WORLD TRADE ORGANIZATION 
ORGANISATION MONDIALE DU COl\fMERCE 
ORGANIZACION MUNDIAL DEL COMERCIO 
Council for Trade-Related Aspects 
of Intellectual Property Rights IPlN/I/AUS/O/l 
11 November 1996 
(964766) 
Original: English! 
anglaisl 
ingles 
MAIN DEDICATED INTELLECTUAL PROPERTY LAWS AND REGULATIONS 
NOTIFIED UNDER ARTICLE 63.2 OF THE AGREEMENT 
Australia 
The present document reproduces the text of the Trade Practices Act 19741, as notified by 
Australia under Article 63.2 of the Agreement (see document IP/NllIAUSllIRev.I). 
Conseil des aspects des droits de propriete 
intellectuelle qui touchent au commerce 
PRINCIPALES LOIS ET REGLEMENTATIONS CONSACREES 
A LA PROPRIETE INTELLECTUELLE NOTIFIEES 
AU TITRE DE L'ARTICLE 63:2 DE L'ACCORD 
Australie 
Le present document contient le texte1 de la Loi de 1974 sur les pratiques commerciales, notifiee 
par I' Australie au titre de I'article 63:2 de I' Accord (voir le document IP/NllIAUSllIRev.I). 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio 
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA 
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD 
DEL PA.RRAFO 2 DEL ARTICULO 63 DEL ACUERDO 
Australia 
En el presente documento se reproduce el texto de la Ley de Practicas Comerciales de 19741, 
notificada por Australia en virtud de 10 dispuesto en el parrafo 2 del articulo 63 del Acuerdo (vease 
el documento IP/NllI AUSllIRev .1). 
lEnglish only/anglais seulementlen ingles solamente. IP/N/l/AUS/O/1 
Page 2 
TRADE 
PRACTICES ACT 
1974 
Reprinted as at 31 Decetnber 1994 
Reprint No. 6 
AN AGPS PRESS PUBLICATION 
AUSTRALIAN GOVERNMENT PUBLISHING SERVICE 
CANBERRA © Commonwealth of Australia 1995 
ISBN 0 644 42880 5 IP/N/lIAUS/O/1 
Page 3 
The Copyright Act 1968 permits certain reproduction and publication of this legislation. 
In particular section 182A of the Act enables a complete copy to be made by or on behalf of a 
person for a particular purpose. For reproduction or publication beyond that permitted by the Act, 
prior written permission must be sought from the Australian Government Publishing Service, 
GPO Box 84, Canberra ACT 2601. 
This consolidation has been prepared by the Attorney-General's Department. 
Produced by the Australian Government Publishing Service IP/N/l! AUS/O/I 
Page 4 
Jitt 
USTRALIA 
~ JI-/ ,-..; 
TRADE PRACTICES ACT 1974 
Section 
1 . Short title Reprinted as at 31 December 1994 
TABLE OF PROVISIONS 
PART I-PRELIMINARY REPRINT No. 6 
2A. Application of Act to Commonwealth and Commonwealth authorities 
3. Repeal 
4. Interpretation 
4A. Subsidiary, holding and related bodies corporate 
48. Consumers 
4C. Acquisition, supply and re-supply 
40. Exclusionary provisions 
4E. Market 
4F. References to purpose or reason 
4G. Lessening of competition to include preventing or hindering competition 
4H. Application of Act in relation to leases and licences of land and buildings 
4J. Joint ventures 
4K. Loss or damage to include injury 
4L. Severability 
4M. Saving of law relating to restraint of trade and breaches of confidence 
5. Extended application of Parts IV, IV A and V 
6. Additional operation of Act 
PART 11-THE TRADE PRACTICES COMMISSION 
6A. Establishment of Commission 
7. Constitution of Commission 
B. Terms and conditions of appointment 
BA. Associate members 
9. Remuneration 
10. Deputy Chairman 
11. Acting Chairman 
12. Leave of absence 
13. Termination of appointment of members of the Commission 
14. Termination of appointment of associate members of the Commission 
15. Resignation 
16. Arrangement of business ii Trade Practices Act 1974 
TABLE OF PROVISIONS-continued IP/N/V AUS/Oll 
Page 5 
Section 
17. 
18. 
19. 
25. 
27. 
28. Disclosure of interests by members 
Meetings of Commission 
Chairman may direct Commission to sit in Divisions 
Delegation by Commission 
Staff of Commission 
Functions of Commission in relation to dissemination of information, law 
reform and research 
29. Commission to comply with directions of Minister and requirements of the 
Parliament 
PART Ill-THE TRADE PRACTICES TRIBUNAL 
30. Constitution of Tribunal 
31. Qualifications of members of Tribunal 
31 A. Appointment of Judge as presidential member of Trade Practices 
Tribunal not to affect tenure etc. 
32. Terms and conditions of appointment 
33. Remuneration and allowances of members of Trade Practices Tribunal 
34. Acting appointments 
35. Suspension and removal of members of Tribunal 
36. Resignation 
37. Constitution of Tribunal for particular matters 
38. Validity of determinations 
39. Arrangement of business 
40. Disclosure of interests by members of Tribunal 
41. Presidential member to preside 
42. Decision of questions 
43. Member of Tribunal ceasing to be available 
44. Staff of Tribunal 
44A. Acting appointments 
PART IV -RESTRICTIVE TRADE PRACTICES 
45. Contracts, arrangements or understandings that restrict dealings or affect 
competition 
45A. Contracts, arrangements or understandings in relation to prices 
458. Covenants affecting competition 
45C. Covenants in relation to prices 
450. Boycotts 
46. Misuse of market power 
46A. Misuse of market power-corporation with substantial degree of power in 
trans-Tasman market 
468. No immunity from jurisdiction in relation to certain New Zealand laws 
47. Exclusive dealing 
48. Resale price maintenance 
49. Price discrimination 
50. Prohibition of acquisitions that would result in a substantial lessening of 
competition 
50A. Acquisitions that occur outside Australia 
51. Exceptions 
51AA. 
51AB. PART IVA-UNCONSCIONABLE CONDUCT 
Unconscionable conduct within the meaning of the unwritten law of the 
States and Territories 
Unconscionable conduct IP/N/1/ AUS/O/l 
Page 6 
Trade Practices Act 1974 
TABLE OF PROVISIONS -continued 
Section 
PART V -CONSUMER PROTECTION 
Division 1-Unfair Practices 
51 A. Interpretation 
52. Misleading or deceptive conduct 
53. False or misleading representations iii 
53A. False representations and other misleading or offensive conduct in 
relation to land 
538. Misleading conduct in relation to employment 
53C. Cash price to be stated in certain circumstances 
54. Offering gifts and prizes 
55. Misleading conduct to which Industrial Property Convention applies 
55A. Certain misleading conduct in relation to services 
56. Bait advertising 
57. Referral selling 
58. Accepting payment without intending or being able to supply as ordered 
59. Misleading representations about certain business activities 
60. Harassment and coercion 
61. Pyramid selling 
63A. Unsolicited credit and debit cards 
64. Assertion of right to payment for unsolicited goods or services or for 
making entry in directory 
65. Liability of recipient of unsolicited goods 
65A. Application of provisions of Division to prescribed information providers 
Division 1A-Product Safety and Product Information 
65B. Warning notice to public 
65C. Product safety standards and unsafe goods 
65D. Product information standards 
65E. Power of Minister to declare product safety or information standards 
65F. Compulsory product recall 
65G. Compliance with product recall order 
65H. Loss or damage caused by contravention of product recall order 
65J. Opportunity for conference to be afforded before certain powers 
exercised 
65K. Recommendation after conclusion of conference 
65L. Exception in case of danger to public 
65M. Conference after goods banned 
65N. Recommendation after conclusion of conference 
65P. Minister to have regard to recommendation of Commission 
650. Power to obtain information, documents and evidence 
65R. Notification of voluntary recall 
65S. Copies of certain notices to be given to suppliers or published in certain 
newspapers 
65T. Certain action not to affect insurance contracts 
Division 2-Conditions and Warranties in Consumer Transactions 
66. Interpretation 
66A. Convention on Contracts for the International Sale of Goods 
67. Conflict of laws 
68. Application of provisions not to be excluded or modified 
68A. Limitation of liability for breach of certain conditions or warranties 
69. Implied undertakings as to title, encumbrances and quiet possession 
70. Supply by description 
71. Implied undertakings as to quality or fitness iv 
Section 
72. 
73. 
73A. 
738. 
74. 
74A. 
748. 
74C. 
740. 
74E. 
74F. 
74G. 
74H. 
74J. 
74K. 
74L. 
75. 
75A. 
75AA. 
75AB. 
75AC. 
75AD. 
75AE. 
75AF. 
75AG. 
75AH. 
75AI. 
75AJ. 
75AK. 
75AL. 
75AM. 
75AN. 
75AO. 
75AP. 
75AQ. 
75AR. 
75AS. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued 
Supply by sample IPINIl! AUSIO/l 
Page 7 
Liability for loss or damage from breach of certain contracts 
Continuing credit contract 
Loan contract 
Warranties in relation to the supply of services 
Division 2A-Actions against Manufacturers and Importers of Goods 
Interpretation 
Actions in respect of unsuitable goods 
Actions in respect of false descriptions 
Actions in respect of goods of unmerchantable quality 
Actions in respect of non-correspondence with samples etc. 
Actions in respect of failure to provide facilities for repairs or parts 
Actions in respect of non-compliance with express warranty 
Right of seller to recover against manufacturer or importer 
Time for commencing actions 
Application of Division not to be excluded or modified 
Limitation in certain circumstances of liability of manufacturer to seller 
Division 3-Miscellaneous 
Saving of other laws and remedies 
Rescission of contracts 
PART VA-LlA8IL1TY OF MANUFACTURERS AND IMPORTERS FOR 
DEFECTIVE GOODS 
Interpretation 
Certain interpretation provisions (importers and others taken to be 
manufacturers etc.) apply to this Part 
Meaning of goods having defect 
Liability for defective goods causing injuries -loss by injured individual 
Liability for defective goods causing injuries-loss by person other than 
injured individual 
Liability for defective goods-loss relating to other goods 
Liability for defective goods-loss relating to buildings etc. 
Survival of liability actions 
No liability action where workers' compensation or law giving effect to an 
international agreement applies 
Unidentified manufacturer 
Defences 
Commonwealth liability for goods that are defective only because of 
compliance with Commonwealth mandatory standard 
Liability joint and several 
Contributory acts or omissions to reduce compensation 
Time for commencing actions 
Application of provisions not to be excluded or modified 
Representative actions by the Trade Practices Commission 
Saving of other laws and remedies 
Jurisdiction of courts 
PART VI-ENFORCEMENr AND REMEDIES 
758. Interpretation 
76. Pecuniary penalties 
77. Civil action for recovery of pecuniary penalties 
78. Criminal proceedings not to be brought for contraventions of Part IV 
79. Offences against Part V 
79A. Enforcement and recovery of certain fines IPINIl! AUSIO/l 
Page 8 
Section 
BO. 
BOA. 
81. 
82. 
83. 
84. 
85. 
86. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued 
Injunctions 
Order to disclose information or publish advertisement 
Divestiture 
Actions for damages 
Finding in proceedings to be evidence 
Conduct by directors, servants or agents 
Defences 
Jurisdiction of courts 
Transfer of matters 
Transfer of certain proceedings to Family Court 
Other orders v 
86A. 
86B. 
87. 
87A. Power of Court to prohibit payment or transfer of moneys or other 
property 
87B. 
87C. Enforcement of undertakings 
Enforcement of undertakings-Secretary to the Department 
PART VII-AUTHORIZATIONS AND NOTIFICATIONS IN RESPECT OF 
RESTRICTIVE TRADE PRACTICES 
Division 1-Authorizations 
88. Power of Commission to grant authorisations 
89. Procedure for applications 
90. Determination of applications for authorisations 
90A. Commission to afford opportunity for conference before determining 
application for authorisation 
91. Grant. revocation and variation of authorisations 
Division 2 -Notifications 
93. Notification of exclusive dealing 
93A. Commission to afford opportunity for conference before giving notice in 
relation to exclusive dealing 
95. Register of notifications 
PART VIII-RESALE PRICE MAINTENANCE 
96. Acts constituting engaging in resale price maintenance 
97. Recommended prices 
98. Withholding the supply of goods 
99. Statements as to the minimum price of goods 
100. Evidentiary provisions 
PART IX-REVIEW BY TRIBUNAL OF DETERMINATIONS OF 
COMMISSION 
Division 1-Appfications for Review 
101. Applications for review 
101 A. Applications for review of notices under subsection 93 (3) 
102. Functions and powers of Tribunal 
Division 2-Procedure and Evidence 
103. Procedure generally 
104. Regulations as to certain matters 
105. Power to take evidence on oath vi 
Section 
106. 
107. 
10B. 
109. 
110. 
10.01. 
10.02. 
10.03. 
10.04. 
10.05. 
10.06. 
10.07. 
10.08. 
10.09. 
10.10. 
10.11. 
10.12. 
10.13. 
10.14. 
10.15. 
10.16. 
10.17. 
10.17A. 
10.1B. 
10.1BA. 
10.19. 
10.20. 
10.21. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued IP/N/II AUS/O/I 
Page 9 
Hearings to be in public except in special circumstances 
Evidence in form of written statement 
Taking of evidence by single member 
Participants in proceedings before Tribunal 
Representation 
PART X-INTERNATIONAL LINER CARGO SHIPPING 
Objects of Part 
Interpretation Division 1-Preliminary 
Designated shipper bodies 
Division 2-Additional restrictive trade practice provisions applying to 
ocean carriers 
Application of section 46 in relation to conference agreements 
Discrimination between shippers prohibited 
Division 3-Minimum standards for conference agreements 
Application of Australian law to conference agreements and withdrawal 
from agreements 
Minimum levels of shipping services to be specified in conference 
agreements 
Conference agreements may include only certain restrictive trade 
practice provisions 
Where may consequences of conference agreements not complying with 
minimum standards be found? 
Division 4-Registers and files and public inspection of them 
Registers and conference agreement files open to public inspection 
What registers are to be kept by the Registrar? 
What conference agreement files are to be kept by the Registrar? 
What register is to be kept by the Commission? 
Division 5-Exemptions from certain restrictive trade practice 
prohibitions 
Subdivision A -Exemptions relating to conference agreements 
Exemptions apply only to "blue-water" parts of service and activities 
outside Australia etc. 
When do exemptions commence to apply in relation to registered 
conference agreements? 
Exemptions do not apply to variations of conference agreement unless 
varying agreement registered 
Exemptions from section 45 
Exemptions from section 45 for conference agreements to the extent that 
they specify freight rates 
Exemption from section 47 
Exemptions from section 47 for conference agreements to the extent that 
they specify freight rates 
Subdivision B -Exemptions relating to loyalty agreements 
Exemptions from section 45 
Exemption from sections 47 and 10.05 
Exemptions cease to apply in relation to a shipper at the shipper's option IP/NIl/ AUS/O/l 
Page 10 
Section 
10.22. 
10.23. 
10.24. 
10.25. 
10.26. 
10.27. 
10.28. 
10.29. 
10.30. 
10.31. 
10.32. 
10.33. 
10.34. 
10.35. 
10.36. 
10.37. 
10.38. 
10.39. 
10.40. 
10.41. 
10.42. 
10.43. Trade Practices Act 1974 vii 
TABLE OF PROVISIONS-continued 
Subdivision C-Exemption relating to inwards liner cargo shipping 
services 
Exemption applies only to "blue-water" parts of service and activities 
outside Australia etc. 
Exemption from sections 45 and 47 
Subdivision 0-Other exemptions 
Exemptions from sections 45 and 47 in relation to certain negotiations 
Division 6-Registration of conference agreements 
Subdivision A -Provisional registration 
Application for provisional registration of conference agreement 
How application is to be made and verified 
Copy of agreement to be filed with application etc. 
Decision on application for provisional registration 
Parties to conference agreement to negotiate minimum level of shipping 
services after provisional registration of agreement 
Subdivision B-Final registration 
Application for final registration of conference agreement 
How application is to be made and verifiea 
Copy of agreement to be filed with application etc. 
Decision on application for final registration 
Subdivision C-Confidentiality requests 
Request for confidentiality 
Abstract to accompany request for confidentiality 
Examination of abstract 
Decision on request for confidentiality 
Application for registration to be returned where request for confidentiality 
refused etc. 
Subdivision 0 -Miscellaneous 
Application also to be made for registration of varying conference 
agreements 
Notification of happening of affecting events prior to final registration etc. 
Division 7-Obligations of ocean carriers in relation to registered 
conference agreements 
Parties to registered conference agreement to negotiate with certain 
deSignated shipper bodies etc. 
Application to be made for registration of varying conference agreements 
Parties to registered conference agreement to notify happening of 
affecting events etc. viii 
Section 
10.44. 
10.45. 
10.46. 
10.47. 
10.48. 
10.49. 
10.50. 
10.51. 
10.52. 
10.53. 
10.54. 
10.55. 
10.56. 
10.57. 
10.58. 
10.59. 
10.60. 
10.61. 
10.62. 
10.63. 
10.64. 
10.65. 
10.66. 
10.67. 
10.68. 
10.69. 
10.70. 
10.71. 
10.72. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued IP/N/l! AUS/Oll 
Page 11 
Division 8-Powers of Minister in relation to registered conference 
agreements 
Powers exercisable by Minister in relation to registered conference 
agreements etc. 
Circumstances in which Minister may exercise powers in relation to 
registered conference agreements 
Action to be taken where powers exercised by Minister without first 
obtaining Commission report 
Investigation and report by Commission on reference by Minister 
Investigation and report by Commission on application by affected person 
Undertakings by parties to registered conference agreement 
Division 9-Obligations of non-conference ocean carriers with substantial 
market power 
Inquiries by Tribunal into market power of ocean carriers 
Determination by Minister of market power of ocean carriers 
Non-conference ocean carrier with substantial market power to negotiate 
with certain designated shipper bodies etc. 
Non-conference ocean carrier with substantial market power not to hinder 
Australian flag shipping operators etc. 
Division 10-Powers of Minister in relation to non-conference ocean 
carriers with substantial market power 
Powers exercisable by Minister in relation to obligations of 
non-conference ocean carriers with substantial market power 
Circumstances in which Minister may exercise powers 
Action to be taken where powers exercised by Minister without first 
obtaining Commission report 
Investigation and report by Commission on reference by Minister 
Investigation and report by Commission on application by affected person 
Undertakings by ocean carrier 
Enforcement of orders and undertakings 
Division 11-Unfair pricing practices 
Powers exercisable by Minister in relation to pricing practices etc. 
