and any appeal in relation to the proceedings.
58(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Indemnities are void due to subsection (1) not authorizing anything unlawful.
58(4) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Anything that purports to indemnify a person against a liability is void to the extent that it contravenes subsection (1).
Prohibits indemnification against liability
58(5) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Prohibition on conviction of certain offences
Prohibits conviction of certain offences
(5) If, as a result of the operation of Part 2.4 of the Criminal Code...
the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.
Defines temporal interval for punishment
Classifies offences as punishable by fine using AI
10 Paragraph 12GCA(a)
Imposes fines or pecuniary penalties for contraventions of this Division.
11 Section 12GG
trade-practices-amendment-australian-consumer-law-act.pdf, p.63
12 At the end of section 12GI (after the note)
Court may relieve person from liability to pay a pecuniary penalty if they acted honestly and reasonably.
Court may relieve person from liability.
Person has engaged in conduct that relates to a contravention of a provision.
Court may excuse person's conduct if they acted honestly and reasonably.
Court considers all circumstances of the case when deciding whether to relieve or excuse the person.
Court justifies its decision based on the circumstances.
The court's decision is based on a recurring trace of the person's conduct.
The court may relieve or excuse the person from liability.
13 Subsection 12GLB(1)
Prohibit adverse publicity order against a person who has been ordered to pay a pecuniary penalty or is guilty of an offence under section 12GB.
60 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.64
14 Before section 12GM
14(1) Before section 12GM
Disqualification from managing corporations
14(2) Before section 12GM
Court may consider a person's conduct in relation to the management, business or property of any corporation.
(a) the person’s conduct in relation to the management, business or property of any corporation;
(2) In determining under subsection (1) whether the disqualification is justified, the Court may have regard to: (a) the person’s conduct in relation to the management, business or property of any corporation;
This conduct is considered during the determination.
(2) In determining under subsection (1) whether the disqualification is justified, the Court must have regard to: (a) the person’s conduct in relation to the management, business or property of any corporation;
15 After section 206EA
206EB Disqualification under the ASIC Act
Disqualification from managing corporations based on court order
trade-practices-amendment-australian-consumer-law-act.pdf, p.65
16 Paragraph 1274AA(1)(a)
17 After paragraph 1274AA(2)(ab)
Insert court order referred to in section 206EB
62 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.66
18 Subsection 12BA(1)
substantiation notice means a notice under section 12GY.
19 Subsection 12BA(1)
Defines substantiation notice compliance period
20 Before Subdivision H of Division 2 of Part 2
Insert Subdivision GC—Substantiation notices
12GY ASIC may require claims to be substantiated etc.
12GY(1) ASIC may require claims to be substantiated etc.
A person must substantiate claims within 21 days of receiving a substantiation notice. ASIC may require claims to be substantiated.
Must provide substantiation within 21 days.
12GY(2) ASIC may require claims to be substantiated etc.
ASIC may give a written notice requiring the person to provide information and/or documents
Obligation to provide information and/or documents
12GY(3) ASIC may require claims to be substantiated etc.
ASIC may require substantiation of claims and representations.
(a) substantiating or supporting the claim or representation; (b) substantiating the quantities in which, or the period for which, the person is or will be able to make such a supply
Requires substantiation of claims and representations.
12GY(4) ASIC may require claims to be substantiated etc.
Notice must be given to a person and specify the claim or representation it relates to.
notice, explanation of sections 12GYA, 12GYB, and 12GYC
12GY(5) ASIC may require claims to be substantiated etc.
ASIC may require substantiation of claims
12GY(6) ASIC may require claims to be substantiated etc.
64 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.68
64(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Substantiation notice compliance period Exemptions from the section's application Extend period for compliance with notice
Section does not apply to certain types of information
Temporal interval between when information was provided and when it was known to be false or misleading
64(1) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Comply with substantiation notice within specified period. Prohibits giving false or misleading information to ASIC in compliance with a substantiation notice.
64(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Refusal to provide information or produce a document under substantiation notice
Refusal to comply with a substantiation notice
The individual may refuse or fail to give particular information...
The individual is not required to provide the requested information.
Doubting the request for information due to potential incrimination or penalty
There is doubt about the necessity of providing the requested information.
Tracing the request for information through a chain of events
The request for information is part of a larger sequence of actions.
Presenting a counterargument to the request for information
There is a valid reason for not providing the requested information.
Identifying overlapping temporal intervals between requests and refusals
There is an overlap in the timing of the request and refusal.
21 Subsection 12BA(1)
trade-practices-amendment-australian-consumer-law-act.pdf, p.69
22 Subsection 12BA(1)
Insert: non-party consumer, in relation to conduct, means a person who is...
23 Section 12GG
Inserts 'or 12GNB(1)' after subsection 12GM(2)
24 Subsection 12GM(2)
25 Paragraph 12GN(1)(d)
Inserts 'or 12GNB(1)' after certain subsections.
