TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978
TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 1. Short title.
TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 An Act relating to Trade Practices. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows: Short title, &c. 1. (1) This Act may be cited as the Trade Practices Amendment Act 1978.*1* (2) The Trade Practices Act 1974*2* is in this Act referred to as the Principal Act. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 2. Commencement
2. This Act shall come into operation on the day on which it receives the Royal Assent.*1* TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 3. Interpretation
3. Section 4 of the Principal Act is amended- (a) by omitting from the definition of ''Deputy Registrar'' in sub-section (1)'', and includes a person appointed to act as a Deputy Registrar of the Tribunal''; and (b) by omitting from the definition of ''Registrar'' in sub-section (1) ''and includes a person appointed to act as the Registrar of the Tribunal''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 4. Exclusionary provisions
4. Section 4D of the Principal Act is amended by omitting sub-section (2) and substituting the following sub-section: ''(2) A person shall be deemed to be competitive with another person for the purposes of sub-section (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 5. Additional operation of Act
5. Section 6 of the Principal Act is amended- (a) by inserting ''53B,'' after ''46,'' in paragraph (b) of sub-section (2); and (b) by omitting from paragraph (c) of sub-section (2) ''were, by express provision, confined to a contract made-'' and substituting ''and any reference in Division 2A of that Part to the supply of goods, were, by express provision, confined to a contract made, or the supply of goods, as the case may be-''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 6. Termination of appointment of members of the Commission
6. Section 13 of the Principal Act is amended by inserting before ''engages'' in paragraph (c) of sub-section (2) ''without the consent of the Minister''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 7.
7. After section 44 of the Principal Act the following section is inserted in Part III: Acting appointments ''44A. (1) The Minister may appoint a person who is an officer or employee for the purposes of the Public Service Act 1922 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when- (a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his office; or (b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be. ''(2) A person acting as the Registrar or as a Deputy Registrar by reason of a vacancy in the office of Registrar or of that Deputy Registrar shall not continue so to act after the expiration of 12 months after the occurrence of the vacancy.
Back to Top
''(3) A person appointed to act as the Registrar or as a Deputy Registrar has, while acting as the Registrar or as that Deputy Registrar, as the case may be, all the duties and functions of the Registrar or of that Deputy Registrar, and references in this Act to the Registrar or to a Deputy Registrar shall- (a) if a person is acting as the Registrar-be read as a reference to the person so acting; or (b) if a person is acting as a Deputy Registrar-be read as including a reference to the person so acting. ''(4) The Minister may at any time terminate an appointment of a person to act as the Registrar or as a Deputy Registrar. ''(5) A person who holds an appointment to act as the Registrar or as a Deputy Registrar may resign his appointment by writing under his hand delivered to the Minister. ''(6) The validity of an act done by a person appointed to act as the Registrar or as a Deputy Registrar shall not be questioned in any proceeding on a ground arising from the fact that the occasion for the appointment, or for him to act under the appointment, had not arisen or that the appointment had ceased to have effect or the occasion for him to act under the appointment had passed.''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 8. Contracts, arrangements or understandings in relation to prices
8. (1) Section 45A of the Principal Act is amended by omitting paragraph (b) of sub-section (2) and substituting the following paragraph: ''(b) the joint supply by the parties to the joint venture of services in pursuance of the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture of services in pursuance of, and made available as a result of, the joint venture; or''. (2) The amendment made by sub-section (1) shall be deemed to have come into operation on 1 July 1977. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 9. Exclusive dealing
9. Section 47 of the Principal Act is amended by omitting from sub-sections (6) and (7) ''not being a body corporate related to the corporation''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 10. False representations and other misleading or offensive conduct in relation to land
10. Section 53A of the Principal Act is amended by inserting after sub-section (2) the following sub-section: ''(2A) Nothing in this section shall be taken as implying that other provisions of this Division do not apply in relation to the supply or acquisition, or the possible supply or acquisition, of interests in land.''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 11.
11. After section 53A of the Principal Act the following section is inserted: False representations in relation to employment ''53B. A corporation shall not publish or cause to be published an advertisement seeking a person or persons for employment, whether by the corporation or by another person, that contains a statement that is false or misleading in a material particular.''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 12. Product safety standards
12. Section 62 of the Principal Act is amended- (a) by adding at the end of sub-section (2) ''or to any other persons''; and (b) by inserting ''or to any other persons'' in sub-section (2D) after ''persons using the goods''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 13. Application of provisions to contracts not to be excluded or modified 13. Section 68 of the Principal Act is amended-
(a) by omitting ''or'' at the end of paragraph (b) of sub-section (1); (b) by adding at the end of paragraph (c) of sub-section (1) ''; or''; (c) by inserting after paragraph (c) of sub-section (1) the following paragraph: ''(d) the application of section 75A,'';
Back to Top
(d) by inserting ''or the application of section 75A'' in sub-section (2) after ''Division''; and (e) by adding at the end of sub-section (2) ''or section''. TRADE PRACTICES AMENDMENT ACT 1978 No. 206 of 1978 - SECT. 14.