Circumstances in which Minister may exercise powers 
Inquiry and report by Tribunal 
Undertakings not to engage in pricing practices 
Enforcement of orders and undertakings 
Determination of normal freight rates for shipping services 
Determination of··whether practice contrary to national interest 
Division 12-Registration of ocean carrier agents 
Ocean carrier who provides international liner cargo shipping services to 
have registered agent 
Representation of ocean carrier by registered agent 
Application by ocean carrier for registration of agent 
Registration of agent 
Change of agent etc. IPINIl! ADSIOl1 
Page 12 
Section 
10.73. 
10.74. 
10.75. 
10.76. 
10.n. 
10.78. 
10.79. 
10.80. 
10.81. 
10.82. 
10.83. 
10.84. 
10.85. 
10.86. 
10.87. 
10.88. 
10.89. 
10.90. 10.91. 
10.92. 
10.93. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued 
Division 13-General provisions relating to registers and conference 
agreement files 
Form of registers and conference agreement files 
Deletion of entries wrongly existing in certain registers 
Deletion of obsolete entries in certain registers 
Correction of clerical errors and other mistakes in certain registers etc. 
Division 14 -Administration 
Registrar of Liner Shipping 
Appointment of Registrar etc. 
Acting Registrar 
Registrar and staff to be public servants 
Delegation by Minister 
Delegation by Registrar 
Division 15-Miscellaneous 
Act not to affect rights under Freedom of Information Act 
Review of decisions of Registrar 
Statement to accompany notices of Registrar 
Evidence 
Notification by Commission of references etc. 
Exclusion of documents etc. from register of Commission investigations 
Disclosure of confidential information 
Fees 
Application of section 155 to investigations under Part 
Constitution of Tribunal for inquiries under Part etc. 
Participation in inquiries by Tribunal under Part etc. 
PART XI-TRANSITIONAL 
147. Continuation of certain appointments and proceedings 
148. Commission may retain certain documents 
149. Secrecy in relation to documents furnished under previous law 
PART XII-MISCELLANEOUS 
Power to obtain information, documents and evidence ix 
155. 
155A. Power to obtain information and documents in New Zealand relating to 
trans-Tasman markets 
1558. 
156. 
157. 
158. 
159. 
160. 
161. 
162. 
162A. 
163. 
163A. 
165. 
166. Trade Practices Commission may receive information and documents on 
behalf of New Zealand Commerce Commission 
Inspection of documents by Commission 
Disclosure of documents by Commission 
Protection of members of Tribunal, barristers and witnesses 
Incriminating answers 
Failure of witness to attend 
Refusal to be sworn or to answer questions 
Contempt 
Intimidation etc. 
Prosecutions 
Jurisdiction of Court to make declarations and orders 
Inspection of, furnishing of copies of, and evidence of, documents 
Certificates as to furnishing of particulars to Commission x 
Section 
167. 
170. 
171. 
171A. 
172. Trade Practices Act 1974 
TABLE OF PROVISIONS -continued 
Judicial notice 
Legal and financial assistance 
Annual report by Commission 
Charges by the Commission 
Regulations IPIN/V AUS/O/l 
Page 13 IP/N/lIAUSIO/1 
Page 14 
TRADE PRACTICES ACT 1974 
An Act relating to certain Trade Practices 
PART I-PRELIMINARY 
Short title 
1. This Act may be cited as the Trade Practices Act 1974.1 
Application of Act to Commonwealth and Commonwealth authorities 
2A. (1) Subject to this section, this Act binds the Crown in right 
of the Commonwealth in so far as the Crown in right of the Common­
wealth carries on a business, either directly or by an authority of the 
Commonwealth. 
(2) Subject to the succeeding provisions of this section, this Act 
applies as if: 
(a) the Commonwealth, in so far as it carries on a business 
otherwise than by an authority of the Commonwealth; and 
(b) each authority of the Commonwealth (whether or not acting as 
an agent of the Crown in right of the Commonwealth) in so far 
as it carries on a business; 
were a corporation. 
(3) Nothing in this Act renders the Crown in right of the Com­
monwealth liable to be prosecuted for an offence. 
(4) Part IV does not apply in relation to the business carried on by 
the Commonwealth in developing, and disposing of interests in, land in 
the Australian Capital Territory. s.3. IP/N/lIAUSIOIl 
Page 15 
Trade Practices Act 1974 
Repeal 
3. The Restrictive Trade Practices Act 1971 and the Restrictive 
Trade Practices Act 1972 are repealed. 
Interpretation 
4. (1) In this Act, unless the contrary intention appears: 
"acquire" includes: 
(a) in relation to goods-acquire by way of purchase, exchange or 
taking on lease, on hire or on hire-purchase; and 
(b) in relation to services-accept; 
"arrive at", in relation to an understanding, includes reach or enter 
into; 
"authority", in relation to a State or Territory (including an external 
Territory), means: 
(a) a body corporate established for a purpose of the State or the 
Territory by or under a law of the State or Territory; or 
(b) an incorporated company in which the State or the Territory, 
or a body corporate referred to in paragraph (a), has a 
controlling interest; 
"authority of the Commonwealth" means: 
(a) a body corporate established for a purpose of the Common­
wealth by or under a law of the Commonwealth or a law of a 
Territory; or 
(b) an incorporated company in which the Commonwealth, or a 
body corporate referred to in paragraph (a), has a controlling 
interest; 
"authorization" means an authorization under Division 1 of Part VII 
granted by the Commission or by the Tribunal on a review of a 
determination of the Commission; 
"business" includes a business not carried on for profit; 
"Chairman" means the Chairman of the Commission and includes a 
person acting as Chairman of the Commission; 
"commencing date" means 1 October 1974; 
"Commission" means the Trade Practices Commission established by 
section 6A, and includes a member of the Commission or a Division of 
the Commission performing functions of the Commission; 
"competition" includes competition from imported goods or from 
services rendered by persons not resident or not carrying on business 
in Australia; IP/N/l! AUS/Oll 
Page 16 
Trade Practices Act 1974 
"corporation" means a body corporate that: 
(a) is a foreign corporation; s. 4. 
(b) is a trading corporation formed within the limits of Australia 
or is a financial corporation so formed; 
(c) is incorporated in a Territory; or 
(d) is the holding company of a body corporate of a kind referred 
to in paragraph (a), (b) or (c); 
"covenant" means a covenant (including a promise not under seal) 
annexed to or running with an estate or interest in land (whether at 
law or in equity and whether or not for the benefit of other land), and 
"proposed covenant" has a corresponding meaning; 
"debenture" includes debenture stock, bonds, notes and any other 
document evidencing or acknowledging indebtedness of a body 
corporate, whether constituting a charge on property of the body 
corporate or not; 
"Deputy Chairman" means the Deputy Chairman of the Commission; 
"Deputy President" means a Deputy President of the Tribunal, and 
includes a person appointed to act as a Deputy President of the 
Tribunal; 
"Deputy Registrar" means a Deputy Registrar of the Tribunal; 
"document" includes: 
(a) a book, plan, paper, parchment or other material on which 
there is writing or printing, or on which there are marks, 
symbols or perforations having a meaning for persons qualified 
to interpret them; and 
(b) a disc, tape, paper or other device from which sounds or 
messages are capable of being reproduced; 
"Family Court Judge" means a Judge of the Family Court (including 
the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a 
Senior Judge); 
"financial corporation" means a financial corporation within the 
meaning of paragraph 51 (xx) of the Constitution and includes a body 
corporate that carries on as its sole or principal business the business 
of banking (other than State banking not extending beyond the limits 
of the State concerned) or insurance (other than State insurance not 
extending beyond the limits of the State concerned); 
"foreign corporation" means a foreign corporation within the meaning 
of paragraph 51 (xx) of the Constitution and includes a body corporate 
that is incorporated in an external Territory; 
"give effect to") in relation to a provision of a contract, arrangement or 
understanding, includes do an act or thing in pursuance of or in 
accordance with or enforce or purport to enforce; Trade Practices Act 1974 
s.4. 
"goods" includes: 
(a) ships, aircraft and other vehicles; 
(b) animals, including fish; IP/N/l! AUS/Oll 
Page 17 
(c) minerals, trees and crops, whether on, under or attached to 
land or not; and 
(d) gas and electricity; 
"member of the Commission" includes the Chairman and a person 
appointed to act as a member of the Commission but does not include 
an associate member of the Commission; 
"member of the Tribunal" includes the President and a person ap­
pointed to act as a member of the Tribunal; 
"New Zealand Commerce Commission" means the Commission estab­
lished by section 8 of the Commerce Act 1986 of New Zealand; 
"New Zealand Crown corporation" means a body corporate that is an 
instrument of the Crown in respect of the Government of New 
Zealand; 
"practice of exclusive dealing" means the practice of exclusive dealing 
referred to in subsection 47 (2), (3), (4), (5), (6), (7), (8) or (9); 
"practice of resale price maintenance" means the practice of resale 
price maintenance referred to in Part VIII; 
"President" means the President of the Tribunal and includes a person 
appointed to act as President of the Tribunal; 
"presidential member" or "presidential member of the Tribunal" 
means the President or a Deputy President; 
"price" includes a charge of any description; 
"provision", in relation to an understanding, means any matter for­
ming part of the understanding; 
"Registrar" means the Registrar of the Tribunal; 
"require", in relation to the giving of a covenant, means require or 
demand the giving of a covenant, whether by way of making a contract 
containing the covenant or otherwise, and whether or not a covenant is 
given in pursuance of the requirement or demand; 
"send" includes deliver, and "sent" and "sender" have corresponding 
meanings; 
"services" includes any rights (including rights in relation to, and 
interests in, real or personal property), benefits, privileges or facilities 
that are, or are to be, provided, granted or conferred in trade or 
commerce, and without limiting the generality of the foregoing, in­
cludes the rights, benefits, privileges or facilities that are, or are to be, 
provided, granted or conferred under: 
(a) a contract for or in relation to: IP/N/l! AUS/O/l 
Page 18 
Trade Practices Act 1974 
s.4. 
(i) the performance of work (including work of a profes­
sional nature), whether with or without the supply of 
goods; 
(ii) the provision of, or the use or enjoyment of facilities 
for, amusement, entertainment, recreation or instruc­
tion; or 
(Hi) the conferring of rights, benefits or privileges for which 
remuneration is payable in the form of a royalty, tri­
bute, levy or similar exaction; 
(b) a contract of insurance; 
(c) a contract between a banker and a customer of the banker 
entered into in the course of the carrying on by the banker of 
the business of banking; or 
(d) any contract for or in relation to the lending of moneys; 
but does not include rights or benefits being the supply of goods or the 
performance of work under a contract of service; 
"share" includes stock; 
"supply", when used as a verb, includes: 
(a) in relation to goods-supply (including re-supply) by way of 
sale, exchange, lease, hire or hire-purchase; and 
(b) in relation to services-provide, grant or confer; 
and, when used as a noun, has a corresponding meaning, and 
"supplied" and "supplier" have corresponding meanings; 
"Territory" means: 
(a) an internal Territory; or 
(b) the Territory of Christmas Island; or 
(c) the Territory of Cocos (Keeling) Islands; 
"the Court" or "the Federal Court" means the Federal Court of 
Australia; 
"the Family Court" means the Family Court of Australia; 
"trade or commerce" means trade or commerce within Australia or 
between Australia and places outside Australia; 
"trading corporation" means a trading corporation within the meaning 
of paragraph 51 (xx) of the Constitution; 
"Tribunal" means the Trade Practices Tribunal continued in existence 
by this Act, and includes a member of that Tribunal or a Division of 
that Tribunal performing functions of that Tribunal; 
"unsolicited goods" means goods sent to a person without any request 
made by him or on his behalf; 
"unsolicited services" means services supplied to a person without any 
request made by him or on his behalf. s.4. 
(2) In this Act: IPINIl! ADS/O/l 
Page 19 
Trade Practices Act 1974 
(a) a reference to engaging in conduct shall be read as a reference 
to doing or refusing to do any act, including the making of, or 
the giving effect to a provision of, a contract or arrangement, 
the arriving at, or the giving effect to a provision of, an 
understanding or the requiring of the giving of, or the giving 
of, a covenant; 
(b) a reference to conduct, when that expression is used as a noun 
otherwise than as mentioned in paragraph (a), shall be read as 
a reference to the doing of or the refusing to do any act, 
including the making of, or the giving effect to a provision of, 
a contract or arrangement, the arriving at, or the giving effect 
to a provision of, an understanding or the requiring of the 
giving of, or the giving of, a covenant; 
(c) a reference to refusing to do an act includes a reference to: 
(i) refraining (otherwise than inadvertently) from doing 
that act; or 
Cii) making it known that that act will not be done; and 
(d) a reference to a person offering to do an act, or to do an act 
on a particular condition, includes a reference to the person 
making it known that the person will accept applications, 
offers or proposals for the person to do that act or to do that 
act on that condition, as the case may be. 
(3) Where a provision of this Act is expressed to render a 
provision of a contract, or to render a covenant, unenforceable if the 
provision of the contract or the covenant has or is likely to have a 
particular effect, that provision of this Act applies in relation to the 
provision of the contract or the covenant at any time when the 
provision of the contract or the covenant has or is likely to have that 
effect notwithstanding that: 
(a) at an earlier time the provision of the contract or the covenant 
did not have that effect or was not regarded as likely to have 
that effect; or 
(b) the provision of the contract or the covenant will not or may 
not have that effect at a later time. 
(4) In this Act: 
(a) a reference to the acquisition of shares in the capital of a body 
corporate shall be construed as a reference to an acquisition, 
whether alone or jointly with another person, of any legal or 
equitable interest in such shares; and 
(b) a reference to the acquisition of assets of a person shall be 
construed as a reference to an acquisition, whether alone or 
jointly with another person, of any legal or equitable interest IPINll! AUS/O/I 
Page 20 
Trade Practices Act 1974 
s.4A. 
in such assets but does not include a reference to an acquisi­
tion by way of charge only or an acquisition in the ordinary 
course of business. 
Subsidiary, holding and related bodies corporate 
4A. (1) For the purposes of this Act, a body corporate shall, 
subject to subsection (3), be deemed to be a subsidiary of another 
body corporate if: 
(a) that other body corporate: 
(i) controls the composition of the board of directors of 
the first-mentioned body corporate; 
(ii) is in a position to cast, or control the casting of, more 
than one-half of the maximum number of votes that 
might be cast at a general meeting of the first­
mentioned body corporate; or 
(iii) holds more than one-half of the allotted share capital 
of the first-mentioned body corporate (excluding any 
part of that allotted share capital that carries no right 
to participate beyond a specified amount in a distribu­
tion of either profits or capital); or 
(b) the first-mentioned body corporate is a subsidiary of any body 
corporate that is that other body corporate's subsidiary (in­
cluding any body corporate that is that other body corporate's 
subsidiary by another application or other applications of this 
paragraph). 
(2) For the purposes of subsection (1), the composition of a body 
corporate's board of directors shall be deemed to be controlled by 
another body corporate if that other body corporate, by the exercise of 
some power exercisable by it without the consent or concurrence of 
any other person, can appoint or remove all or a majority of the 
directors, and for the purposes of this provision that other body 
corporate shall be deemed to have power to make such an appoint­
ment if: 
(a) a person cannot be appointed as a director without the 
exercise in his favour by that other body corporate of such a 
power; or 
(b) a person's appointment as a director follows necessarily from 
his being a director or other officer of that other body 
corporate. Trade Practices Act 1974 
s.4A. IPINIl! AUS/O/1 
Page 21 
(3) In determining whether a body corporate is a subsidiary of 
another body corporate: 
(a) any shares held or power exercisable by that other body 
corporate in a fiduciary capacity shall be treated as not held or 
exercisable by it; 
(b) subject to paragraphs (c) and (d), any shares held or power 
exercisable: 
(i) by any person as a nominee for that other body cor­
porate (except where that other body corporate is con­
cerned only in a fiduciary capacity); or 
(ii) by, or by a nominee for, a subsidiary of that other body 
corporate, not being a subsidiary that is concerned only 
in a fiduciary capacity; 
shall be treated as held or exercisable by that other body 
corporate; 
(c) any shares held or power exercisable by any person by virtue 
of the provisions of any debentures of the first-mentioned 
body corporate, or of a trust deed for securing any allotment 
of such debentures, shall be disregarded; and 
(d) any shares held or power exercisable by, or by a nominee for, 
that other body corporate or its subsidiary (not being held or 
exercisable as mentioned in paragraph (c» shall be treated as 
not held or exercisable by that other body corporate if the 
ordinary business of that other body corporate or its subsid­
iary, as the case may be, includes the lending of money and 
the shares are held or the power is exercisable by way of 
security only for the purposes of a transaction entered into in 
the ordinary course of that business. 
(4) A reference in this Act to the holding company of a body 
corporate shall be read as a reference to a body corporate of which 
that other body corporate is a subsidiary. 
(5) Where a body corporate: 
(a) is the holding company of another body corporate; 
(b) is a subsidiary of another body corporate; or 
(c) is a subsidiary of the holding company of another body 
corporate; 
that first-mentioned body corporate and that other body corporate 
shall, for the purposes of this Act, be deelned to be related to each 
other. IP/N/l/AUS/O/1 
Page 22 
Trade Practices Act 1974 
s.4B. 
(6) In proceedings under this Act, whether in the Court or before 
the Tribunal or the Commission, it shall be presumed, unless the 
contrary is established, that bodies corporate are not, or were not at a 
particular time, related to each other. 
Consumers 
4B. (1) For the purposes of this Act, unless the contrary intention 
appears: 
(a) a person shall be taken to have acquired particular goods as a 
consumer if, and only if: 
(i) the price of the goods did not exceed the prescribed 
amount; or 
(ii) where that price exceeded the prescribed amount-the 
goods were of a kind ordinarily acquired for personal, 
domestic or household use or consumption or the 
goods consisted of a commercial road vehicle; 
and the person did not acquire the goods, or hold himself out 
as acquiring the goods, for the purpose of re-supply or for the 
purpose of using them up or transforming them, in trade or 
commerce, in the course of a process of production or manu­
facture or of repairing or treating other goods or fixtures on 
land; and 
(b) a person shall be taken to have acquired particular services as 
a consumer if, and only if: 
(i) the price of the services did not exceed the prescribed 
amount; or 
(ii) where that price exceeded the prescribed amount-the 
services were of a kind ordinarily acquired for per­
sonal, domestic or household use or consumption. 