26 After section 12GNA
Prohibition on conduct contravening a provision of Subdivision C or D
Contravening a provision of Subdivision C or D
66 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.70
66(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Order may be made against person who engaged in contravening conduct or a person involved in that conduct.
Holds state responsible for enforcement of prohibition.
66(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Court must consider redress or prevention of loss/damage before making an order.
66(4) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Allow application under subsection (1) despite non-instituted enforcement proceeding.
66(5) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Application can be made within 6 years after the cause of action accrues.
Ability to make an application within a time limit.
Application can be made at any time within a specified interval.
66(6) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Consider conduct of person and non-party consumers in determining whether to make an order under subsection (1)
66(8) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Temporal intervals for non-party consumers and loss/damage determination are not specified
No trace of non-party consumers and loss/damage determination is provided
No diffusion of non-party consumers and loss/damage determination is provided
No cognitive agent is specified for non-party consumers and loss/damage determination
66(9) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
(a) an order is made under subsection (1) against a person; and (b) the loss or damage suffered, or likely to be suffered, by a non-party consumer...
(d) the non-party consumer is bound by the order;
No claim, action, or demand may be made against person.
(f) despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.
No claim, action, or demand may be made against person if loss or damage is redressed, prevented, or reduced.
66(10) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Section 12GNA may limit liability for contravention of section 12DA.
Limits liability for contravention of section 12DA.
Section 12GNA may limit the liability, under an order made under subsection (1) of this section...
of a person for his or her contravention of section 12DA
Restricts liability for contravention of section 12DA.
Introduces uncertainty in liability for contravention of section 12DA.
Implicates limitation on liability for contravention of section 12DA.
66(11) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Exemption from application of section 66(11) for conduct occurring before commencement.
Prohibits application of section for conduct occurring before commencement.
Defines temporal interval for exemption.
(11) This section does not apply in relation to contravening conduct that occurred before the commencement of this section.
Establishes implication between exemption and conduct.
68 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Orders that may be made to redress loss or damage suffered by non-party consumers
trade-practices-amendment-australian-consumer-law-act.pdf, p.72
Includes all or any of the following orders
Orders may specify a date before which the order has effect
27 Paragraph 12HB(1)(b)
Insert 12GNB(1) into the list of alternatives for 12HB(1)(b)
trade-practices-amendment-australian-consumer-law-act.pdf, p.73
Insertion of a new alternative into an existing list
70 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.74
28 Subsection 12BA(1)
29 Subsection 12BA(1)
30 Subsection 12BA(1)
31 After Subdivision GA of Division 2 of Part 2
Insertion of infringement notices subdivision
12GX Purpose and effect of this Subdivision
12GX(1) Purpose and effect of this Subdivision
Issue of infringement notice as an alternative to proceedings for order under section 12GBA. ASIC may issue an infringement notice to a person if reasonable grounds exist.
Issue of infringement notice as an alternative to proceedings for order under section 12GBA.
(1) The purpose of this Subdivision 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 12GBA.
12GX(2) Purpose and effect of this Subdivision
ASIC must not issue more than one infringement notice for the same alleged contravention. No infringement notice required for alleged contravention of infringement notice provision
(2) ASIC must not issue more than one infringement notice to the person for the same alleged contravention of the infringement notice provision.
Restriction on ASIC's actions regarding issuing infringement notices.
Implication of ASIC's prohibition on issuing multiple infringement notices.
(2) This Subdivision does not: (a) require an infringement notice to be issued to a person for an alleged contravention of an infringement notice provision;
(2) This Subdivision does not: (b) affect the liability of a person to proceedings under Subdivision G (sections 12GA to 12GO) in relation to an alleged contravention of an infringement notice provision if:
(2) This Subdivision does not: (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.
12GX(3) Purpose and effect of this Subdivision
Prohibits issuance of infringement notice after 12 months.
(3) 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;
Defines temporal scope of infringement notice.
Defines recurring trace of infringement notices.
72 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.76
72(1) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Pay penalty within infringement notice compliance period.
(a) an infringement notice for an alleged contravention of an infringement notice provision is issued to a person;
the person pays the penalty specified in the infringement notice within the infringement notice compliance period and in accordance with the notice;
(c) the infringement notice is not withdrawn under section 12GXG.
72(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Payment does not imply contravention of infringement notice provision.
72(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
No proceedings can be started or continued against the Commonwealth or ASIC in relation to certain alleged contraventions.
74 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.78
74(1) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Right to withdraw infringement notice Infringement notice compliance period is 28 days after notice issuance.
74(2) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Extend infringement notice compliance period by notice in writing. Protection from adverse inferences against the person or representative making representations to ASIC.
Grant permission to extend infringement notice compliance period.
The person or representative making representations to ASIC is protected from adverse inferences.
ASIC cannot infer adverse inferences against the person or representative.
The person or representative making representations to ASIC is exempt from adverse inferences in proceedings other than those for an offence based on false or misleading evidence.
