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Unfair Practices

Unfair Practices. Part V, Division 1. The Structure of this Lecture:. An overview of Part V Division 1 and Part VC Provisions prohibiting false and/or misleading behavior (ss53, 53A, 53B,53C, 55,55A and 59). Provisions which prohibit certain specified forms of conduct (ss54,56 – 65).

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Unfair Practices

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  1. Unfair Practices Part V, Division 1

  2. The Structure of this Lecture: • An overview of Part V Division 1 and Part VC • Provisions prohibiting false and/or misleading behavior (ss53, 53A, 53B,53C, 55,55A and 59). • Provisions which prohibit certain specified forms of conduct (ss54,56 – 65). • Remedies and defences

  3. Distinguishing s52 and ss53/75AZC • Section 52 refers to conduct whereas s53/75AZC is limited to representations. • A contravention of s52 and/or s53 gives rise to civil liability only. • In the case of s52, the standard of proof is on the balance of probabilities. In the case of s53 and 75AZC, the criminal standard of proof, beyond reasonable doubt, must be established. • Conduct which offends s53 can also be the subject of criminal proceedings under s75AZC. • Some defences are available for contraventions of s53 pursuant to s85(3) and s65A and for contraventions of s75AZC pursuant to ss85(1) and (3). There are no defences available for a breach of s52.

  4. Section 53 - overview • A corporation • in trade or commerce • in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services • conduct itself pursuant to the elements of ss53(a)-(g)

  5. False and Misleading Representations Ss 53(a) / 75AZC(1)(a) • Corporation • Falsely represent • Goods • Particular standard, quality, value, grade, composition, style or model or have had a particular history or previous use. • Part VC 75AZC(1)(a) • FTA Qld s40, NSW s44, Vic s12,Tas s16 ACT14SA s58 NT s44 WA s12,13

  6. S53(aa) • Corporation • Falsely represent • Services • Particular standard, quality, value or grade. • Part VC 75AZC(b) • FTA Qld s40, NSW s44, Vic s12,sTas s16 ACT14 SA s58 NT s44 WA s12,13

  7. S53(b) • Corporation • Falsely represent • Goods • New • Part VC 75AZC(1)(c)

  8. S53(bb) • Corporation • Falsely represent • A particular person has agreed to acquire • Goods or services • 75AZC(1)(d)

  9. Corporation Represent Goods or services Have a sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have. 75AZC(1)( Corporation Represent The corporation Has a sponsorship, approval or affiliation it does not have. 75AZC(1)(f) S53(c) and (d)

  10. Corporation False or misleading representation Goods or services Price 75AZC(1)(g) Corporation False or misleading representation Goods or spare parts Availability of facilities for the repair of goods or of spare parts for goods. 75AZC(1)(h) S53(e) and (ea)

  11. Place of origin (note does not just apply to country of origin) • Recall section 53(a) • NB section 53(eb) • Corporation • False or misleading representation • Goods • Place of origin • 75AZC(1)(a), (i) • Part V Division 1AA provides a scheme for determining whether goods are made in or produced in the represented country of origin.

  12. Corporation False or misleading representation Goods or services Need S75AZC(1)(j) Corporation False or misleading representation Existence, exclusion or effect Condition, warranty, guarantee, right or remedy 75AZC(1)(k) Sections 53(f) and (g)

  13. (1)(a) Corporation Represent Land Sale or grant or possible sale or grant of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land. 75AZD(1)(a) Qld s40A, NSW s45, Vic nil,Tas s17 ACT15SA s59 NT s45 WA s12,13(1) (1)(b) Corporation Make a false or misleading representation Land The nature of the interest in land, the price payable for the land, the location of the land, the characteristics of the land, the use to which the land is being put or may lawfully be put or the existence or availability of facilities associated with the land 75AZD(1)(b) Section 53A

  14. 53A(2) Corporation Offers gifts prizes or other items in connection with a grant or interest in land. 75AZD(2) Qld 40A, NSW s45, Vic nil,Tas s17 ACT15SA s59 NT s45 WA s12,13 53A(3) Corporation Physical force or undue harassment in connection with a grant or interest in land. 75AZD(3) Qld 40A, NSW s45, Vic nil,Tas s17 ACT15SA s59 NT s45 WA s12,13 Sections 53A(2),(3)

