Chapter 1 -- Introduction
7 Meaning of manufacturer (1) A manufacturer includes the following: (a) a person who grows, extracts, produces, processes or assembles goods; (b) a person who holds himself or herself out to the public as the manufacturer of goods; (c) a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person; (d) a person (the first person ) who causes or permits another person, in connection with: (i) the supply or possible supply of goods by that other person; or (ii) the promotion by that other person by any means of the supply or use of goods; to hold out the first person to the public as the manufacturer of the goods; (e) a person who imports goods into Australia if: (i) the person is not the manufacturer of the goods; and (ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia. (2) For the purposes of subsection (1)(c): (a) a name, brand or mark is taken to be applied to goods if: (i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or (ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and (b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods. (3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia.
8 Goods affixed to land or premises For the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of the supply.
9 Meaning of safety defect in relation to goods (1) For the purposes of this Schedule, goods have a safety defect if their safety is not such as persons generally are entitled to expect. (2) In determining the extent of the safety of goods, regard is to be given to all relevant circumstances, including: (a) the manner in which, and the purposes for which, they have been marketed; and (b) their packaging; and (c) the use of any mark in relation to them; and (d) any instructions for, or warnings with respect to, doing, or refraining from doing, anything with or in relation to them; and (e) what might reasonably be expected to be done with or in relation to them; and (f) the time when they were supplied by their manufacturer. (3) An inference that goods have a safety defect is not to be made only because of the fact that, after they were supplied by their manufacturer, safer goods of the same kind were supplied. (4) An inference that goods have a safety defect is not to be made only because: (a) there was compliance with a Commonwealth mandatory standard for them; and (b) that standard was not the safest possible standard having regard to the latest state of scientific or technical knowledge when they were supplied by their manufacturer.
10 Asserting a right to payment (1) 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 goods or unsolicited services; or (iii) sets out the charge for placing, in a publication, an entry or advertisement; 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.
11 References to acquisition, supply and re-supply In this Schedule: (a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods pursuant to a supply of the goods; and (b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services; and (c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both; and (d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and (e) a reference to the re-supply of goods acquired from a person includes a reference to: (i) a supply of the goods to another person in an altered form or condition; and (ii) a supply to another person of goods in which the first-mentioned goods have been incorporated; and (f) a reference to the re-supply of services (the original services ) acquired from a person (the original supplier ) includes a reference to: (i) a supply of the original services to another person in an altered form or condition; and (ii) a supply to another person of other services that are substantially similar to the original services, and could not have been supplied if the original services had not been acquired by the person who acquired them from the original supplier.
12 Application of Schedule in relation to leases and licences of land and buildings In this Schedule: (a) a reference to a contract includes a reference to a lease of, or a licence in respect of, land or a building or part of a building (despite the express references in this Schedule to such leases or licences); and (b) a reference to making or entering into a contract, in relation to such a lease or licence, is a reference to granting or taking the lease or licence; and (c) a reference to a party to a contract, in relation to such a lease or licence, includes a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
13 Loss or damage to include injury In this Schedule: (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
14 Meaning of continuing credit contract (1) If: (a) a person (the creditor ), in the course of a business carried on by the creditor, agrees with a consumer to provide credit to the consumer in relation to: (i) payment for goods or services; or (ii) cash supplied by the creditor to the consumer from time to time; or (iii) payment by the creditor to another person in relation to goods or services, or cash, supplied by that other person to the consumer from time to time; and (b) the creditor: (i) has an agreement, arrangement or understanding (the credit agreement ) with the consumer in relation to the provision of the credit; or (ii) is engaged in a course of dealing (the credit dealing ) with the consumer in relation to the provision of the credit; and (c) the amounts owing to the creditor from time to time under the credit agreement or credit dealing are, or are to be, calculated on the basis that: (i) all amounts owing; and (ii) all payments made; by the consumer under, or in respect of, the credit agreement or credit dealing are entered in one or more accounts kept for the purpose of that agreement or dealing; the credit agreement or credit dealing is taken, for the purposes of this Schedule, to be a continuing credit contract . (2) If subsection (1)(a)(iii) applies, the creditor is taken, for the purposes of this section, to have provided credit to the consumer in relation to any goods or services, or cash, supplied by another person to the consumer to the extent of any payments made, or to be made, by the creditor to that other person.
15 Contraventions of this Schedule Conduct is not taken, for the purposes of this Schedule, to contravene a provision of this Schedule merely because of the application of: (a) section 23(1); or (b) a provision of Division 1 of Part 3-2 (other than section 66(2)); or (c) a provision of Part 3-5.
16 Severability (1) If the making of a contract after the commencement of this section contravenes this Schedule because the contract includes a particular provision, nothing in this Schedule affects the validity or enforceability of the contract otherwise than in relation to that provision, so far as that provision is severable. (2) This section has effect subject to any order made under Division 4 of Part 5-2.
17 References to provisions in this Schedule In this Schedule, a reference to a provision is a reference to a provision of this Schedule, unless the contrary intention appears.
Chapter 2 -- General protections
Part 2-1 -- Misleading or deceptive conduct 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 5-3.
19 Application of this Part to information providers (1) This Part does not apply to a publication of matter by an information provider if: (a) in any case--the information provider made the publication in the course of carrying on a business of providing information; or (b) if the information provider is the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation or the holder of a licence granted under the Broadcasting Services Act 1992 --the publication was by way of a radio or television broadcast by the information provider. (2) Subsection (1) does not apply to a publication of an advertisement. (3) Subsection (1) does not apply to a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services (the publicised goods or services ), if: (a) the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services. (4) Subsection (1) does not apply to a publication of matter in connection with the sale or grant, or possible sale or grant, of, or the promotion by any means of the sale or grant of, interests in land (the publicised interests in land ), if: (a) the publicised interests in land were interests of a kind sold or granted by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or (b) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who sells or grants interests of the same kind as the publicised interests in land; or (c) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that sells or grants interests of the same kind as the publicised interests in land. (5) An information provider is a person who carries on a business of providing information. (6) Without limiting subsection (5), each of the following is an information provider : (a) the holder of a licence granted under the Broadcasting Services Act 1992 ; (b) a person who is the provider of a broadcasting service under a class licence under that Act; (c) the holder of a licence continued in force by section 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 ; (d) the Australian Broadcasting Corporation; (e) the Special Broadcasting Service Corporation.