(2) For the purposes of subsection (1): 
(a) the prescribed amount is $40,000 or, if a greater amount is 
prescribed for the purposes of this paragraph, that greater 
amount; 
(b) subject to paragraph (c), the price of goods or services pur­
chased by a person shall be taken to have been the amount 
paid or payable by the person for the goods or services; 
(c) where a person purchased goods or services together with 
other property or services, or with both other property and 
services, and a specified price was not allocated to the goods 
or services in the contract under which they were purchased, 
the price of the goods or services shall be taken to have been: s.4B. Trade Practices Act 1974 IP/N/l/ADS/O/1 
Page 23 
(i) the price at which, at the time of the acquisition, the 
person could have purchased from the supplier the 
goods or services without the other property or ser­
vices; 
(ii) if, at the time of the acquisition, the goods or services 
were not available for purchase from the supplier ex­
cept together with the other property or services but, at 
that time, goods or services of the kind acquired were 
available for purchase from another supplier without 
other property or services-the lowest price at which 
the person could, at that time, reasonably have pur­
chased goods or services of that kind from another 
su pplier; or 
(iii) if, at the time of the acquisition, goods or services of 
the kind acquired were not available for purchase from 
any supplier except together with other property or 
services-the value of the goods or services at that 
time; 
(d) where a person acquired goods or services otherwise than by 
way of purchase, the price of the goods or services shall be 
taken to have been: 
(i) the price at which, at the time of the acquisition, the 
person could have purchased the goods or services 
from the supplier; 
(ii) if, at the time of the acquisition, the goods or services 
were not available for purchase from the supplier or 
were so available only together with other property or 
services but, at that time, goods or services of the kind 
acquired were available for purchase from another 
supplier-the lowest price at which the person could, 
at that time, reasonably have purchased goods or ser­
vices of that kind from another supplier; or 
(iii) if goods or services of the kind acquired were not 
available, at the time of the acquisition, for purchase 
from any supplier or were not so available except 
together with other property or services-the value of 
the goods or services at that time; and 
(e) without limiting by implication the meaning of the expression 
"services" in subsection 4 (1), the obtaining of credit by a 
person in connection with the acquisition of goods or services 
by him shall be deemed to be the acquisition by him of a 
service and any amount by which the amount paid or payable 
by him for the goods or services is increased by reason of his 
so obtaining credit shall be deemed to be paid or payable by 
him for that service. IP/N/l! AUS/Oll 
Page 24 
Trade Practices Act 1974 
s.4C. 
(3) Where it is alleged in any proceeding under this Act or in any 
other proceeding in respect of a matter arising under this Act that a 
person was a consumer in relation to particular goods or services, it 
shall be presumed, unless the contrary is established, that the person 
was a consumer in relation to those goods or services. 
(4) In this section, "commercial road vehicle" means a vehicle or 
trailer acquired for use principally in the transport of goods on public 
roads. 
Acquisition, supply and re-supply 
4C. In this Act, unless the contrary intention appears: 
(a) a reference to the acquisition of goods includes a reference to 
the acquisition of property in, or rights in relation to, goods in 
pursuance of a supply of the goods; 
(b) a' reference to the supply or acquisition of goods or services 
includes a reference to agreeing to supply or acquire goods or 
services; 
(cr 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; 
(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. 
Exclusionary provisions 
4D. (1) A provision of a contract, arrangement or understanding, 
or of a proposed contract, arrangement or understanding, shall be 
taken to be an exclusionary provision for the purposes of this Act if: 
(a) the contract or arrangement was made, or the understanding 
was arrived at, or the proposed contract or arrangement is to 
be made, or the proposed understanding is to be arrived at, 
between persons any 2 or more of whom are competitive with 
each other; and 
(b) the provision has the purpose of preventing, restricting or 
limiting: s.4E. IP/N/lI AUS/O/1 
Page 25 
Trade Practices Act 1974 
(i) the supply of goods or services to, or the acquisition of 
goods or services from, particular persons or classes of 
persons; or 
(ii) the supply of goods or services to, or the acquisition of 
goods or services from, particular persons or classes of 
persons in particular circumstances or on particular 
conditions; 
by all or any of the parties to the contract, arrangement or 
understanding or of the proposed parties to the proposed 
contract, arrangement or understanding or, if a party or pro­
posed party is a body corporate, by a body corporate that is 
related to the body corporate. 
(2) A person shall be deemed to be competitive with another 
person for the purposes of subsection (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, arrange­
ment 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, arrange­
ment or understanding relates. 
Market 
4E. For the purposes of this Act, unless the contrary intention 
appears, "market" means a market in Australia and, when used in 
relation to any goods or services, includes a market for those goods or 
services and other goods or services that are substitutable for, or 
otherwise competitive with, the first-mentioned goods or services. 
References to purpose or reason 
4F. For the purposes of this Act: 
(a) a provision of a contract, arrangement or understanding or of 
a proposed contract, arrangement or understanding, or a cov­
enant or a proposed covenant, shall be deemed to have had, or 
to have, a particular purpose if: 
(i) the provision was included in the contract, arrange­
ment or understanding or is to be included in the 
proposed contract, arrangement or understanding, or 
the covenant was required to be given or the proposed 
covenant is to be required to be given, as the case may 
be, for that purpose or for purposes that included or 
include that purpose; and IP/N/l! AUS/Oll 
Page 26 
Trade Practices Act 1974 
(ii) that purpose was or is a substantial purpose; and s.4G. 
(b) a person shall be deemed to have engaged or to engage in 
conduct for a particular purpose or a particular reason if: 
(i) the person engaged or engages in the conduct for 
purposes that included or include that purpose or for 
reasons that included or include that reason, as the 
case may be; and 
(ii) that purpose or reason was or is a substantial purpose 
or reason. 
Lessening of competition to include preventing or hindering 
competition 
4G. For the purposes of this Act, references to the lessening of 
competition shall be read as including references to preventing or 
hindering competition. 
Application of Act in relation to leases and licences of land and 
buildings 
4H. In this Act: 
(a) a reference to a contract shall be construed as including a 
reference to a lease of, or a licence in respect of, land or a 
building or part of a building and shall be so construed 
notwithstanding the express references in this Act to such 
leases or licences; 
(b) a reference to making or entering into a contract, in relation 
to such a lease or licence, shall be read as 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, shall be read as including a reference to any person 
bound by, or entitled to the benefit of, any provision contained 
in the lease or licence. 
Joint ventures 
4J. In this Act: 
(a) a reference to a joint venture is a reference to an activity in 
trade or commerce: 
(i) carried on jointly by two or more persons, whether or 
not in partnership; or 
(ii) carried on by a body corporate formed by two or more 
persons for the purpose of enabling those persons to 
carry on that activity jointly by means of their joint 
control, or by means of their ownership of shares in 
the capital, of that body corporate; and IP/N/l! AUS/O/l 
Page 27 
Trade Practices Act 1974 
s.4K. 
(b) a reference to a contract or arrangement made or understand­
ing arrived at, or to a proposed contract or arrangement to be 
made or proposed understanding to be arrived at, for the 
purposes of a joint venture shall, in relation to a joint venture 
by way of an activity carried on by a body corporate as 
mentioned in subparagraph (a) (ii), be read as including a 
reference to the rnernorand urn and articles of association, rules 
or other document that constitute or constitutes, or are or is to 
constitute, that body corporate. 
Loss or damage to include injury 
4K. In this Act: 
(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 
Cb) a reference to the amount of any loss or damage includes a 
reference to damages in respect of an injury. 
Severability 
4L. If the making of a contract after the commencement of this 
section contravenes this Act by reason of the inclusion of a particular 
provision in the contract, then, subject to any order made under 
section 87 or 87 A, nothing in this Act affects the validity or 
enforceability of the contract otherwise than in relation to that provi­
sion in so far as that provision is severable. 
Saving of law relating to restraint of trade and breaches of confidence 
4M. This Act does not affect the operation of: 
(a) the law relating to restraint of trade in so far as that law is 
capable of operating concurrently with this Act; or 
(b) the law relating to breaches of confidence; 
but nothing in the law referred to in paragraph (a) or (b) affects the 
interpretation of this Act. 
Extended application of Parts IV, IV A and V 
5. (1) Parts IV, IV A and V extend to the engaging in conduct 
outside Australia by bodies corporate incorporated or carrying on 
business within Australia or by Australian citizens or persons ordinar­
ily resident within Australia. 
(lA) In addition to the extended operation that section 46A has by 
virtue of subsection (1), that section extends to the engaging in conduct 
outside Australia by: IP/N/l! AUS/O/I 
Page 28 
Trade Practices Act 1974 
(a) New Zealand and New Zealand Crown corporations; or s.6. 
(b) bodies corporate carrying on business within New Zealand; or 
(c) persons ordinarily resident within New Zealand. 
(2) In addition to the extended operation that sections 47 and 48 
have by virtue of subsection (1), those sections extend to the engaging 
in conduct outside Australia by any persons in relation to the supply 
by those persons of goods or services to persons within Australia. 
(3) Where a claim under section 82 is made in a proceeding, a 
person is not entitled to rely at a hearing in respect of that proceeding 
on conduct to which a provision of this Act extends by virtue of 
subsection (1) or (2) of this section except with the consent in writing 
of the Minister. 
(4) A person other than the Minister or the Commission is not 
entitled to make an application to the Court for an order under 
subsection 87 (1) or (lA) in a proceeding in respect of conduct to 
which a provision of this Act extends by virtue of subsection (1) or (2) 
of this -section except with the consent in writing of the Minister. 
(5) The Minister shall give a consent under subsection (3) or (4) in 
respect of a proceeding unless, in the opinion of the Minister: 
(a) the law of the country in which the conduct concerned was 
engaged in required or specifically authorised the engaging in 
of the conduct; and 
(b) it is not in the national interest that the consent be given. 
Additional operation of Act 
6. (1) Without prejudice to its effect apart from this section, this 
Act also has effect as provided by this section. 
(2) This Act, other than Part X, has, by force of this subsection, 
the effect it would have if: 
(a) any references in this Act other than in section 55 to trade or 
commerce were, by express provision, confined to trade or 
commerce: 
(i) between Australia and places outside Australia; 
(ii) among the States; 
(iii) within a Territory, between a State and a Territory or 
between two ':ferritories; or 
(iv) by way of the supply of goods or services to the 
Commonwealth or an authority or instrumentality of 
the Commonwealth; s.6. IPINIl! AUSIO/I 
Page 29 
Trade Practices Act 1974 
(b) sections 45, 45B, 45D, 46, 46A, 53B, 60 and 61, subsections 64 
(3) and (4), section 75A and Part VIII were, by express 
provision, confined in their operation to engaging in conduct 
to the extent to which the conduct takes place in the course of 
or in relation to: 
(i) trade or commerce between Australia and places out­
side Australia; 
(ii) trade or commerce among the States; 
(Hi) trade or commerce within a Territory, between a State 
and a Territory or between two Territories; or 
(iv) the supply of goods or services to the Commonwealth 
or an authority or instrumentality of the Common­
wealth; 
( c) any reference in Division 2 of Part V to a contract for the 
supply of goods or services and any reference in Division 2A 
of that Part or in Part V A to the supply of goods, were, by 
express provision, confined to a contract made, or the supply 
of goods, as the case may be: 
(i) in the course of, or in relation to, trade or commerce 
between Australia and places outside Australia; 
(ii) in the course of, or in relation to, trade or commerce 
among the States; or 
(iii) in the course of, or in relation to, trade or commerce 
within a Territory, between a State and a Territory or 
between two Territories; 
(d) in subsection 45 (1) and subparagraph 87 (3) (a) (i) the words 
"in so far as it confers rights or benefits or imposes duties or 
obligations on a corporation" were omitted; 
(e) in subsection 45B (1) and sub paragraph 87 (3) (a) (ii) the 
words "in so far as it confers rights or benefits or imposes 
duties or obligations on a corporation or on a person asso­
ciated with a corporation" were omitted; 
(ea) paragraph 45D (1) (a) were omitted and in paragraph 45D (1) 
(b) the words "the fourth person is a corporation and" were 
omitted; 
(g) subsection 96 (2) were omitted; and 
(h) subject to paragraphs (d), (e), (ea) and (g), a reference in this 
Act to a corporation, except a reference in section 4, 48, 50, 
50A or 81, included a reference to a person not being a 
corporation. 
(3) In addition to the effect that this Act, other than Part X, has as 
provided by subsection (2), the provisions of Part IV A and of Di­
visions 1 and lA of Part V have, by force of this subsection, the effect 
they would have if: IP/N/lIAUSIO/1 
Page 30 
Trade Practices Act 1974 
s.6A. 
(a) those provIsIons (other than section 55) were, by express 
provision, confined in their operation to engaging in conduct 
to the extent to which the conduct involves the use of postal, 
telegraphic or telephonic services or takes place in a radio or 
television broadcast; and 
(b) a reference in those provisions to a corporation included a 
reference to a person not being a corporation. 
(4) In addition to the effect that this Act, other than Part X, has as 
provided by subsections (2) and (3), the provisions of Part IV A and of 
Division 1 of Part V (other than sections 53A, 55 and 61) also have, by 
force of this subsection, the effect they would have if: 
(a) those provisions were, by express provision, confined in their 
operation to engaging in conduct in a Territory; and 
(b) a reference in those provisions to a thing done by a corpora­
tion in trade or commerce included a reference to a thing 
done in the course of the promotional activities of a 
professional person. 
(5) In the application of section 73 in relation to a supplier who is 
a natural person, that section has effect as if there were substituted for 
paragraph 73 (6) (a) the following paragraph: 
"(a) the supplier had died or is an undischarged bankrupt or a 
person whose affairs are being dealt with under Part X of the 
Bankruptcy Act 1966; or". 
PART II-THE TRADE PRACTICES COMMISSION 
Establishment of Commission 
6A. (1) Upon the commencement of this section the Commission 
established by the Trade Practices Act 1974 as in force immediately 
before the commencement of this section ceases to exist and there is 
established by this section a Commission by the name of the Trade 
Practices Commission. 
(2) The Commission: 
(a) is a body corporate, with perpetual succession; 
(b) shall have an official seal; 
( c) may acquire, hold and dispose of real and personal property; 
and 
(d) may sue or be sued in its corporate name. IPINIl! AUSIO/1 
Page 31 
Trade Practices Act 1974 
s.7. 
Constitution of Commission 
7. (1) The Commission shall consist of a Chairman and such 
number of other members as are from time to time appointed in 
accordance with this Act. 
(2) The members of the Commission shall be appointed by the 
Governor-General and shall be so appointed as full-time members. 
(3) A person shall not be appointed as a member of the Commis­
sion unless he appears to the Governor-General to be qualified for 
appointment by virtue of his knowledge of, or experience in, industry, 
commerce, economics, law or public administration. 
Terms and conditions of appointment 
8. (1) Subject to this Part, a member of the Commission holds 
office for such period, not exceeding 7 years, as is specified in the 
instrument of his appointment and on such terms and conditions as 
the Governor-General determines, but is eligible for re-appointment. 
(2) A person who has attained the age of 65 years shall not be 
appointed or re-appointed as a member of the Commission, and a 
person shall not be appointed or re-appointed as a member of the 
Commission for a period that extends beyond the date on which he 
will attain the age of 65 years. 
Associate members 
SA. (1) The Minister may appoint persons to be associate 
members of the Commission. 
(2) An associate member of the Commission shall be appointed for 
such period not exceeding 5 years as is specified in the instrument of 
his appointment, but is eligible for re-appointment. 
(3) Subject to this Part, an associate member of the Commission 
holds office on such terms and conditions as the Minister determines. 
(4) The Chairman may, by writing signed by him, direct that, for 
the purposes of the exercise of the powers of the Commission under 
this Act in relation to a specified matter, not being an exercise of those 
powers by a Division of the Commission, a specified associate member 
of the Commission or specified associate members of the Commission 
shall be deemed to be a member or members of the Commission and, 
in that case, unless the contrary intention appears, a reference in this 
Act to a member of the Commission shall, for the purposes only of the 
exercise of the powers of the Commission in relation to that matter, be 
construed as including a reference to that associate member of the 
Commission or each of those associate members of the Commission, as 
the case may be. IPINIl! AUSIO/I 
Page 32 
Trade Practices Act 1974 
s.9. 
(5) Associate members of the Commission shall be deemed to be 
members of the Commission for the purposes of section 19. 
(6) For the purpose of the determination by the Commission of an 
application for an authorization or the making by the Commission of 
any decision for the purposes of subsection 93 (3), the Chairman shall 
consider: 
(a) whether he should give a direction under subsection (4) of this 
section; or 
(b) in the case of a matter in relation to which the Chairman 
proposes to give a direction under subsection 19 (1), whether 
he should direct that the Division concerned is to include an 
associate member of the Commission or associate members of 
the Commission. 
(7) Nothing in subsection (4) or (5) deems an associate member of 
the Commission to be a member of the Commission for any purpose 
related to the preparation of a report by the Commission under section 
171. 
Remuneration 
9. (1) A member of the Commission shall be paid such remunera­
tion as is determined by the Remuneration Tribunal, but, until that 
remuneration is so determined, he shall be paid such remuneration as 
is prescribed. 
(2) Subject to the Remuneration Tribunal Act 1973, a member of 
the Commission shall be paid such allowances as are prescribed. 
(3) In this section, "member of the Commission" includes an 
associate member of the Commission. 
Deputy Chairman 
10. (1) The Governor-General may appoint a person who is, or is 
to be, a member of the Commission to be the Deputy Chairman of the 
Commission. 
(2) A person appointed under this section holds office as Deputy 
Chairman until the expiration of his period of appointment as a 
member of the Commission or until he sooner ceases to be a member 
of the Commission. 
(3) Where a member of the Commission appointed as Deputy 
Chairman is, upon ceasing to be a Deputy Chairman by virtue of the 
expiration of the period of his appointment as a member, re-appointed 
as a member, he is eligible for re-appointment as Deputy Chairman. s.11. IPIN/V AUS/O/I 
Page 33 
Trade Practices Act 1974 
(4) The Deputy Chairman may resign his office of Deputy Chair­
man by writing signed by him and delivered to the Governor-General. 
Acting Chairman 
11. (1) Where there is, or is expected to be, a vacancy in the 
office of Chairman, the Governor-General may appoint a person to act 
as Chairman until the filling of the vacancy. 
(lA) A person appointed under subsection (1) to act during a 
vacancy shall not continue so to act for more than 12 months. 