ASIC cannot infer adverse inferences against the person or representative in proceedings other than those for an offence based on false or misleading evidence.
Protection from adverse inferences against representatives
The representative making representations to ASIC is protected from adverse inferences.
ASIC cannot infer adverse inferences against the representative making representations to ASIC.
Protection from adverse inferences against ASIC
ASIC is protected from adverse inferences when making representations under subsection (1).
ASIC cannot infer adverse inferences against itself when making representations under subsection (1).
74(3) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Extension of deadline is prohibited after one extension. Withdrawal of infringement notice upon ASIC's satisfaction
(3) Only one extension may be given and the extension must not be for longer than 28 days.
Granting permission to withdraw infringement notice
74(4) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Notice of extension must be given to the person issued the infringement notice. Must provide content of withdrawal notices regardless of representations made.
74(5) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Withdrawal notice must state certain information. Failure to comply with subsection (4) does not affect the validity of the extension.
Obligation to comply with subsection (4)
(4) does not affect the validity of the extension.
A failure to comply with subsection (4) does not affect the validity of the extension.
Obligation and description logic both apply
Extension and valid extension overlap in time
(5) A failure to comply with subsection (4)
Failure to comply with subsection (4) does not prevent valid extension
74(6) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Reference to infringement notice compliance period is taken to be the extended period. Withdrawal notice must be given within infringement notice compliance period.
Extension of infringement notice compliance period
74(7) Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Refund of penalty paid after withdrawal of infringement notice
to the person an amount equal to the amount paid
76 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.80
32 After section 12GLB
32(1) After section 12GLB
ASIC may issue a written notice containing a warning about conduct that constitutes a contravention of a provision.
32(2) After section 12GLB
Refusal to respond to substantiation notice within specified period
Prohibits refusal to respond to substantiation notice
ASIC is satisfied it is in the public interest
32(3) After section 12GLB
Notice issued under subsection (1) or (2) is not a legislative instrument.
34 Subsection 12BA(1) (definition of non-party consumer)
trade-practices-amendment-australian-consumer-law-act.pdf, p.81
37 At the end of section 12GD
Reference to unfair term in consumer contract is a contravention of this Division.
Inclusion in reference to a contravention.
Unfair term is a subclass of consumer contract term.
42 At the end of section 12GM
44 At the end of section 12GN
Reference to contravention of provision includes applying or ComLaw Authoritative Act
78 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
Prohibits relying on or applying unfair terms in consumer contracts declared by the Court.
trade-practices-amendment-australian-consumer-law-act.pdf, p.82
Prohibits relying on or applying unfair terms.
Term declared by the Court to be an unfair term.
Relying on or applying such term is prohibited.
Describes the temporal interval during which the prohibition applies.
Relying on or applying such term is prohibited during the period of declaration.
Describes the temporal interval until which the prohibition applies.
Relying on or applying such term is prohibited until the declaration is revoked.
Relying on or applying such term is prohibited through all relevant channels.
Describes how AI systems apply the prohibition.
Relying on or applying such term is prohibited through AI system applications.
45 Paragraph 12GNB(1)(a)
Repeal a provision and substitute with a new prohibition
Prohibits conduct in contravention of a provision
46 Paragraphs 12GNB(1)(b) and (c)
47 Subsection 12GNB(2)
Prohibit making an order under subsection (1) against a specific party.
48 Paragraphs 12GNB(3)(a) and (b)
49 Subsection 12GNB(4)
50 Subsection 12GNB(5)
Application can be made within 6 years after the declaration is made or the cause of action accrues.
51 Subsection 12GNB(6)
trade-practices-amendment-australian-consumer-law-act.pdf, p.83
52 After subsection 12GNB(6)
53 Paragraph 12GNB(8)(a)
54 Paragraph 12GNB(9)(b)
55 Before section 12GO
55(1) Before section 12GO
Court may declare an unfair term in a consumer contract.
55(1A) Before section 12GO
Consumer contract must be a standard form contract for financial product or services.
...a standard form contract that is: ...
55(2) Before section 12GO
Court's power to make declarations not limited by subsection (1)
80 Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 No. 44,
trade-practices-amendment-australian-consumer-law-act.pdf, p.84
57 After subsection 102(2B)
ASIC must not delegate a function or power under section 12GLC, nor under Subdivision GB or GC of Division 2 of Part 2 to a person other than a member of ASIC or a member of staff who is an SES employee or an acting SES employee.
Implication of delegation on ASIC's functions and powers
1 Paragraphs 2(e) and (f) of Schedule 3
Substitute 'Schedule 1' for 'the Schedule'
trade-practices-amendment-australian-consumer-law-act.pdf, p.85
2 Paragraph 5D(5B)(c)
Replace 'the Schedule' with 'Schedule 1'
3 Subsection 6(3)
4 Section 150A (definition of Schedule version of Part IV)
5 Schedule (heading)