  15. Section 53B Corporation Liable to mislead Employment offered by the corporation or another personAvailability, nature, terms or conditions of, or any other matter relating to, the employment. 75AZE Qld s41, NSW s46, Vic s13l,Tas s18 ACT16SA s60 NT s46 WA s14 Section 53C Corporation Representation With respect to an amount which, if paid, would constitute part of the consideration Goods or services The cash price for the goods or services must be specified. 75AZF Qld s42, NSW s47, Vic s15,Tas s21A ACT17SA s61 NT s50 WA s15 Sections 53B and 53C

  16. Section 55 Person * Provision based on external affairs power. Engage in conduct likely to mislead the public Goods, Nature, manufacturing process, characteristics, the suitability for purpose or quantity. 75AZH Qld s44, NSW s49, Vic nilTas s20 ACT19SA s63 NT s47 WA s17 Section 55A Corporation Engage in conduct likely to mislead the public Services Nature, characteristics, the suitability for purpose or quantity. 75AZI Qld s45, NSW s50, Vic s11,Tas s16 ACT20SA s64 NT s48 WA s18 Section 55 and 55A

  17. Section 59(1) Corporation Make a representation that is false or misleading in a material particular Any business activity … carried on at or from a person’s place of residence. Profitability or risk of or any other material aspect of the business activity 75AZM Qld s49, NSW s54, Vic s20,Tas s25 ACT25SA s68 NT s49 WA Section 59(2) Corporation Make a representation that is false or misleading in a material particular. Invitation to particpate…in a business activity. Profitability or risk or any other material aspect of the business activity 75AZM Section 59

  18. Gifts and Prizes • Section 54 • Corporation • Offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered. • 75AZG • Qld s43, NSW s48, Vic s16,Tas s19 ACT18 SA s62 NT s51 WA s16

  19. Bait Advertising • Section 56 • Corporation • Bait advertising • 75AZJ • Qld s46, NSW s51, Vic s17,Tas s22 ACT21SA s65 NT s52 WA s19

  20. Section 57 Corporation Referral Selling 75AZKQld s47, NSW s52, Vic s18,Tas s26A ACT23SA s66 NT s53 WAs20 Section 58 Corporation Accepting payment without intending or being able to supply as ordered 75AZL Qld s48, NSW s53, Vic s19,Tas s24 ACT24SA s67 NT s54 WA s21 Sections 57 and 58

  21. Harassment and coercion • Section 60 • Corporation • Harassment and coercion • 75AZN • Qld s50, NSW s55, Vic s21,Tas s26 ACT26SA s69 NT s55 WA s23

  22. Pyramid Selling • Division 1AAA (Formerly s61) • Section 65AAC • Corporation • Pyramid selling • 75AZO • Qld nil, NSW s56, Vic s22, Tas s26B ACT27SA s70 NT s56 WA s24

  23. Section 63A Corporation Unsolicited credit and debit cards 75AZP Qld nil, NSW s57, Vic s23,Tas s27 ACT28SA s71 NT s44 WA s28 Section 64 Corporation Unsolicited goods and services 75AZQ Qld s52, NSW s58, Vic s24,Tas nil ACT29SA s72 NT s58 WA s29,30 Unsolicited Material

  24. Person to whom unsolicited goods are supplied • Section 65 • Person to whom unsolicited goods are supplied • Recipient responsibilities re unsolicited goods • Qld s53, NSW s59, Vic s25,26,Tas nil ACT30SA s73 NT s59 WA s31

  25. Country of origin • S65AA • This Division provides that certain country of origin representations made about goods do not contravene s52, • para 53(a), para 53(eb), para s75AZC(1)(a) or (i) • General Test s65AB • a Has the corporation made a representation as to the country of origin of goods? If yes – • b Have the goods been substantially transformed in that country? NB s65AE Subdivision B – Costs of production If • yes – • c Is 50% or more of the cost of production or manufacture of the goods attributable to production or manufacturing • processes that occurred in that country? • NB s65AF and Subdivision B Costs of production ss65AG-65AM: • c IF yes – • d Is the representation is a representation to which ss 65AC or AD apply? • If not – • THEN • The corporation does not contravene s52, 53(a), (eb) or 75AZC(1)(a)or (i) by reason only of the making of the • representation. • If the representation is one to which ss65AC or 65AD apply, reference should be made to those provisions.

  26. Section 85(1) Reasonable mistake of fact Accident Section 85(3) Section 65A Prescribed information providers General defences for criminal contraventions of Part VC Defences

  27. Future Developments • How de we harmonise with all States? • Will emphasis be on civil or criminal remedies?

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