(2) Where the Chairman is absent from duty or from Australia: 
(a) the Deputy Chairman shall act as Chairman during the 
absence; or 
(b) if there is no Deputy Chairman or the Deputy Chairman is not 
available to act as Chairman, the Minister may appoint a 
member of the Commission to act as Chairman during the 
absence of the Chairman, but any such appointment ceases to 
have effect if a person is appointed as Deputy Chairman or the 
Deputy Chairman becomes available to act as Chairman. 
(3) A person acting as Chairman shall act in that capacity on such 
terms and conditions as the Governor-General determines and has all 
the powers and duties, and shall perform all the functions, conferred 
on the Chairman by this Act. 
Leave of absence 
12. (1) Subject to section 87E of the Public Service Act 1922, a 
member of the Commission has such recreation leave entitlements as 
are determined by the Remuneration Tribunal. 
(2) The Minister may grant a member of the Commission leave of 
absence, other than recreation leave, on such terms and conditions as 
to remuneration or otherwise as the Minister determines. 
Termination of appointment of members of the Commission 
13.2 (1) The Governor-General may terminate the appointment of 
a member of the Commission for misbehaviour or physical or mental 
incapacity. 
(2) If a member of the Commission: 
(a) becomes bankrupt, applies to take the benefit of any law for 
the relief of bankrupt or insolvent debtors, compounds with 
his creditors or makes an assignment of his remuneration for 
their benefit; 
(b) fails to comply with his obligations under section 17; IP/N/lIAUS/O/1 
Page 34 
Trade Practices Act 1974 
s.14. 
(c) without the consent of the Minister engages in any paid em­
ployment outside the duties of his office; or 
(d) is absent from duty, except on leave of absence granted by the 
Minister, for 14 consecutive days or for 28 days in any 12 
months; 
the Governor-General shall terminate the appointment of that member 
of the Commission. 
Termination of appointment of associate members of the Commission 
14. (1) The Minister may terminate the appointment of an 
associate member of the Commission for misbehaviour or physical or 
mental incapacity. 
(2) If an associate member of the Commission: 
(a) becomes bankrupt, applies to take the benefit of any law for 
the relief of bankrupt or insolvent debtors, compounds with 
his creditors or makes an assignment of his remuneration for 
their benefit; or 
(b) fails to comply with his obligations under section 17; 
the Minister shall terminate the appointment of that associate member 
of the Commission. 
Resignation 
15. (1) A member of the Commission may resign his office by 
writing signed by him and delivered to the Governor-General. 
(2) An associate member of the Commission may resign his office 
by writing signed by him and delivered to the Minister. 
Arrangement of business 
16. The Chairman may give directions as to the arrangement of 
the business of the Commission. 
Disclosure of interests by members 
17. (1) Where a member of the Commission other than the 
Chairman is taking part, or is to take part, in the determination of a 
matter before the Commission and the member has or acquires any 
pecuniary interest that could; conflict with the proper performance of 
his or her functions in relation to the determination of the matter: 
(a) the member shall disclose the interest to the Chairman; and 
(b) the member shall not take part, or continue to take part, in 
the determination of the matter if: s.18. IP/N/l! AUS/O/l 
Page 35 
Trade Practices Act 1974 
(i) the Chairman gives a direction under paragraph (2) (a) 
in relation to the matter; or 
(H) all of the persons concerned in the matter do not 
consent to the member taking part in the determina­
tion of the matter. 
(2) Where the Chairman becomes aware that a member of the 
Commission is taking part, or is to take part, in the determination of a 
matter and that the member has in relation to the determination of the 
matter such an interest: 
(a) if the Chairman considers that the member should not take 
part, or should not continue to take part, in the determination 
of the matter-the Chairman shall give a direction to the 
member accordingly; or 
(b) in any other case-the Chairman shall cause the interest of the 
member to be disclosed to the persons concerned in the 
matter. 
(3) The Chairman shall give written notice to the Minister of all 
pecuniary interests that the Chairman has or acquires in any business 
carried on in Australia or in any body corporate carrying on any such 
business. 
(4) In this section, "member of the Commission" includes an 
associate member of the Commission. 
l\'Ieetings of Commission 
18. (1) Subject to this section, the Chairman shall convene such 
meetings of the Commission as he thinks necessary for the efficient 
performance of the functions of the Commission. 
(2) Meetings of the Commission shall be held at such places as 
the Chairman determines. 
(3) The Chairman shall preside at all meetings of the Commission 
at which he is present. 
(4) In the absence of the Chairman from a meeting of the 
Commission, the Deputy Chairman shall preside. 
(5) Subject to this Act and the regulations, the member presiding 
at a meeting of the Commission may give directions regarding the 
procedure to be followed at or in connexion with the meeting. 
(6) At a meeting of the Commission: 
(a) three members (including the Chairman or the Deputy Chair­
man) form a quorum; 
(b) all questions shall be decided by a majority of votes of the 
members present and voting; and IPINIl! AUSIO/l 
Page 36 
Trade Practices Act 1974 
s.19. 
(c) the member presiding has a deliberative vote and, in the event 
of an equality of votes, also has a casting vote. 
(7) If the Commission so determines, a member or members may 
participate in, and form part of a quorum at, a meeting of the 
Commission or a Division of the Commission by means of any of the 
following methods of communication: 
(a) telephone; 
(b) closed circuit television; 
(c) another method of communication determined by the Com­
mission. 
(8) A determination made by the Commission under subsection 
(7) may be made in respect of a particular meeting or meetings of the 
Commission or a Division of the Commission or in respect of all 
meetings of the Commission or a Division of the Commission. 
Chairman may direct Commission to sit in Divisions 
19. (1) The Chairman may, by writing signed by him, direct that 
the powers of the Commission under this Act in relation to a matter 
shall be exercised by a Division of the Commission constituted by the 
Chairman and such other members (not being less than two in 
number) as are specified in the direction. 
(2) Where the Chairman has given a direction under subsection 
(1), he may, by writing signed by him, at any time before the Division 
of the Commission specified in the direction has made a determination 
in relation to the matter, revoke the direction or amend the direction 
in relation to the membership of the Division or in any other respect, 
and where the membership of a Division of the Commission is 
changed, the Division as constituted after the change may complete the 
determination of the matter. 
(3) For the purposes of the determination of a matter specified in 
a direction given under subsection (1), the Commission shall be 
deemed to consist of the Division of the Commission specified in the 
direction. 
(4) The Chairman is not required to attend a meeting of a Division 
of the COJ;Ilmission if he does not think fit to do so. 
(5) At a meeting of a Division of the Commission at which neither 
the Chairman nor the Deputy Chairman is present, a member of the 
Commission nominated for the purpose by the Chairman shall preside. 
(6) Notwithstanding section 18, at a meeting of a Division of the 
Commission, two members form a quorum. s.25. IP/N/1/AUS/O/l 
Page 37 
Trade Practices Act 1974 
(7) A Division of the Commission may exercise powers of the 
Commission under this Act notwithstanding that another Division of 
the Commission is exercising powers of the Commission at the same 
time. 
Delegation by Commission 
25. (1) The Commission may, by resolution, delegate to a member 
of the Commission, either generally or otherwise as provided by the 
instrument of delegation, any of its powers under this Act, other than 
this power of delegation and its powers to grant, revoke or vary an 
authorization. 
(2) A power so delegated may be exercised or performed by the 
delegate in accordance with the instrument of delegation. 
(3) A delegation under this section is revocable at will and does 
not prevent the exercise of a power by the Commission. 
Staff of Commission 
27. (1) The staff necessary to assist the Commission shall be 
persons appointed or employed under the Public Service Act 
1922-1973. 
(2) The Chairman of the Commission has all the powers of, or 
exercisable by, a Secretary under the Public Service Act 1922-1973 so 
far as those powers relate to the branch of the Australian Public 
Service comprising the staff referred to in subsection (1) as if that 
branch were a separate Department of the Australian Public Service. 
(3) For the purposes of section 26 of the Public Service Act 
1922-1973, the Chairman shall be deemed to be a Secretary. 
Functions of Commission in relation to dissemination of information, 
law reform and research 
28. (1) In addition to any other functions conferred on the 
Commission by this Act, the Commission has the following functions: 
(a) to make available to persons engaged in trade or commerce 
and other interested persons general information for their 
guidance with respect to the carrying out of the functions, or 
the exercise of the powers, of the Commission under this Act; 
(b) to examine critically, and report to the Minister on, the laws in 
force in Australia relating to the protection of consumers in 
respect of matters referred to the Commission by the Minister, 
being matters with respect-to which the Parliament has power 
to make laws; IP/N/l/AUS/O/1 
Page 38 
Trade Practices Act 1974 
s.28. 
( c) to conduct research in relation to matters affecting the inter­
ests of consumers, being matters with respect to which the 
Parliament has power to make laws; 
(d) to make available to the public general information in relation 
to matters affecting the interests of consumers, being matters 
with respect to which the Parliament has power to make laws; 
and 
( e) to make known for the guidance of consumers the rights and 
obligations of persons under provisions of laws in force in 
Australia that are designed to protect the interests of 
consumers. 
(2) Where a matter of a kind mentioned in paragraph (1) (b) is 
referred by the Minister to the Commission for examination and 
report: 
(a) the Commission shall cause to be published in the Gazette and 
in such newspapers and other journals as the Commission 
considers appropriate a notice: 
(i) stating that the reference has been made and specifying 
the matter to which the reference relates; and 
(ii) inviting interested persons to furnish to the Commis­
sion their views on that matter and specifying the time 
and manner within which those views are to be fur­
nished; 
(b) the Commission shall not furnish its report to the Minister 
until a reasonable opportunity has been given to interested 
persons to furnish to the Commission their views on the matter 
to which the reference relates; and 
(c) the Commission shall include in its report to the Minister any 
recommendations that it considers desirable with respect to the 
reform of the law relating to the matter to which the reference 
relates, whether those recommendations relate to the amend­
ment of existing laws or the making of new laws. 
(3) The Minister shall cause a copy of each report furnished to 
him by the Commission in relation to a matter referred to the Com­
mission under paragraph (1) (b) to be laid before each House of the 
Parliament as soon as practicable after the report is received by him. IP/N/l! AUS/O/l 
Page 39 
Trade Practices Act 1974 
s.29. 
Commission to comply with directions of Minister and requirements of 
the Parliament 
29. (1) The Minister may: 
(a) give directions as to matters to be given special consideration 
by the Commission in determining applications for authoriza­
tions or in making decisions for the purposes of paragraph 93 
(3) (a) or (b); and 
(b) give directions to the Commission in connexion with the per­
formance of its functions or the exercise of its powers under 
this Act, not being directions relating to the performance of its 
functions or the exercise of its powers under section 65J, 65K, 
65M or 65N or Part VII in relation to individual cases; 
and the' Commission shall comply with any directions so given. 
(2) Any direction given to the Commission under subsection (1) 
shall be in writing and the Minister shall cause a copy of the direction 
to be published in the Gazette as soon as practicable after the 
direction is given. 
(3) If either House of the Parliament or a Committee of either 
House, or of both Houses, of the Parliament requires the Commission 
to furnish to that House or Committee any information concerning the 
performance of the functions of the Commission under this Act, the 
Commission shall comply with the requirement, 
PART Ill-THE TRADE PRACTICES TRIBUNAL 
Constitution of Tribunal 
30. (1) The Trade Practices Tribunal in existence immediately 
before the commencing date continues in existence as the Trade 
Practices Tribunal. 
(2) The Trade Practices Tribunal so continued in existence shall 
consist of a President and such number of Deputy Presidents and 
other members as are appointed in accordance with this section. 
(3) A member of the Tribunal shall be appointed by the 
Governor-General. 
Qualifications of members of Tribunal 
31. (1) A person shall not be appointed as a presidential member 
of the Tribunal unless he is a Judge of a Federal Court, not being the 
High Court or a court of an external Territory. IPINIl! ADSIO/I 
Page 40 
Trade Practices Act 1974 
s.31A. 
(2) A person shall not be appointed as a member of the Tribunal 
other than a presidential member unless he appears to the Governor­
General to be qualified for appointment by virtue of his knowledge of, 
or experience in, industry, commerce, economics, law or public 
administration. 
Appointment of Judge as presidential member of Trade Practices 
Tribunal not to affect tenure etc. 
31A. The appointment of a Judge of a Federal Court as a 
presidential member of the Tribunal, or service by a Judge of a 
Federal Court as a presidential member of the Tribunal, whether the 
appointment was or is made or the service occurred or occurs before 
or after the commencement of this section, does not affect, and shall 
be deemed never to have affected, his tenure of office as a Judge of a 
Federal Court or his rank, title, status, precedence, salary, annual or 
other allowances or other rights or privileges as the holder of his office 
as a Judge of a Federal Court and, for all purposes, his service, 
whether before or after the commencement of this section, as a 
presidential member of the Tribunal shall be taken to have been, or to 
be, serVice as the holder of his office as a Judge of a Federal Court. 
Terms and conditions of appointment 
32. Subject to this Part, a member of the Tribunal holds office for 
such period, not exceeding 7 years, as is specified in the instrument of 
his appointment and on such terms and conditions as the Governor­
General determines, but is eligible for re-appointment. 
Remuneration and allowances of members of Trade Practices Tribunal 
33. 
(4) A member of the Tribunal other than a presidential member 
shall be paid such remuneration as is determined by the Remuneration 
Tribunal. 
(5) A member of the Tribunal other than a presidential member 
shall be paid such allowances as are prescribed. 
(6) Subsections (4) and (5) have effect subject to the Remuneration 
Tribunals Act 1973. 
Acting appointments 
34. (1) Where: 
(a) the President is, or is expected to be, absent from duty; or 
(b) there is, or is expected to be, a vacancy in the office of 
President; s.35. IPINIl! AUS/O/l 
Page 41 
Trade Practices Act 1974 
the Attorney-General may appoint a Deputy President or an acting 
Deputy President to act as President during the absence, or while there 
is a vacancy in the office of President, as the case may be. 
(2) Where a presidential member (including the President) of the 
Tribunal is, or is expected to be, absent from duty, the Governor­
General may appoint a person qualified to be appointed as a presiden­
tial member to act as a Deputy President during the absence from duty 
of the member. 
(3) Where a member of the Tribunal other than a presidential 
member is, or is expected to be, absent from duty, the Governor­
General may appoint a person qualified to be appointed as a member 
of the Tribunal other than a presidential member to act as such a 
member during the absence from duty of the member. 
(4) Where a person has been appointed under subsection (2) or 
(3), the Governor-General may, by reason of pending proceedings or 
other special circumstances, direct, before the absent member of the 
Tribunal resumes duty, that the person so appointed shall continue to 
act under the appointment after the resumption of duty by the absent 
member until the Governor-General terminates the appointment, but a 
person shall not continue to act as a member of the Tribunal by virtue 
of this subsection for more than 12 months after the resumption of 
duty by the absent member. 
(5) Where a person has been appointed under this section to act as 
a member of the Tribunal during the absence from duty of a member 
of the Tribunal, and that member ceases to hold office without having 
resun1ed duty, the period of appointment of the person so appointed 
shall be deen1ed to continue until it is terminated by the Governor­
General, or until the expiration of 12 months from the date on which 
the absent member ceases to hold office, whichever first happens. 
Suspension and removal of members of Tribunal 
35. (1) The Governor-General may suspend a member of the 
Tribunal from office on the ground of misbehaviour or physical or 
mental incapacity. 
(2) The Minister shall cause a statement of the ground of the 
suspension to be laid before each House of the Parliament within 7 
sitting days of the House after the suspension. 
(3) Where such a statement has been laid before a House of the 
Parliament, that House may, within 15 sitting days of that House after 
the day on which the statement has been laid before it, by resolution, 
declare that the member of the Tribunal should be restored to office 
and, if each I-louse so passes a resolution, the Governor-General shall 
terminate the suspension. IPINIl! AUSIO/l 
Page 42 
Trade Practices Act 1974 
s.36. 
(4) If, at the expiration of 15 sitting days of a House of the 
Parliament after the day on which the statement has been laid before 
that House, that House has not passed such a resolution, the 
Governor-General may remove the member of the Tribunal from 
office. 
(5) If a member of the Tribunal becomes bankrupt, applies to take 
the benefit of any law for the relief of bankrupt or insolvent debtors, 
compounds with his creditors or makes an assignment of his remu­
neration for their benefit, the Governor-General shall remove bim 
from office. 
(6) A member of the Tribunal shall not be removed from office 
except as provided by this section. 
(7) A presidential member of the Tribunal ceases to hold office if 
he no longer holds office as a Judge of a Federal Court, not being the 
High Court or a court of an external Territory. 
Resignation 
36. A member of the Tribunal may resign his office by writing 
signed by him and delivered to the Governor-General. 
Constitution of Tribunal for particular matters 
37. The Tribunal shall, for the purpose of hearing and determining 
proceedings, be constituted by a Division of the Tribunal consisting of 
a presidential member of the Tribunal and two members of the 
Tribunal who are not presidential members. 
Validity of determinations 
38. The validity of a determination of the Tribunal shall not be 
affected or called in question by reason of any defect or irregularity in 
the constitution of the Tribunal. 
Arrangement of business 
39. The President may give directions as to the arrangement of the 
business of the Tribunal and the constitution of Divisions of the 
Tribunal. 
Disclosure of interests by members of Tribunal 
40. (1) Where a member of the Tribunal is, or is to be, a member 
of a Division of the Tribunal in any proceedings and the member has 
or'a'cquires any pecuniary interest that could conflict with the proper 
performance of his or her functions in relation to the proceedings: 
(a) the member shall disclose the interest to the President; and s.41. IP/N/lIAUSIOIl 
Page 43 
Trade Practices Act 1974 
(b) the member shall not take part, or continue to take part, in 
the proceedings if: 
(i) the President gives a direction under paragraph (2) (a) 
in relation to the proceedings; or 
(ii) all of the persons concerned in the proceedings do not 
consent to the member taking part in the proceedings. 
(2) Where the President becomes aware that a member of the 
Tribunal is, or is to be, a member of a Division of the Tribunal in any 
proceedings and that the member has in relation to the proceedings 
such an interest: 
(a) if the President considers that the member should not take 
part, or should not continue to take part, in the proceed­
ings -the President shall give a direction to the member ac­
cordingly; or 
(b) in any other case-the President shall cause the interest of the 
member to be disclosed to the persons concerned in the 
proceedings. . 
(3) In this section: 
(a) a reference to proceedings shall be read as including a refer­
ence to proceedings by way of an inquiry by the Tribunal 
under this Act; and 
(b) a reference to a person concerned in proceedings, being an 
inquiry conducted by the Tribunal under section 132, shall be 
read as a reference to a person entitled, or granted leave, to be 
represented in the inquiry. 
Presidential member to preside 
41. The presidential member who is a member of a Division shall 
preside at proceedings of that Division. 