14. After Division 2 of Part V of the Principal Act the following Division is inserted: ''Division 2A-Actions against Manufacturers and Importers of Goods Interpretation ''74A. (1) In this Division- 'express warranty', in relation to goods, means an undertaking, assertion or statement in relation to the quality, performance or characteristics of the goods given or made in connexion with the supply of the goods, or in connexion with the promotion by any means of the supply or use of goods, the natural tendency of which is to induce persons to acquire the goods; 'manufactured' includes grown, extracted, produced, processed and assembled. ''(2) In this Division- (a) a reference to goods shall, unless the contrary intention appears, be read as a reference to goods of a kind ordinarily acquired for personal, domestic or household use or consumption; (b) a reference to the quality of goods includes a reference to the state or condition of the goods; (c) a reference to antecedent negotiations in relation to the acquisition of goods by a consumer shall be read as a reference to any negotiations or arrangements conducted or made with the consumer by another person in the course of a business carried on by the other person whereby the consumer was induced to acquire the goods or which otherwise promoted the acquisition of the goods by the consumer; and (d) a reference to the person by whom any antecedent negotiations were conducted shall be read as a reference to the person by whom the negotiations or arrangements concerned were conducted or made. ''(3) If- (a) a corporation holds itself out to the public as the manufacturer of goods; (b) a corporation causes or permits the name of the corporation, a name by which the corporation carries on business or a brand or mark of the corporation to be applied to goods supplied by the corporation; or (c) a corporation causes or permits another person, in connexion with the supply or possible supply of goods by that other person, or in connexion with the promotion by that other person by any means of the supply or use of goods, to hold out the corporation to the public as the manufacturer of the goods, the corporation shall be deemed, for the purpose of this Division, to have manufactured the goods. ''(4) If- (a) goods are imported into Australia by a corporation that was not the manufacturer of the goods; and (b) at the time of the importation the manufacturer of the goods does not have a place of business in Australia, the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods. ''(5) For the purposes of paragraph (3) (b)- (a) a name, brand or mark shall be deemed to be applied to goods if it- (i) is woven in, impressed on, worked into or annexed or affixed to the goods; or (ii) is applied to a covering, label, reel or thing in or with which the goods are supplied; and (b) if the name of a corporation, a name in which a corporation carries on business or a brand or mark of a corporation is applied to goods, it shall be presumed, unless the contrary is established, that the corporation caused or
Back to Top
permitted the name, brand or mark to be applied to the goods. ''(6) The reference in sub-section (5) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that sub-section to a label includes a reference to a band or ticket. ''(7) If goods are imported into Australia on behalf of a corporation, the corporation shall be deemed, for the purposes of this Division, to have imported the goods into Australia. ''(8) For the purposes of this Division, goods shall be taken to be supplied to a consumer notwithstanding that, at the time of the supply, they are affixed to land or premises. Actions in respect of unsuitable goods ''74B. (1) Where- (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; (c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted; (d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and (e) the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose, the corporation is liable to compensate the consumer for the loss or damage and the consumer may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction. ''(2) Sub-section (1) does not apply- (a) if the goods are not reasonably fit for the purpose referred to in that sub-section by reason of- (i) an act or default of any person (not being the corporation or a servant or agent of the corporation);or (ii) a cause independent of human control, occurring after the goods have left the control of the corporations; or (b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgment of the corporation. Actions in respect of false descriptions ''74C. (1) Where- (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer by description; (c) the goods do not correspond with the description; and (d) the consumer suffers loss or damage by reason that the goods do not correspond with the description, the corporation is liable to compensate the consumer for the loss or damage and the consumer may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction. ''(2) Sub-section (1) does not apply if the goods do not correspond with the description referred to in that sub-section by reason of- (a) an act or default of any person (not being the corporation or a servant or agent of the corporation); or (b) a cause independent of human control, occurring after the goods have left the control of the corporation.
Back to Top
''(3) A corporation is not liable to compensate a consumer for loss or damage suffered by the consumer by reason that goods do not correspond with a description unless the description was applied to the goods- (a) by or on behalf of the corporation; or (b) with the consent of the corporation, whether express or implied. ''(4) If the goods referred to in sub-section (1) are supplied to the consumer by reference to a sample as well as by description, it is not a defence to an action under this section that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. ''(5) A supply of goods is not prevented from being a supply by description for the purposes of sub-section (1) by reason only that, being exposed for sale or hire, they are selected by the consumer. Action in respect of goods of unmerchantable quality ''74D. (1) Where- (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; (c) the goods are not of merchantable quality; and (d) the consumer or any person who derives title to the goods through or under the consumer suffers loss or damage by reason that the goods are not of merchantable quality, the corporation is liable to compensate the consumer or person who so derives title to the goods for the loss or damage and the consumer or person who so derives title to the goods may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction. ''(2) Sub-section (1) does not apply- (a) if the goods are not of merchantable quality by reason of- (i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or (ii) a cause independent of human control, occurring after the goods have left the control of the corporation; (b) as regards defects specifically drawn to the consumer's attention before the making of the contract for the supply of the goods to the consumer; or (c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal. ''(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to- (a) any description applied to the goods by the corporation; (b) the price received by the corporation for the goods (if relevant); and (c) all the other relevant circumstances. Actions in respect of non-correspondence with samples, &c. ''74E. (1) Where- (a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply; (b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer; (c) the goods are supplied to the consumer by reference to a sample; (d) the bulk of the goods does not correspond with the sample in quality or the goods have a defect, rendering them unmerchantable, that is not, or would not be, apparent on reasonable examination of the sample; and
Back to Top
(e) the consumer suffers loss or damage by reason that the bulk does not correspond with the sample in quality or by reason that the goods have that defect, the corporation is liable to compensate the consumer for the loss or damage and the consumer may recover the amount of the loss or damage by action against the corporation in a court of competent jurisdiction. ''(2) Sub-section (1) does not apply where- (a) the sample is not supplied by the corporation; (b) the supply by sample is made without the express or implied concurrence of the corporation; or (c) the failure of the bulk of the goods to correspond with the sample in quality or the existence of the defect is due to- (i) an act or default of any person (not being the corporation or a servant or agent of the corporation), or a cause independent of human control, occurring after the goods have left the control of the corporation; or