Decision of questions 
42. (1) A question of law arising in a matter before a Division of 
the Tribunal (including the question whether a particular question is 
one of law) shall be determined in accordance with the opinion of the 
presidential member presiding. 
(2) Subject to subsection (1), a question arising in proceedings 
before a Division of the Tribunal shall be determined in accordance 
with the opinion of a majority of the members constituting the 
Division. IP/N/l/AUS/O/1 
Page 44 
Trade Practices Act 1974 
Member of Tribunal ceasing to be available s.43. 
43. (1) This section applies where the hearing of any proceedings 
has been commenced or completed by the Tribunal but, before the 
matter to which the proceedings relate has been determined, one of 
the members constituting the Tribunal for the purposes of the pro­
ceedings has ceased to be a member of the Tribunal or has ceased to 
be available for the purposes of the proceedings. 
(2) Where the President is satisfied that this section applies in 
relation to proceedings, the President may direct that a specified 
member of the Tribunal shall take the place of the member referred to 
in subsection (1) for the purposes of the proceedings. 
(3) Where this section applies in relation to proceedings that were 
being dealt with before the Tribunal, the President may, instead of 
giving a direction under subsection (2), direct that the hearing and 
determination, or the determination, of the proceedings be completed 
by the Tribunal constituted by the members other than the member 
referred to in subsection (1). 
(4) Where the President has given a direction under subsection 
(3), he may, at any time before the determination of the proceedings, 
direct that a third member be added to the Tribunal as constituted in 
accordance with subsection (3). 
(5) The Tribunal as constituted in accordance with any of the 
provisions of this section for the purposes of any proceedings may 
have regard to any record of the proceedings before the Tribunal as 
previously constituted. 
Staff of Tribunal 
44. (1) There shall be a Registrar of the Tribunal and such 
Deputy Registrars of the Tribunal as are appointed in accordance with 
this section. 
(2) The Registrar and the Deputy Registrars shall be appointed by 
the Minister and shall have such duties and functions as are provided 
by this Act and the regulations and such other duties and functions as 
the President directs. 
(3) The Registrar and the Deputy Registrars, and the staff neces­
sary to assist them, shall be persons appointed or employed under the 
Public Service Act 1922-1973. s.44A. 
Acting appointments IP/~/l/j\lJS/()/l 
Page 45 
Trade Practices Act 1974 
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 reaSOD, 
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. 
(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 includ­
ing 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. IPINIl! AUSIO/l 
Page 46 
Trade Practices Act 1974 
PART IV -RESTRICTIVE TRADE PRACTICES s.45. 
Contracts, arrangements or understandings that restrict dealings or 
affect competition 
45. (1) If a provision of a contract made before the commence­
ment of the Trade Practices Amendment Act 1977: 
(a) is an exclusionary provision; or 
(b) has the purpose, or has or is likely to have the effect, of 
substantially lessening competition; 
that provision is unenforceable in so far as it confers rights or benefits 
or imposes duties or obligations on a corporation. 
(2) A corporation shall not: 
(a) make a contract or arrangement, or arrive at an understanding, 
if: 
(i) the proposed contract, arrangement or understanding 
contains an exclusionary provision; or 
(ii) a provision of the proposed contract, arrangement or 
understanding has the purpose, or would have or be 
likely to have the effect, of substantially lessening com­
petition; or 
(b) give effect to a provision of a contract, arrangement or under­
standing, whether the contract or arrangement was made, or 
the understanding was arrived at, before or after the com­
mencement of this section, if that provision: 
(i) is an exclusionary provision; or 
(ii) has the purpose, or has or is likely to have the effect, 
of substantially lessening competition. 
(3) For the purposes of this section and section 45A, 
"competition", in relation to a provision of a contract, arrangement or 
understanding or of a proposed contract, arrangement or understand­
ing, means competition in any market in which a corporation that is a 
party to the contract, arrangement or understanding or would 'be a 
party to the proposed contract, arrangement or understanding, or any 
body corporate related to such a corporation, supplies or acquires, or 
is likely to supply or acquire, goods or services or would, but for the 
provision, supply or acquire, or be likely to supply or acquire, goods 
or services. 
(4) For the purposes of the application of this section in relation 
to a particular corporation, a provision of a contract, arrangement or 
understanding or of a proposed contract, arrangement or understand-s.45. IP/N/l! AUS/O/I 
Page 47 
Trade Practices Act 1974 
ing shall be deemed to have or to be likely to have the effect of 
substantially lessening competition if that provision and anyone or 
more of the following provisions, namely: 
(a) the other provisions of that contract, arrangement or under­
standing or proposed contract, arrangement or understanding; 
and 
(b) the provisions of any other contract, arrangement or under­
standing or proposed contract, arrangement or understanding 
to which the corporation or a body corporate related to the 
corporation is or would be a party; 
together have or are likely to have that effect. 
(5) This section does not apply to or in relation to: 
(a) a provision of a contract where the provision constitutes a 
covenant to which section 45B applies or, but for subsection 
45B (9), would apply; 
(b) a provision of a proposed contract where the provision would 
constitute a covenant to which section 45B would apply or, but 
for subsection 45B (9), would apply; or 
(c) a provision of a contract, arrangement or understanding or of 
a proposed contract, arrangement or understanding in so far as 
the provision relates to conduct that contravenes section 48 or 
would contravene that section if this Act defined the acts 
constituting the practice of resale price maintenance by refer­
ence to the maximum price at which goods are to be sold or 
are to be advertised, displayed or offered for sale. 
(6) The making of a contract, arrangement or understanding does 
not constitute a contravention of this section by reason that the 
contract, arrangement or understanding contains a provision the giving 
effect to which would, or would but for the operation of subsection 47 
(10) or 88 (8) or section 93, constitute a contravention of section 47 
and this section does not apply to or in relation to the giving effect to 
a provision of a contract, arrangement or understanding by way of: 
(a) engaging in conduct that contravenes, or would but for the 
operation of subsection 47 (10) or 88 (8) or section 93 con­
travene, section 47; or 
(b) doing an act by reason of a breach or threatened breach of a 
condition referred to in subsection 47 (2), (4), (6) or (8), being 
an act done by a person at a time when: 
(i) an authorization under subsection 88 (8) is in force in 
relation to conduct engaged in by that person on that 
condition; or IPINIl! AUS/O/I 
Page 48 
Trade Practices Act 1974 
s.45A. 
(ii) by reason of subsection 93 (7) conduct engaged in by 
that person on that condition is not to be taken to have 
the effect of substantially lessening competition within 
the meaning of section 47. 
(7) This section does not apply to or in relation to a contract, 
arrangement or understanding in so far as the contract, arrangement or 
understanding provides, or to or in relation to a proposed contract, 
arrangement or understanding in so far as the proposed contract, 
arrangement or understanding would provide, directly or indirectly for 
the acquisition of any shares in the capital of a body corporate or any 
assets of a person. 
(8) This section does not apply to or in relation to a contract, 
arrangement or understanding, or a proposed contract, arrangement or 
understanding, the only parties to which are or would be bodies 
corporate that are related to each other. 
(9) The making by a corporation of a contract that contains a 
provision in relation to which subsection 88 (1) applies is not a 
contravention of subsection (2) of this section if: 
(a) the contract is subject to a condition that the provision will not 
come into force unless and until the corporation is granted an 
authorization to give effect to the provision; and 
(b) the corporation applies for the grant of such an authorization 
within 14 days after the contract is made; 
but nothing in this subsection prevents the giving effect by a corpora­
tion to such a provision from constituting a contravention of sub­
section (2). 
Contracts, arrangements or understandings in relation to prices 
45A. (1) Without limiting the generality of section 45, a provision 
of a contract, arrangement or understanding, or of a proposed con­
tract, arrangement or understanding, shall be deemed for the purposes 
of that section to have the purpose, or to have or to be likely to have 
the effect, of substantially lessening competition if the provision has 
the purpose, or has or is likely to have the effect, as the case may be, 
of fixing, controlling or maintaining, or providing for the fixing, con­
trolling or maintaining of, the price for, or a discount, allowance, 
rebate or credit in relation to, goods or services supplied or acquired 
or to be supplied or acquired by the parties to the contract, arrange­
ment or understanding or the proposed parties to the proposed con­
tract, arrangement or understanding, or by any of them, or by any 
bodies corporate that are related to any of them, in competition with 
each other. s.45A. IP/~/l/~lJS/()/l 
Page 49 
Trade Practices Act 1974 
(2) Subsection (1) does not apply to a provision of a contract or 
arrangement made or of an understanding arrived at, or of a proposed 
contract of arrangement to be made or of a proposed understanding to 
be arrived at, for the purposes of a joint venture to the extent that the 
provision relates or would relate to: 
(a) the joint supply by the parties to the joint venture, or the 
supply by the parties to the joint venture in proportion to their 
respective interests in the joint venture, of goods jointly pro­
duced by those parties in pursuance of the joint venture; 
(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 
(c) in the case of a joint venture carried on by a body corporate 
as mentioned in subparagraph 41 (a) (ii): 
(i) the supply by that body corporate of goods produced 
by it in pursuance of the joint venture; or 
(ii) the supply by that body corporate of services in pursu­
ance of the joint venture, not being services supplied 
on behalf of the body corporate by: 
(A) a person who is the owner of shares in the capital 
of the body corporate; or 
(B) a body corporate that is related to such a person. 
(3) Subsection (1) does not apply in relation to a provision of a 
contract, arrangement or understanding, or of a proposed contract, 
arrangement or understanding, to the extent that the provision recom­
mends or provides for recommending, or would recommend or pro­
vide for recommending, the price for, or a discount, allowance, rebate 
or credit in relation to, goods or services, where the parties to the 
contract, arrangement or understanding, or the proposed parties to the 
proposed contract, arrangement, or understanding, include: 
(a) not less than 50 persons (bodies corporate that are related to 
one another being counted as a single person) who supply, in 
trade or commerce, goods or services to which the provision 
applies; or 
(b) not less than 50 persons (bodies corporate that are related to 
one another being counted as a single person) who acquire, in 
trade or commerce, goods or services to which the provision 
applies. 
(4) Subsection (1) does not apply to a provision of a contract, 
arrangement or understanding, or of a proposed contract, arrangement 
or understanding, being a provision: IPINlll AUSIO/l 
Page 50 
(a) 
(b) Trade Practices Act 1974 
s.45A. 
in relation to the price for goods or services to be collectively 
acquired, whether directly or indirectly, by parties to the 
contract, arrangement or understanding or by proposed parties 
to the proposed contract, arrangement or understanding; or 
for the joint advertising of the price for the re-supply of goods 
so acquired. 
(5) For the purposes of this Act, a provision of a contract, 
arrangement or understanding, or of a proposed contract, arrangement 
or understanding, shall not be taken not to have the purpose, or not to 
have or to be likely to have the effect, of fixing, controlling or 
maintaining, or providing for the fixing, controlling or maintaining of, 
the price for, or a discount, allowance, rebate or credit in relation to, 
goods or services by reason only of: 
(a) the form of, or of that provision of, the contract, arrangement 
or understanding or the proposed contract, arrangement or 
understanding; or 
(b) any description given to, or to that provision of, the contract, 
arrangement or understanding or the proposed contract, ar­
rangement or understanding by the parties or proposed parties. 
(6) For the purposes of this Act but without limiting the generality 
of subsection (5), a provision of a contract, arrangement or under­
standing, or of a proposed contract, arrangement or understanding, 
shall not be taken not to have the purpose, or not to have or to be 
likely to have the effect, of fixing, controlling or maintaining, or 
providing for the fixing, controlling or maintaining of, the price for, or 
a discount, allowance, rebate or credit in relation to, goods or services 
by reason only that the provision recommends, or provides for the 
recommending of, such a price, discount, allowance, rebate or credit if 
in fact the provision has that purpose or has or is likely to have that 
effect. 
(7) For the purposes of the preceding provisions of this section but 
without limiting the generality of those provisions, a provision of a 
contract, arrangement or understanding, or of a proposed contract, 
arrangement or understanding, shall be deemed to have the purpose, 
or to have or to be likely to have the effect, of fixing, controlling or 
maintaining, or providing for the fixing, controlling or maintaining of, 
the price for, or a discount, allowance, rebate or credit in relation to, 
goods supplied as mentioned in subsection (1) if the provision has the 
purpose, or has or is likely to have the effect, of fixing, controlling or 
maintaining, or providing for the fixing, controlling or maintaining of, 
such a price, discount, allowance, rebate or credit in relation to a 
re-supply of the goods by persons to whom the goods are or would be 
supplied by the parties to the contract, arrangement or understanding s.45B. IP/N/l! AUS/O/1 
Page 51 
Trade Practices Act 1974 
or the proposed parties to the proposed contract, arrangement or 
understanding, or by any of them, or by any bodies corporate that are 
related to any of them. 
(8) The reference in subsection (1) to the supply or acquisition of 
goods or services by persons in competition with each other includes a 
reference to the supply or acquisition of goods or services by persons 
who, but for a 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 each other in relation to 
the supply or acquisition of the goods or services. 
Covenants affecting competition 
45B. (1) A covenant, whether the covenant was given before or 
after the commencement of this section, is unenforceable in so far as it 
confers rights or benefits or imposes duties or obligations on a cor­
poration or on a person associated with a corporation if the covenant 
has, or is likely to have, the effect of substantially lessening competi­
tion in any market in which the corporation or any person associated 
with the corporation supplies or acquires, or is likely to supply or 
acquire, goods or services or would, but for the covenant, supply or 
acquire, or be likely to supply or acquire, goods or services. 
(2) A corporation or a person associated with a corporation shall 
not: 
(a) require the giving of a covenant, or give a covenant, if the 
proposed covenant has the purpose, or would have or be likely 
to have the effect, of substantially lessening competition in any 
market in which: 
(i) the corporation, or any person associated with the 
corporation by virtue of paragraph (7) (b), supplies or 
acquires, is likely to supply or acquire, or would, but 
for the covenant, supply or acquire, or be likely to 
supply or acquire, goods or services; or 
(ii) any person associated with the corporation by virtue of 
the operation of paragraph (7) (a) supplies or acquires, 
is likely to supply or acquire, or would, but for the 
covenant, supply or acquire, or be likely to supply or 
acquire, goods or services, being a supply or acquisi­
tion in relation to which that person is, or would be, 
under an obligation to act in accordance with direc­
tions, instructions or wishes of the corporation; 
(b) threaten to engage in particular conduct if a person who, but 
for subsection (1), would be bound by a covenant does not 
comply with the terms of the covenant; or IP/N/l/AUS/O/! 
Page 52 
Trade Practices Act 1974 
s.45B. 
(c) engage in particular conduct by reason that a person who, but 
for subsection (1), would be bound by a covenant has failed to 
comply, or proposes or threatens to fail to comply, with the 
terms of the covenant. 
(3) Where a person: 
(a) issues an invitation to another person to enter into a contract 
containing a covenant; 
(b) makes an offer to another person to enter into a contract 
containing a covenant; or 
(c) makes it known that the person will not enter into a contract 
of a particular kind unless the contract contains a covenant of 
a particular kind or in particular terms; 
the first-mentioned person shall, by issuing that invitation, making that 
offer or ~aking that fact known, be deemed to require the giving of 
the covenant. 
(4) . For the purposes of this section, a covenant or proposed 
covenant shall be deemed to have, or to be likely to have, the effect of 
substantially lessening competition in a market if the covenant or 
proposed covenant, as the case may be, would have, or be likely to 
have, that effect when taken together with the effect or likely effect on 
competition in that market of any other covenant or proposed cov­
enant to the benefit of which: 
(a) a corporation that, or person who, is or would be, or but for 
subsection (1) would be, entitled to the benefit of the first­
mentioned covenant or proposed covenant; or 
(b) a person associated with the corporation referred to in para­
graph (a) or a corporation associated with the person referred 
to in that paragraph; 
is or would be, or but for subsection (1) would be, entitled. 
(5) The requiring of the giving of, or the giving of, a covenant does 
not constitute a contravention of this section by reason that giving 
effect to the covenant would, or would but for the operation of 
subsection 88 (8) or section 93, constitute a contravention of section 47 
and this section does not apply to or in relation to engaging in conduct 
in relation to a covenant by way of: 
(a) conduct that contravenes, or would but for the operation of 
subsection 88 (8) or s.ection 93 contravene, section 47; or 
(b) doing an act by reason of a breach or threatened breach of a 
condition referred to in subsection 47 (2), (4), (6) or (8), being 
an act done by a person at a time when: s.45B. IP/N/l/AUS/O/l 
Page 53 
Trade Practices Act 1974 
(i) an authorization under subsection 88 (8) is in force in 
relation to conduct engaged in by that person on that 
condition; or 
(ii) by reason of subsection 93 (7) conduct engaged in by 
that person on that condition is not to be taken to have 
the effect of substantially lessening competition within 
the meaning of section 47. 
(6) This section does not apply to or in relation to a covenant or 
proposed covenant where the only persons who are or would be 
respectively bound by, or entitled to the benefit of, the covenant or 
proposed covenant are persons who are associated with each other or 
are bodies corporate that are related to each other. 
(7) For the purposes of this section, section 45C and subparagraph 
87 (3) (a) (ii), a person and a corporation shall be taken to be 
associated with each other in relation to a covenant or proposed 
covenant if, and only if: 
(a) the person is under an obligation (otherwise than in pursuance 
of the covenant or proposed covenant), whether formal or 
informal, to act in accordance with directions, instructions or 
wishes of the corporation in relation to the covenant or pro­
posed covenant; or 
(b) the person is a body corporate in relation to which the 
corporation is in the position mentioned in subparagraph 4A 
(1) (a) (ii). 
(8) The requiring by a person of the giving of, or the giving by a 
person of, a covenant in relation to which subsection 88 (5) applies is 
not a contravention of subsection (2) of this section if: 
(a) the covenant is subject to a condition that the covenant will 
not come into force unless and until the person is granted an 
authorization to require the giving of, or to give, the covenant; 
and 
(b) the person applies for the grant of such an authorization 
within 14 days after the covenant is given; 
but nothing in this subsection affects the application of paragraph (2) 
(b) or (c) in relation to the covenant. 
(9) This section does not apply to or in relation to a covenant or 
proposed covenan t if: 
(a) the sole or principal purpose for which the covenant was or is 
required to be given was or is to prevent the relevant land 
from being used otherwise than for residential purposes; IP/N/l/AUS/O/l 
Page 54 
Trade Practices Act 1974 
s.45C. 
(b) the person who required or requires the covenant to be given 
was or is a religious, charitable or public benevolent institution 
or a trustee for such an institution and the covenant was or is 
required to be given for or in accordance with the purposes or 
objects of that institution; or 
(c) the covenant was or is required to be given in pursuance of a 
legally enforceable requirement made by, or by a trustee for, a 
religious, charitable or public benevolent institution, being a 
requirement made for or in accordance with the purposes' or 
objects of that institution. 
Covenants in relation to prices 
45C. (1) In the application of subsection 45B (1) in relation to a 
covenant that has, or is likely to have, the effect of fixing, controlling 
or maintaining, or providing for the fixing, controlling or n1aintaining 
of, the price for, or a discount, allowance, rebate or credit in relation 
to, goods or services supplied or acquired by the persons who are, or 
but for that subsection would be, bound by or entitled to the benefit of 
the covenant, or by any of them, or by any persons associated with any 
of them, in competition with each other, that subsection has effect as if 
the words "if the covenant has, or is likely to have, the effect of 
substantially lessening competition in any market in which the cor­
poration or any person associated with the corporation supplies or 
acquires, or is likely to supply or acquire, goods or services or would, 
but for the covenant, supply or acquire, or be likely to supply or 
acquire, goods or services" were omitted. 
(2) In the application of subsection 45B (2) in relation to a 
proposed covenant that has the purpose, or would have or be likely to 
have the effect, of fixing, controlling or maintaining, or providing for 
the fixing, controlling or maintaining of, the price for, or a discount, 
allowance, rebate or credit in relation to, goods or services supplied or 
acquired by the persons who would, or would but for subsection 45B 
(1), be bound by or entitled to the benefit of the proposed covenant, 
or by any of them, or by any persons associated with any of them, in 
competition with each other, paragraph 45B (2) (a) has effect as if all 
the words after the words "require the giving of a covenant, or give a 
covenant" were omitted. 
(3) For the purposes of this Act, a covenant shall not be taken not 
to have, or not to be likely to have, the effect, or a proposed covenant 
shall not be taken not to have the purpose, or not to have, or not to be 
likely to . have, the effect, of fixing, controlling or maintaining, or 
providing for the fixing, controlling or maintaining of, the price for, or 
a discount, allowance, rebate or credit in relation to, goods or services 
by reason only of: s.45C. IP/N/l! AUS/O/I 
Page 55 
Trade Practices Act 1974 
(a) the form of the covenant or proposed covenant; or 
(b) any description given to the covenant by any of the persons 
who are, or but for subsection 45B (1) would be, bound by or 
entitled to the benefit of the covenant or any description given 
to the proposed covenant by any of the persons who would, or 
would but for subsection 45B (1), be bound by or entitled to 
the benefit of the proposed covenant. 
(4) For the purposes of the preceding provisions of this section, 
but without limiting the generality of those provisions: 
(a) a covenant shall be deemed to have, or to be likely to have, 
the effect of fixing, controlling or maintaining, or providing for 
the fixing, controlling or maintaining of, the price for, or a 
discount, allowance, rebate or credit in relation to, goods 
supplied as mentioned in subsection (1) if the covenant has, or 
is likely to have, the effect of fixing, controlling or maintaining, 
or providing for the fixing, controlling or maintaining of, such 
a price, discount, allowance, rebate or credit in relatIon to a 
re-supply of the goods by persons to whom the goods are 
supplied by the persons who are, or but for subsection 45B (1) 
would be, bound by or entitled to the benefit of the covenant, 
or by any of them, or by any persons associated with any of 
them; and 
(b) a proposed covenant shall be deemed to have the purpose, or 
to have, or to be likely to have, the effect, of fixing, controlling 
or maintaining, or providing for the fixing, controlling or 
maintaining of, the price for, or a discount, allowance, rebate 
or credit in relation to, goods supplied as mentioned in sub­
section (2) if the proposed covenant has the purpose, or would 
have or be likely to have the effect, as the case may be, of 
fixing, controlling or maintaining, or providing for the fixing, 
controlling or maintaining of, such a price, discount, allow­
ance, rebate or credit in relation to a re-supply of the goods by 
persons to whom the goods are supplied by the persons who 
would, or would but for subsection 45B (1), be bound by or 
entitled to the benefit of the proposed covenant, or by any of 
them, or by any persons associated with any of them. 
(5) The reference in subsection (1) to the supply or acquisition of 
goods or services by persons in competition with each other includes a 
reference to the supply or acquisition of goods or services by persons 
who, but for a 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 each other in relation to 
the supply or acquisition of the goods or services. IP/N/l! AUS/Oll 
Page 56 
Trade Practices Act 1974 
s.45D. 
Boycotts 
45D. (1) Subject to subsection (2), a person must not, in concert 
with a second person, engage in conduct that hinders or prevents the 
supply of goods or services by a third person to a fourth person, or the 
acquisition of goods or services by a third person from a fourth 
person, if: 
(a) the third person is, and the fourth person is not, a corporation 
and: 
(i) the conduct would have or be likely to have the effect 
of causing a substantial lessening of competition in any 
market in which the third person supplies or acquires 
goods or services; and 
(ii) the conduct is engaged in for the purpose, and would 
have or be likely to have the effect, of causing a 
substantial lessening of competition in any market in 
which the fourth person acquires goods or services; or 
(b) the fourth person is a corporation and the conduct is engaged 
in for the purpose, and would have or be likely to have the 
effect, of causing a substantial lessening of competition in any 
market in which the fourth person supplies or acquires goods 
or services. 
(2) In determining whether a contravention of subsection (1) has 
been committed, boycott conduct within the meaning of Division 7 of 
Part VI of the Industrial Relations Act 1988 is to be disregarded. 
(3) This section does not affect the operation of any other 
provision of this Part. 
Misuse of market power 
46. (1) A corporation that has a substantial degree of power in a 
market shall not take advantage of that power for the purpose of: 
(a) eliminating or substantially damaging a competitor of the cor­
poration or of a body corporate that is related to the corpora­
tion in that or any other market; 
(b) preventing the entry of a person into that or any other market; 
or 
(c) deterring or preventing a person from engaging in competitive 
conduct in that or any other market. 
(lA) For the purposes of subsection (1): 
(a) the reference in paragraph (1) (a) to a competitor includes a 
reference to competitors generally, or to a particular class or 
classes of competitors; and s.46. IP/N/l/AUS/O/1 
Page 57 
Trade Practices Act 1974 
(b) the reference in paragraphs (1) (b) and (c) to a person in­
cludes a reference to persons generally, or to a particular class 
or classes of persons. 
(2) If: 
(a) a body corporate that is related to a corporation has, or 2 or 
more bodies corporate each of which is related to the one 
corporation together have, a substantial degree of power in a 
market; or 
(b) a corporation and a body corporate that is, or a corporation 
and 2 or more bodies corporate each of which is, related to 
that corporation, together have a substantial degree of power 
in a market; 
the corporation shall be taken for the purposes of this section to have 
a substantial degree of power in that market. 
(3) In determining for the purposes of this section the degree of 
power that a body corporate or bodies corporate has or have in a 
market, the Court shall have regard to the extent to which the conduct 
of the body corporate or of any of those bodies corporate in that 
market is constrained by the conduct of: 
(a) competitors, or potential competitors, of the body corporate or 
of any of those bodies corporate in that market; or 
(b) persons to whom or from whom the body corporate or any of 
those bodies corporate supplies or acquires goods or services 
in that market. 
(4) In this section: 
(a) a reference to power is a reference to market power; 
(b) a reference to a market is a reference to a market for goods or 
services; and 
(c) a reference to power in relation to, or to conduct in, a market 
is a reference to power, or to conduct, in that market either as 
a supplier or as an acquirer of goods or services in that 
market. 
(5) Without extending by implication the meaning of subsection 
(1), a corporation shall not be taken to contravene that subsection by 
reason only that it acquires plant or equipment. 
(6) This section does not prevent a corporation from engaging in 
conduct that does not constitute a contravention of any of the follow­
ing sections, namely, sections 45, 45B, 47 and 50, by reason that an 
authorization is in force or by reason of the operation of section 93. 
(7) Without in any way limiting the manner in which the purpose 
of a person may be established for the purposes of any other provision 
of this Act, a corporation may be taken to have taken advantage of its IPINIl! AUS/O/l 
Page 58 
Trade Practices Act 1974 
s.46A. 
power for a purpose referred to in subsection (1) notwithstanding that, 
after all the evidence has been considered, the existence of that 
purpose is ascertainable only by inference from the conduct of the 
corporation or of any other person or from other relevant 
circumstances. 
Misuse of market power -corporation with substantial degree of power 
in trans-Tasman market 
46A. (1) In this section: 
"conduct", in relation to a market, means conduct in the market either 
as a supplier or acquirer of goods or services in the market; 
"impact market" means a market in Australia that is not a market 
exclusively for services; 
"market power", in relation to a market, means market power in the 
market e,ither as a supplier or acquirer of goods or services in the 
market; 
"trans-Tasman market" means a market in Australia, New Zealand or 
Australia and New Zealand for goods or services. 
(2) A corporation that has a substantial degree of market power in 
a trans-Tasman market must not take advantage of that power for the 
purpose of: 
(a) eliminating or substantially damaging a competitor of the cor­
poration, or of a body corporate that is related to the corpora­
tion, in an impact market; or 
(b) preventing the entry of a person into an impact market; or 
(c) deterring or preventing a person from engaging in competitive 
conduct in an impact market. 
(2A) For the purposes of subsection (2): 
(a) the reference in paragraph (2) (a) to a competitor includes a 
reference to competitors generally, or to a particular class or 
classes of competitors; and 
(b) the reference in paragraphs (2) (b) and Cc) to a person in­
cludes a reference to persons generally, or to a particular class 
or classes of persons. 
(3) If: 
(a) a body corporate that is related to a corporation has, or 2 or 
more bodies corporate each of which is related to the one 
corporation together have, a substantial degree of market 
power in a trans-Tasman market; or s.46A. IP/N/l/AUS/O/! 
Page 59 
Trade Practices Act 1974 
(b) a corporation and a body corporate that is, or a corporation 
and 2 or more bodies corporate each of which is, related to 
the corporation, together have a substantial degree of market 
power in a trans-Tasman market; 
the corporation is taken, for the purposes of this section, to have a 
substantial degree of market power in the trans-Tasman market. 
(4) In determining for the purposes of this section the degree of 
market power that a body corporate or bodies corporate has or have 
in a trans-Tasman market, the Federal Court is to have regard to the 
extent to which the conduct of the body corporate or of any of those 
bodies corporate, in the trans-Tasman market is constrained by the 
conduct of: 
(a) competitors, or potential competitors, of the body corporate, 
or of any of those bodies corporate, in the trans-Tasman 
market; or 
(b) persons to whom or from whom the body corporate, or any of 
those bodies corporate, supplies or acquires goods or services 
in the trans-Tasman market. 
(5) Without extending by implication the meaning of subsection 
(2), a corporation is not taken to contravene that subsection merely 
because it acquires plant or equipment. 
(6) This section does not prevent a corporation from engaging in 
conduct that does not constitute a contravention of any of the follow­
ing sections, namely, sections 45, 45B, 47 and 50, because an 
authorisation is in force or because of the operation of section 93. 
(7) Without limiting the manner in which the purpose of a person 
may be established for the purposes of any other provision of this Act, 
a corporation may be taken to have taken advantage of its market 
power for a purpose referred to in subsection (2) even though, after all 
the evidence has been considered, the existence of that purpose is 
ascertainable only by inference from the conduct of the corporation or 
of any other person or from other relevant circumstances. 
(8) It is the intention of the Parliament that this section, and the 
provisions of Parts VI and XII so far as they relate to a contravention 
of this section, should apply to New Zealand and New Zealand Crown 
corporations to the same extent, and in the same way, as they respec­
tively apply under section 2A to the Commonwealth and authorities of 
the Commonwealth. 
(9) Subsection (8) has effect despite section 9 of the Foreign States 
Immunities Act 1985. IPINIl! AUSIO/I 
Page 60 
Trade Practices Act 1974 
s.46B. 
No immunity from jurisdiction in relation to certain New Zealand laws 
46B. (1) It is hereby declared, for the avoidance of doubt, that the 
Commonwealth, the States, the Australian Capital Territory and the 
Northern Territory, and their authorities, are not immune, and may 
not claim immunity, from the jurisdiction of the courts of Australia 
and New Zealand in relation to matters arising under sections 36A, 
98H and 99A of the Commerce Act 1986 of New Zealand. 
(2) This section applies in and outside Australia. 
Exclusive dealing 
47. (1) Subject to this section, a corporation shall not, in trade or 
commerce, engage in the practice of exclusive dealing. 
(2) A corporation engages in the practice of exclusive dealing if 
the corporation: 
(a) supplies, or offers to supply, goods or services; 
(b) supplies, or offers to supply, goods or services at a particular 
price; or 
(c) gives or allows, or offers to give or allow, a discount, allow­
ance, rebate or credit in relation to the supply or proposed 
supply of goods or services by the corporation; 
on the condition that the person to whom the corporation supplies, or 
offers or proposes to supply, the goods or services or, if that person is 
a body corporate, a body corporate related to that body corporate: 
(d) will not, or will not except to a limited extent, acquire goods 
or services, or goods or services of a particular kind or 
description, directly or indirectly from a competitor of the 
corporation or from a competitor of a body corporate related 
to the corporation; 
(e) will not, or will not except to a limited extent, re-supply goods, 
or goods of a particular kind or description, acquired directly 
or indirectly from a competitor of the corporation or from a 
competitor of a body corporate related to the corporation; or 
(f) in the case where the corporation supplies or would supply 
goods, will not re-supply the goods to any person, or will not, 
or will not except to a limited extent, re-supply the goods: 
(i) to particular persons or classes of persons or to persons 
other than particular persons or classes of persons; or 
(ii) in particular places or classes of places or in places 
other than particular places or classes of places. 
(3) A corporation also engages in the practice of exclusive dealing 
if the corporation refuses: 
(a) to supply goods or services to a person; s.47. IPINIl! AUSIO/l 
Page 61 
Trade Practices Act 1974 
(b) to supply goods or services to a person at a particular price; or 
( c) to give or allow a discount, allowance, rebate or credit in 
relation to the supply or proposed supply of goods or services 
to a person; 
for the reason that the person or, if the person is a body corporate, a 
body corporate related to that body corporate: 
(d) has acquired, or has not agreed not to acquire, goods or 
services, or goods or services of a particular kind or descrip­
tion, directly or indirectly from a competitor of the corpora­
tion or from a competitor of a body corporate related to the 
corporation; 
(e) has re-supplied, or has not agreed not to re-supply, goods, or 
goods of a particular kind or description, acquired directly or 
indirectly from a competitor of the corporation or from a 
competitor of a body corporate related to the corporation; or 
(f) in the case of a refusal in relation to the supply or proposed 
supply of goods, has re-supplied, or has not agreed not to 
re-supply, goods, or goods of a particular kind or description, 
acquired from the corporation to any person, or has 
re-supplied, or has not agreed not to re-supply, goods, or 
goods of a particular kind or description, acquired from the 
corporation: 
(i) to particular persons or classes of persons or to persons 
other than particular persons or classes of persons; or 
(ii) in particular places or classes of places or in places 
other than particular places or classes of places. 
(4) A corporation also engages in the practice of exclusive dealing 
if the corporation: 
(a) acquires, or offers to acquire, goods or services; or 
(b) acquires, or offers to acquire, goods or services at a particular 
price; 
on the condition that the person from whom the corporation acquires 
or offers to acquire the goods or services or, if that person is a body 
corporate, a body corporate related to that body corporate will not 
supply goods or services, or goods or services of a particular kind or 
description, to any person, or will not, or will not except to a limited 
extent, supply goods or services, or goods or services of a particular 
kind or description: 
(c) to particular persons or classes of persons or to persons other 
than particular persons 'or classes of persons; or 
( d) in particular places or classes of places or in places other than 
particular places or classes of places. IP/N/l! AUS/O/I 
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Trade Practices Act 1974 
s.47. 
(5) A corporation also engages in the practice of exclusive dealing 
if the corporation refuses: 
(a) to acquire goods or services from a person; or 
(b) to acquire goods or services at a particular price from a 
person; 
for the reason that the person or, if the person is a body corporate, a 
body corporate related to that body corporate has supplied, or has not 
agreed not to supply, goods or services, or goods or services of a 
particular kind or description: 
(c) to particular persons or classes of persons or to persons other 
than particular persons or classes of persons; or 
(d) in particular places or classes of places or in places other than 
particular places or classes of places. 
(6) A· corporation also engages in the practice of exclusive dealing 
if the corporation: 
(a) supplies, or offers to supply, goods or services; 
(b) supplies, or offers to supply, goods or services at a particular 
price; or 
(c) gives or allows, or offers to give or allow, a discount, allow­
ance, rebate or credit in relation to the supply or proposed 
supply of goods or services by the corporation; 
on the condition that the person to whom the corporation supplies or 
offers or proposes to supply the goods or services or, if that person is a 
body corporate, a body corporate related to that body corporate will 
acquire goods or services of a particular kind or description directly or 
indirectly from another person. 
(7) A corporation also engages in the practice of exclusive dealing 
if the corporation refuses: 
(a) to supply goods or services to a person; 
(b) to supply goods or services at a particular price to a person; or 
(c) to give or allow a discount, allowance, rebate or credit in 
relation to the supply of goods or services to a person; 
for the reason that the person or, if the person is a body corporate, a 
body corporate related to that body corporate has not acquired, or has 
not agreed to acquire, goods or services of a particular kind or 
description directly or indirectly from another person . 
. (8) A corporation also engages in the practice of exclusive dealing 
if the corporation grants or renews, or makes it known that it will not 
exercise a power or right to terminate, a lease of, or a licence in 
respect of, land or a building or part of a building on the condition 
that another party to the lease or licence or, if that other party is a 
body corporate, a body corporate related to that body corporate: s.47. IP/Nll! AUSIO/l 
Page 63 
Trade Practices Act 1974 
(a) will not, or will not except to a limited extent: 
(i) acquire goods or services, or goods or services of a 
particular kind or description, directly or indirectly 
from a competitor of the corporation or from a com­
petitor of a body corporate related to the corporation; 
or 
(ii) re-supply goods, or goods of a particular kind or de­
scription, acquired directly or indirectly from a com­
petitor of the corporation or from a competitor of a 
body corporate related to the corporation; 
(b) will not supply goods or services, or goods or services of a 
particular kind or description, to any person, or will not, or 
will not except to a limited extent, supply goods or services, or 
goods or services of a particular kind or description: 
(i) to particular persons or classes of persons or to persons 
other than particular persons or classes of persons; or 
(ii) in particular places or classes of places or in places 
other than particular places or classes of places; or 
(c) will acquire goods or services of a particular kind or descrip­
tion directly or indirectly from another person not being a 
body corporate related to the corporation. 
(9) A corporation also engages in the practice of exclusive dealing 
if the corporation refuses to grant or renew, or exercises a power or 
right to terminate, a lease of, or a licence in respect of, land or a 
building or part of a building for the reason that another party to the 
lease or licence or, if that other party is a body corporate, a body 
corporate related to that body corporate: 
(a) has acquired, or has not agreed not to acquire, goods or 
services, or goods or services of a particular kind or descrip­
tion, directly or indirectly from a competitor of the corpora­
tion or from a competitor of a body corporate related to the 
corporation; 
(b) has re-supplied, or has not agreed not to re-supply, goods, or 
goods of a particular kind or description, acquired directly or 
indirectly from a competitor of the corporation or from a 
competitor of a body corporate related to the corporation; 
(c) has supplied goods or services, or goods or services of a 
particular kind or description: 
(i) to particular persons or classes of persons or to persons 
other than particular persons or classes of persons; or 
(ii) in particular 'places or classes of places or in places 
other than particular places or classes of places; or IP/N/l! AUS/O/l 
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Trade Practices Act 1974 
s.47. 
(d) has not acquired, or has not agreed to acquire, goods or 
services of a particular kind or description directly or in­
directly from another person not being a body corporate 
related to the corporation. 
(10) Subsection (1) does not apply to the practice of exclusive 
dealing constituted by a corporation engaging in conduct of a kind 
referred to in subsection (2), (3), (4) or (5) or paragraph (8) (a) or (b) 
or (9) (a), (b) or (c) unless: 
(a) the engaging by the corporation in that conduct has the pur­
pose, or has or is likely to have the effect, of substantially 
lessening competition; or 
(b) the engaging by the corporation in that conduct, and the 
engaging by the corporation, or by a body corporate related to 
the corporation, in other conduct of the same or a similar 
kind, together have or are likely to have the effect of substan­
tially lessening competition. 
(11) Subsections (8) and (9) do not apply with respect to: 
(a) conduct engaged in by, or by a trustee for, a religious, chari­
table or public benevolent institution, being conduct engaged 
in for or in accordance with the purposes or objects of that 
institution; or 
(b) conduct engaged in in pursuance of a legally enforceable 
requirement made by, or by a trustee for, a religious, chari­
table or public benevolent institution, being a requirement 
made for or in accordance with the purposes or objects of that 
institution. 
(12) Subsection (1) does not apply with respect to any conduct 
engaged in by a body corporate by way of restricting dealings by 
another body corporate if those bodies corporate are related to each 
other. 
(13) In this section: 
(a) a reference to a condition shall be read as a reference to any 
condition, whether direct or indirect and whether having legal 
or equitable force or not, and includes a reference to a 
condition the existence or nature of which is ascertainable only 
by inference from the cond uct of persons or from other 
relevant circumstances; 
(b) a reference to competition, in relation to conduct to which a 
provision of this section other than subsection (8) or (9) 
applies, shall be read as a reference to competition in any 
market in which: 
(i) the corporation engaging in the conduct or any body 
corporate related to that corporation; or s.48. IP/N/1/ AUS/O/I 
Page 65 
Trade Practices Act 1974 
(ii) any person whose business dealings are restricted, 
limited or otherwise circumscribed by the conduct or, 
if that person is a body corporate, any body corporate 
related to that body corporate; 
supplies or acquires, or is likely to supply or acquire, goods or 
services or would, but for the conduct, supply or acquire, or 
be likely to supply or acquire, goods or services; and 
(c) a reference to competition, in relation to conduct to which 
subsection (8) or (9) applies, shall be read as a reference to 
competition in any market in which the corporation engaging 
in the conduct or any other corporation the business dealings 
of which are restricted, limited or otherwise circumscribed by 
the conduct, or any body corporate related to either of those 
corporations, supplies or acquires, or is likely to supply or 
acquire, goods or services or would, but for the conduct, 
supply or acquire, or be likely to supply or acquire, goods or 
services. 
Resale price maintenance 
48. A corporation or other person shall not engage in the practice 
of resale price maintenance. 
Price discrimination 
49. (1) A corporation shall not, in trade or commerce, discrimi­
nate between purchasers of goods of like grade and quality in relation 
to: 
(a) the prices charged for the goods; 
(b) any discounts, allowances, rebates or credits given or allowed 
in relation to the supply of the goods; 
(c) the provision of services in respect of the goods; or 
(d) the making of payments for services provided in respect of the 
goods; 
if the discrimination is of such magnitude or is of such a recurring or 
systematic character that it has or is likely to have the effect of 
substantially lessening competition in a market for goods, being a 
market in which the corporation supplies, or those persons supply, 
goods. 
(2) Subsection (1) does not apply in relation to a discrimination if: 
(a) the discrimination makes only reasonable allowance for differ­
ences in the cost or likely cost of manufacture, distribution, 
sale or delivery resulting from the differing places to which, 
methods by which or quantities in which the goods are sup­
plied to the purchasers; or IP/N/l! AUS/Oll 
Page 66 
Trade Practices Act 1974 
s.50. 
(b) the discrimination is constituted by the doing of an act in good 
faith to meet a price or benefit offered by a competitor of the 
supplier. 
(3) In any proceeding for a contravention of subsection (1), the 
onus of establishing that that subsection does not apply in relation to a 
discrimination by reason of subsection (2) is on the party asserting that 
subsection (1) does not so apply. 
(4) A person shall not, in trade or commerce: 
(a) knowingly induce or attempt to induce a corporation to dis­
criminate in a manner prohibited by subsection (1); or 
(b) enter into any transaction that to his knowledge would result 
in his receiving the benefit of a discrimination that is prohib­
ited by that subsection. 
(5) In any proceeding against a person for a contravention of 
subsection (4), it is a defence if that person establishes that he 
reasonably believed that, by reason of subsection (2), the discrimina­
tion concerned was not prohibited by subsection (1). 
Prohibition of acquisitions that would result in a substantial lessening 
of competition 
50. (1) A corporation must not directly or indirectly: 
(a) acquire shares in the capital of a body corporate; or 
(b) acquire any assets of a person; 
if the acquisition would have the effect, or be likely to have the effect, 
of substantially lessening competition in a market. 
(2) A person must not directly or indirectly: 
(a) acquire shares in the capital of a corporation; or 
(b) acquire any assets of a corporation; 
if the acquisition would have the effect, or be likely to have the effect, 
of substantially lessening competition in a market. 
(3) Without limiting the matters that may be taken into account 
for the purposes of subsections (1) and (2) in determining whether the 
acquisition would have the effect, or be likely to have the effect, of 
substantially lessening competition in a market, the following matters 
must be taken into account: 
(a) the actual and potential level of import competition in the 
market; 
(b) the height of barriers to entry to the market; 
(c) thelevel of concentration in the market; 
(d) the degree of countervailing power in the market; s.50. IPINIl! AUSIO/l 
Page 67 
Trade Practices Act 1974 
(e) the likelihood that the acquisition would result in the acquirer 
being able to significantly and sustainably increase prices or 
profit margins; 
(f) the extent to which substitutes are available in the market or 
are likely to be available in the market; 
(g) the dynamic characteristics of the market, including growth, 
innovation and product differentiation; 
(h) the likelihood that the acquisition would result in the removal 
from the market of a vigorous and effective competitor; 
(i) the nature and extent of vertical integration in the market. 
(4) Where: 
(a) a person has entered into a contract to acquire shares in the 
capital of a body corporate or assets of a person; 
(b) the contract is subject to a condition that the provisions of the 
contract relating to the acquisition will not come into force 
unless and until the person has been granted an authorization 
to acquire the shares or assets; and 
(c) the person applied for the grant of such an authorization 
before the expiration of 14 days after the contract was entered 
into; 
the acquisition of the shares or assets shall not be regarded for the 
purposes of this Act as having taken place in pursuance of the contract 
before: 
(d) the application for the authorization is disposed of; or 
(e) the con tract ceases to be subject to the condi tion; 
whichever first happens. 
(5) For the purposes of subsection (4), an application for an 
authorization shall be taken to be disposed of: 
(a) in a case to which paragraph (b) of this subsection does not 
apply-at the expiration of 14 days after the period in which 
an application may be made to the Tribunal for a review of 
the determination by the Commission of the application for 
the authorization; or 
Cb) if an application is made to the Tribunal for a review of the 
determination by the Commission of the application for the 
authorization-at the expiration of 14 days after the date of the 
making by the Tribunal of a determination on the review. 
(6) In this section: 
"market" means a substantial market for goods or services in 
Australia, in a State or in a Territory. IP/N/l! AUS/Oll 
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Trade Practices Act 1974 
Acquisitions that occur outside Australia s.SOA. 
SOA. (1) Where a person acquires, outside Australia, otherwise 
than by reason of the application of paragraph (8) (b), a controlling 
interest (the "first controlling interest") in any body corporate and, by 
reason, but not necessarily by reason only, of the application of 
paragraph (8) (b) in relation to the first controlling interest, obtains a 
controlling interest (the "second controlling interest") in a corporation 
or each of 2 or more corporations, the Tribunal may, on the applica­
tion of the Minister, the Commission or any other person, if the 
Tribunal is satisfied that: 
(a) the person's obtaining the second controlling interest would 
have the effect, or be likely to have the effect, of substantially 
lessening competition in a market; and 
(b) the person's obtaining the second controlling interest would 
not, in all the circumstances, result, or be likely to result, in 
such a benefit to the public that the obtaining should be 
disregarded for the purposes of this section; 
make a declaration accordingly. 
(lA) Without limiting the matters that may be taken into account 
in determining whether the obtaining of the second controlling interest 
would have the effect, or be likely to have the effect, of substantially 
lessening competition in a market, the matters mentioned in subsection 
50 (3) must be taken into account for that purpose. 
(lB) In determining whether the obtaining of the second control­
ling interest would result, or be likely to result, in such a benefit to the 
public that it should be disregarded for the purposes of this section: 
(a) the Tribunal must regard the following as benefits to the 
public (in addition to any other benefits to the public that may 
exist apart from this paragraph): 
(i) a significant increase in the real value of exports; 
(ii) a significant substitution of domestic products for im­
ported goods; and 
(b) without limiting the matters that may be taken into account, 
the Tribunal must take into account all other relevant matters 
that relate to the international competitiveness of any Austra­
lian industry. 
(2) Where an application under subsection (1) is made: 
(a) the Tribunal shall give to: 
(i) each corporation in relation to which the application 
relates; and 
(ii) the Minister and the Commission; s.SOA. IP/N/lI AUS/O/l 
Page 69 
Trade Practices Act 1974 
a notice in writing stating that the application has been made; 
and 
(b) the persons referred to in paragraph (a) and, if the application 
was made by another person, that other person are entitled to 
appear, or be represented, at the proceedings following the 
application. 
(3) An application under subsection (1) may be made at any time 
within 12 months after the date of the acquisition referred to in that 
subsection in relation to which the application is made. 
(4) The Tribunal may, on the application of the Minister, the 
Commission or any other person, or of its own motion, revoke a 
declaration made under subsection (1). 
(5) The Tribunal shall state in writing its reasons for making, 
refusing to make or revoking a declaration under subsection (1). 
(6) After the end of 6 months after a declaration is made under 
subsection (1) in relation to the obtaining of a controlling interest in a 
corporation or 2 or more corporations by a person or, if the person, 
before the end of that period of 6 months, makes an application to a 
presidential member for an extension of that period, after the end of 
such further period (not exceeding 6 months) as the presidential 
member allows, the corporation or each of the corporations, as the 
case may be, shall not, while the declaration remains in force, carry on 
business in the market to which the declaration relates. 
(7) Subsection (1) does not apply in relation to an acquisition 
referred to in that subsection if section 50 applies in relation to that 
acquisition. 
(8) For the purposes of this section: 
(a) a person shall be taken to hold a controlling interest in a body 
corporate if the body corporate is, or, if the person were a 
body corporate, would be, a subsidiary of the person (other­
wise than by reason of the application of paragraph 4A (1) 
(b»; and 
(b) where a person holds a controlling interest (including a con­
trolling interest held by virtue of another application or other 
applications of this paragraph) in a body corporate and that 
body corporate: 
(i) controls the composition of the board of directors of 
another body corporate; 
(ii) is in a position to cast, or control the casting of, any 
votes that might be cast at a general meeting of another 
body corporate; or 
(iii) holds shares in the capital of another body corporate; IP/N/l! AUS/O/l 
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Trade Practices Act 1974 
s.51. 
the person shall be deemed (but not to the exclusion of any 
other person) to control the composition of that board, to be 
in a position to cast, or control the casting of, those votes or to 
hold those shares, as the case may be. 
(9) In this section: 
"market" means a substantial market for goods or services in Austra­
lia, in a State or in a Territory. 
Exceptions 
51.3 (1) In determining whether a contravention of a provision of 
this Part has been committed, regard shall not be had: 
(a) to any act or thing that is, or is of a kind, specifically 
authorized or approved by, or by regulations under, an Act 
other than an Act relating to patents, trade marks, designs or 
copyrights; 
(b) in the case of acts or things done in a State-except as 
provided by the regulations, to any act or thing that is, or is of 
a kind, specifically authorized or approved by, or by regula­
tions under, an Act passed by the Parliament of that State; or 
(c) in the case of acts or things done in a Territory-to any act or 
thing that is, or is of a kind, specifically authorized or ap­
proved by, or by regulations under, an Ordinance of that 
Territory. 
(2) In determining whether a contravention of a provision of this 
Part other than section 48 has been committed, regard shall not be 
had: 
(a) to any act done in relation to, or to the making of a contract 
or arrangement or the entering into of an understanding, or to 
any provision of a contract, arrangement or understanding, to 
the extent that the contract, arrangement or understanding, or 
the provision, relates to, the remuneration, conditions of em­
ployment' hours of work or working conditions of employees; 
(b) to any provision of a contract of service or of a contract for 
the provision of services, being a provision under which a 
person, not being a body corporate, agrees to accept restric­
tions as to the work, whether as an employee or otherwise, in 
which he may engage during, or after the termination of, the 
contract; 
(c) to any provision of a contract, arrangement or understanding, 
being a provision obliging a person to comply with or apply 
standards of dimension, design, quality or performance pre­
pared or approved by the Standards Association of Australia 
or by a prescribed association or body; s.51. IP/NIlIAUSIOI 1 
Page 71 
Trade Practices Act 1974 
(d) to any provision of a contract, arrangement or understanding 
between partners none of whom is a body corporate, being a 
provision in relation to the terms of the partnership or the 
conduct of the partnership business or in relation to competi­
tion between the partnership and a party to the contract, 
arrangement or understanding while he is, or after he ceases to 
be, a partner; 
(e) in the case of a contract for the sale of a business or of shares 
in the capital of a body corporate carrying on a business-to 
any provision of the contract that is solely for the protection of 
the purchaser in respect of the goodwill of the business; or 
(g) to any provision of a contract, arrangement or understanding, 
being a provision that relates exclusively to the export of goods 
from Australia or to the supply of services outside Australia, if 
full and accurate particulars of the provision (not including 
particulars of prices for goods or services but including par­
ticulars of any method of fixing, controlling or maintaining 
such prices) were furnished to the Commission before the 
expiration of 14 days after the date on which the contract or 
arrangement was made or the understanding was arrived at, or 
before 8 September 1976, whichever was the later. 
(2A) In determining whether a contravention of a provision of this 
Part other than section 48 has been committed, regard shall not be had 
to any acts done, otherwise than in the course of trade or commerce, 
in concert by ultimate users or consumers of goods or services against 
the suppliers of those goods or services. 
(3) A contravention of a provision of this Part other than section 
46, 46A or 48 shall not be taken to have been committed by reason of: 
(a) the imposing of, or giving effect to, a condition of: 
(i) a licence granted by the proprietor, licensee or owner 
of a patent, of a registered design, of a copyright or of 
EL rights within the meaning of the Circuit Layouts 
Act 1989, or by a person who has applied for a patent 
or for the registration of a design; or 
(ii) an assignment of a patent, of a registered design, of a 
copyright or of such EL rights, or of the right to apply 
for a patent or for the registration of a design; 
to the extent that the condition relates to: 
(Hi) the invention to which the patent or application for a 
patent relates or' articles made by the use of that 
invention; 
(iv) goods in respect of which the design is, or is proposed 
to be, registered and to which it is applied; IP/N/l! AUS/O/I 
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Trade Practices Act 1974 
s.51AA. 
(v) the work or other subject matter in which the copy­
right subsists; or 
(vi) the eligible layout in which the EL rights subsist; 
(b) the inclusion in a contract, arrangement or understanding 
authorizing the use of a certification trade mark of a provision 
in accordance with rules applicable under Part XI of the Trade 
Marks Act 1955, or the giving effect to such a provision; or 
(c) the inclusion in a contract, arrangement or understanding 
between: 
(i) the registered proprietor of a trade mark other than a 
certification trade mark; and 
(ii) a person registered as a registered user of that trade 
mark under Part IX of the Trade Marks Act 1955 or a 
person authorized by the contract to use the trade 
mark subject to his becoming registered as such a 
registered user; 
of a provision to the extent that it relates to the kinds, qualities 
or standards of goods bearing the mark that may be produced 
or supplied, or the giving effect to the provision to that extent. 
(4) This section applies in determining whether a provision of a 
contract is unenforceable by reason of subsection 45 (1), or whether a 
covenant is unenforceable by reason of subsection 45B (1), in like 
manner as it applies in determining whether a contravention of a 
provision of this Part has been committed. 
(5) In the application of subsection (2A) to section 46A, the 
reference in that subsection to trade or commerce includes trade or 
commerce within New Zealand. 
PART IVA-UNCONSCIONABLE CONDUCT 
Unconscionable conduct within the meaning of the unwritten law of the 
States and Territories 
SIAA. (I) A corporation must not, in trade or commerce, engage 
in conduct that is unconscionable within the meaning of the unwritten 
law, from time to time, of the States and Territories. 
(2) This section does not apply to conduct that is prohibited by 
section SlAB. s. SlAB. IP/N/lIAUSIO/l 
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Trade Practices Act 1974 
Unconscionable conduct 
SlAB. (1) A corporation shall not, in trade or commerce, in 
connection with the supply or possible supply of goods or services to a 
person, engage in conduct that is, in all the circumstances, uncon­
scionable. 
(2) Without in any way limiting the matters to which the Court 
may have regard for the purpose of determining whether a corporation 
has contravened subsection (1) in connection with the supply or 
possible supply of goods or services to a person (in this subsection 
referred to as the "consumer"), the Court may have regard to: 
(a) the relative strengths of the bargaining positions of the cor­
poration and the consumer; 
(b) whether, as a result of conduct engaged in by the corporation, 
the consumer was required to comply with conditions that 
were not reasonably necessary for the protection of the legiti­
mate interests of the corporation; 
(c) whether the consumer was able to understand any documents 
relating to the supply or possible supply of the goods or 
services; 
(d) whether any undue influence or pressure was exerted on, or 
any unfair tactics were used against, the consumer or a person 
acting on behalf of the consumer by the corporation or a 
person acting on behalf of the corporation in relation to the 
supply or possible supply of the goods or services; and 
(e) the amount for which, and the circumstances under which, the 
consumer could have acquired identical or equivalent goods or 
services from a person other than the corporation. 
(3) A corporation shall not be taken for the purposes of this 
section to engage in unconscionable conduct in connection with the 
supply or possible supply of goods or services to a person by reason 
only that the corporation institutes legal proceedings in relation to that 
supply or possible supply or refers a dispute or claim in relation to 
that supply or possible supply to arbitration. 
(4) For the purpose of determining whether a corporation has 
contravened subsection (1) in connection with the supply or possible 
supply of goods or services to a person: 
(a) the Court shall not have regard to any circumstances that were 
not reasonably forseeable at the time of the alleged contraven­
tion; and 
(b) the Court may have regard to conduct engaged in, or cir­
cumstances existing, before the commencement of this section. IP/N/lIAUSIOIl 
Page 74 
Trade Practices Act 1974 
s. SlA. 
(5) A reference in this section to goods or services is a reference 
to goods or services of a kind ordinarily acquired for personal, domes­
tic or household use or consumption. 
(6) A reference in this section to the supply or possible supply of 
goods does not include a reference to the supply or possible supply of 
goods for the purpose of re-supply or for the purpose of using them up 
or transforming them in trade or commerce. 
(7) Section 51A applies for the purposes of this section in the 
same way as it applies for the purposes of Division 1 of Part V. 
PART V-CONSUMER PROTECTION 
Division 1-Unfair Practices 
Interpretation 
SIA. (1) For the purposes of this Division, where a corporation 
makes a representation with respect to any future matter (including 
the doing of, or the refusing to do, any act) and the corporation does 
not have reasonable grounds for making the representation, the repre­
sentation shall be taken to be misleading. 
(2) For the purposes of the application of subsection (1) in 
relation to a proceeding concerning a representation made by a cor­
poration with respect to any future matter, the corporation shall, 
unless it adduces evidence to the contrary, be deemed not to have had 
reasonable grounds for making the representation. 
(3) Subsection (1) shall be deemed not to limit by implication the 
meaning of a reference in this Division to a misleading representation, 
a representation that is misleading in a material particular or conduct 
that is misleading or is likely or liable to mislead. 
Misleading or deceptive conduct 
52. . (1) A corporation shall not, in trade or commerce, engage in 
conduct that is misleading or deceptive or is likely to mislead or 
deceive. 
(2) Nothing in the succeeding provisions of this Division shall be 
taken as limiting by implication the generality of subsection (1). s.53. IPINIl! AUSIO/l 
Page 75 
Trade Practices Act 1974 
False or misleading representations 
53. A corporation shall not, in trade or commerce, in connexion 
with the supply or possible supply of goods or services or in connexion 
with the promotion by any means of the supply or use of goods or 
services: 
(a) falsely represent that goods are of a particular standard, qual­
ity, value, grade, composition, style or model or have had a 
particular history or particular previous use; 
(aa) falsely represent that services are of a particular standard, 
quality, value or grade; 
(b) falsely represent that goods are new; 
(bb) falsely represent that a particular person has agreed to acquire 
goods or services; 
(c) represent that goods or services have sponsorship, approval, 
performance characteristics, accessories, uses or benefits they 
do not have; 
(d) represent that the corporation has a sponsorship, approval or 
affiliation it does not have; 
(e) make a false or misleading representation with respect to the 
price of goods or services; 
(ea) make a false or misleading representation concerning the 
availability of facilities for the repair of goods or of spare parts 
for goods; 
(eb) make a false or misleading representation concerning the place 
of origin of goods; 
(f) make a false or misleading representation concerning the need 
for any goods or services; or 
(g) make a false or misleading representation concerning the 
existence, exclusion or effect of any condition, warranty, 
guarantee, right or remedy. 
False representations and other misleading or offensive conduct in 
relation to land 
53A. (1) A corporation shall not, in trade or commerce, in 
connexion with the sale or grant, or the possible sale or grant, of an 
interest in land or in connexion with the promotion by any means of 
the sale or grant of an interest in land: 
(a) represent that the corporation has a sponsorship, approval or 
affiliation it does not have; 
(b) make a false or misleading representation concerning the na­
ture of the interest in" the land, the price payable for the land, 
the location of the land, the characteristics of the land, the use IP/NIlIAUSIO/l 
Page 76 
Trade Practices Act 1974 
s.53B. 
to which the land is capable of being put or may lawfully be 
put or the existence or availability of facilities associated with 
the land; or 
(c) offer gifts, prizes or other free items with the intention of not 
providing them or of not providing them as offered. 
(2) A corporation shall not use physical force or undue harass­
ment or coercion in connection with the sale or grant, or the possible 
sale or grant, of an interest in land or the payment for an interest in 
land. 
(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. 
(3) In this section, "interest", in relation to land, means: 
(a) a legal or equitable estate or interest in the land; 
(b) a right of occupancy of the land, or of a building or part of a 
building erected on the land, arising by virtue of the holding 
of shares, or by virtue of a contract to purchase shares, in an 
incorporated company that owns the land or building; or 
(c) a right, power or privilege over, or in connexion with, the 
land. 
Misleading conduct in relation to employment 
53B. A corporation shall not, in relation to employment that is to 
be, or may be, offered by the corporation or by another person, engage 
in conduct that is liable to mislead persons seeking the employment as 
to the availability, nature, terms or conditions of, or any other matter 
relating to, the employment. 
Cash price to be stated in certain circumstances 
53C. A corporation shall not, in trade or commerce, in connection 
with the supply or possible supply of goods or services or in connec­
tion with the promotion by any means of the supply or use of goods or 
services, make a representation with respect to an amount that, if paid, 
would constitute a part of the consideration for the supply of the 
goods or services unless the corporation also specifies the cash price 
for the goods or services. 
Offering gifts and prizes 
54. A corporation shall not, in trade or commerce, in connexion 
with the supply or possible supply of goods or services or in connexion 
with the promotion by any means of the supply or use of goods or 
services, offer gifts, prizes or other free items with the intention of not 
providing them, or of not providing them as offered. S.SS. IP/N/lIAUS/O/l 
Page 77 
Trade Practices Act 1974 
Misleading conduct to which Industrial Property Convention applies 
5S. A person shall not, in trade or commerce, engage in conduct 
that is liable to mislead the public as to the nature, the manufacturing 
process, the characteristics, the suitability for their purpose or the 
quantity of any goods. 
Certain misleading conduct in relation to services 
55A. A corporation shall not, in trade or commerce, engage in 
conduct that is liable to mislead the public as to the nature, the 
characteristics, the suitability for their purpose or the quantity of any 
services. 
Bait advertising 
56. (1) A corporation shall not, in trade or commerce, advertise 
for supply at a specified price, goods or services if there are reasonable 
grounds, of which the corporation is aware or ought reasonably to be 
aware, for believing that the corporation will not be able to offer for 
supply those goods or services at that price for a period that is, and in 
quantities that are, reasonable having regard to the nature of the 
market in which the corporation carries on business and the nature of 
the advertisement. 
(2) A corporation that has, in trade or commerce, advertised goods 
or services for supply at a specified price shall offer such goods or 
services for supply at that price for a period that is, and in quantities 
that are, reasonable having regard to the nature of the market in which 
the corporation carries on business and the nature of the adver­
tisement. 
(3) In a prosecution of a corporation under Part VI in relation to a 
failure to offer goods or services to a person (in this subsection 
referred to as the "customer") in accordance with subsection (2), it is 
a defence if the corporation establishes that: 
(a) it offered to supply, or to procure another person to supply, 
goods or services of the kind advertised to the customer within 
a reasonable time, in a reasonable quantity and at the 
advertised price; or 
(b) it offered to supply immediately, or to procure another person 
to supply within a reasonable time, equivalent goods or ser­
vices to the customer in a reasonable quantity and at the price 
at which the first-mentioned goods or services were advertised; 
and, in either case, where the offer was accepted by the customer, the 
corporation has so supplied, or procured another person to supply, 
goods or services. IP/N/l! AUS/Oll 
Page 78 
Referral selling Trade Practices Act 1974 
s.57. 
57. A corporation shall not, in trade or commerce, induce a 
consumer to acquire goods or services by representing that the con­
sumer will, after the contract for the acquisition of the goods or 
services is made, receive a rebate, commission or other benefit in 
return for giving the corporation the names of prospective customers 
or otherwise assisting the corporation to supply goods or services to 
other consumers, if receipt of the rebate, commission or other benefit 
is contingent on an event occurring after that contract is made. 
Accepting payment without intending or being able to supply as 
ordered 
58. A corporation shall not, in trade or commerce, accept payment 
or other consideration for goods or services where, at the time of the 
acceptance: 
(a) the corporation intends: 
(i) not to supply the goods or services; or 
(ii) to supply goods or services materially different from 
the goods or services in respect of which the payment 
or other consideration is accepted; or 
(b) there are reasonable grounds, of which the corporation is 
aware or ought reasonably to be aware, for believing that the 
corporation will not be able to supply the goods or services 
within the period specified by the corporation or, if no period 
is specified, within a reasonable time. 
Misleading representations about certain business activities 
59. (1) A corporation shall not, in trade or commerce, make a 
representation that is false or misleading in a material particular 
concerning the profitability or risk or any other material aspect of any 
business activity that the corporation has represented as one that can 
be, or can be to a considerable extent, carried on at or from a person's 
place of residence. 
(2) Where a corporation, in trade or commerce, invites, whether 
by advertisement or otherwise, persons to engage or participate, or to 
offer or apply to engage or participate, in a business activity requiring 
the performance by the persons concerned of work, or the investment 
of moneys by the persons concerned and the performance by them of 
work associated with the investment, the corporation shall not make, 
with respect to the profitability or risk or any other material aspect of 
the bQsiness activity, a representation that is false or misleading in a 
material particular. s.60. IP/~/l/j\{]S/()/l 
Page 79 
Trade Practices Act 1974 
Harassment and coercion 
60. A corporation shall not use physical force or undue harass­
ment or coercion in connection with the supply or possible supply of 
goods or services to a consumer or the payment for goods or services 
by a consumer. 
Pyramid selling 
61. (1) A corporation contravenes this section if: 
(a) the corporation is the promoter of, or (if there are more than 
one) one of the promoters of, or is a participant in, a trading 
scheme to which this section applies; and 
(b) a person who is a participant in that trading scheme, or has 
applied or been invited to become a participant in that trading 
scheme, makes any payment to or for the benefit of the 
corporation, being a payment that he is induced to make by 
reason that the prospect is held out to him of receiving 
payments or other benefits in respect of the introduction 
(whether by himself or by another person) of other persons 
who become participants in that trading scheme. 
(2) A corporation also contravenes this section if: 
(a) the corporation is the promoter of, or (if there are more than 
one) one of the promoters of, is a participant in, or is other­
wise acting in accordance with, a trading scheme to which this 
section applies; and 
(b) the corporation, by holding out to any person the prospect of 
receiving payments or other benefits in respect of the in­
troduction (whether by himself or by another person) of other 
persons who become participants in that trading scheme, 
attempts to induce that person: 
(i) if he is already a participant in that trading scheme, to 
make any payment to or for the benefit of the pro­
moter or any of the promoters or to or for the benefit 
of a participant in that trading scheme; or 
(ii) if he is not already a participant in that trading 
scheme, to become such a participant and to make a 
payment of a kind mentioned in subparagraph (i). 
(2A) A corporation also contravenes this section if the corporation 
promotes, or takes part in the promotion of, a scheme under which: 
(a) a payment is to be made by a person who participates, or who 
has applied or been invited to participate, in the scheme to or 
for the benefit of the corporation or another person who takes 
part in the promotion of the scheme or to or for the benefit of 
another person who participates in the scheme; and IPINlll AUSIO/l 
Page 80 
Trade Practices Act 1974 
s.61. 
(b) the inducement for making the payment is the holding out to 
the person who makes or is to make the payment the prospect 
of receiving payments from other persons who may participate 
in the scheme. 
(3) For the purposes of subsection (1), (2) or (2A): 
(a) a prospect of a kind mentioned in that subsection shall be 
taken to be held out to a person whether it is held out so as to 
confer on him a legally enforceable right or not; 
(b) in determining whether an inducement or attempt to induce is 
made by holding out a prospect of a kind mentioned in that 
subsection, it is sufficient if a prospect of that kind constitutes 
or would constitute a substantial part of the inducement; and 
(c) any reference to the making of a payment to or for the benefit 
of a person shall be construed as including the making of a 
payment partly to or for the benefit of that person and partly 
to or for the benefit of one or more other persons. 
(4) For the purposes of this section, a scheme is a trading scheme 
to which this section applies if the scheme includes the following 
elements: 
(a) goods or services, or both, are to be provided by the person 
promoting the scheme (in this section referred to as the 
"promoter") or, in the case of a scheme promoted by two or 
more persons acting in concert (in this section referred to as 
the "promoters"), are to be provided by one or more of those 
persons; and 
(b) the goods or services so provided are to be supplied to or for 
other persons under transactions arranged or effected by per­
sons who participate in the scheme (each of whom is in this 
section referred to as a "participant"), being persons not all of 
whom are promoters. 
(5) For the purposes of subsection (4): 
(a) a scheme shall be taken to include the element referred to in 
paragraph (4) (b) whether a participant who is not a promoter 
acts in relation to a transaction referred to in that paragraph in 
the capacity of a servant or agent of the promoter or of one of 
the promoters or in any other capacity; 
(b) a scheme includes any arrangements made in connexion with 
the carrying on of a business, whether those arrangements are 
made or recorded wholly or partly in writing or not; and 
( c) any reference to the provision of goods or services by a person 
shall be construed as including a reference to the provision of 
goods or services under arrangements to which that person is a 
party. s.63A. IP/N/l! AUS/Oll 
Page 81 
Trade Practices Act 1974 
Unsolicited credit and debit cards 
63A. (1) A corporation shall not send a prescribed card to a 
person except: . 
(a) in pursuance of a request in writing by the person who will be 
under a liability to the person who issued the card in respect 
of the use of the card; or 
(b) in renewal or replacement of, or in substitution for: 
(i) a prescribed card of the same kind previously sent to 
the first-mentioned person in pursuance of a request in 
writing by the person who was under a liability to the 
person who issued the card previously so sent in re­
spect of the use of that card; or 
(ii) a prescribed card of the same kind previously sent to 
the first-mentioned person and used for a purpose for 
which it was intended to be used. 
(2) Subsection (1) applies only in relation to the sending of a 
prescribed card by or on behalf of the person who issued the card. 
(2A) A corporation shall not take any action that enables a person 
who has a credit card or a debit card to use the card as a debit card or 
a credit card, as the case may be, except in accordance with a request 
in writing by the person. 
(3) In this section: 
"article" includes a token, card or document; 
"credit card" means any article of a kind commonly known as a credit 
card or any similar article intended for use in obtaining cash, goods or 
services on credit, and includes any article of a kind commonly issued 
by persons carrying on business to customers or prospective customers 
of those persons for use in obtaining goods or services from those 
persons on credit; 
"debit card" means an article intended for use by a person in obtain­
ing access to an account held by the person for the purpose of 
withdrawing or depositing cash or obtaining goods or services; 
"prescribed card" means a credit card, a debit card or an article that 
may be used as a credit card and a debit card. 
Assertion of right to payment for unsolicited goods or services or for 
making entry in directory 
64. (1) A corporation shall not, in trade or commerce, assert a 
right to payment from a person for unsolicited goods unless the 
corporation has reasonable cause to believe that there is a right to 
payment. IP/N/l! AUS/O/l 
Page 82 
Trade Practices Act 1974 
s.64. 
(2A) A corporation shall not, in trade or commerce, assert a right 
to payment from a person for unsolicited services unless the corpora­
tion has reasonable cause to believe that there is a right to payment. 
(3) A corporation shall not assert a right to payment from any 
person of a charge for the making in a directory of an entry relating to 
the person or to his profession, business, trade or occupation unless 
the corporation knows or has reasonable cause to believe that the 
person has authorized the making of the entry. 
(4) A person is not liable to make any payment to a corporation, 
and is entitled to recover by action in a court of competent jurisdiction 
against a corporation any payment made by the person to the corpora­
tion, in full or part satisfaction of a charge for the making of an entry 
in a directory unless the person has authorized the making of the 
entry. 
(5) For the purposes of this section, a corporation shall be taken 
to assert a right to a payment from a person for unsolicited goods or 
services, or of a charge for the making of an entry in a directory, if the 
corporation: 
(a) makes a demand for the payment or asserts a present or 
prospective right to the payment; 
(b) threatens to bring any legal proceedings with a view to obtain­
ing the payment; 
(c) places or causes to be placed the name of the person on a list 
of defaulters or debtors, or threatens to do so, with a view to 
obtaining the payment; 
(d) invokes or causes to be invoked any other collection proce­
dure, or threatens to do so, with a view to obtaining the 
payment; or 
(e) sends any invoice or other document stating the amount of the 
payment or setting out the price of the goods or services or the 
charge for the making of the entry and not stating as promi­
nently (or more prominently) that no claim is made to the 
payment, or to payment of the price or charge, as the case may 
be. 
(6) A person shall not be taken for the purposes of this section to 
have authorized the making of an entry in a directory unless: 
(a) a document authorizing the making of the entry has been 
signed by the person or by another person authorized by him; 
(b) a copy of the document has been given to the person before 
the right to payment of a charge for the making of the entry is 
asserted; and 
(c) the document specifies: 
(i) the name of the directory; s.65. IPINIl! AUSIO/I 
Page 83 
Trade Practices Act 1974 
(ii) the name and address of the person publishing the 
directory; 
(iii) particulars of the entry; and 
(iv) the amount of the charge for the making of the entry 
or the basis on which the charge is, or is to be, 
calculated. 
(7) For the purposes of this section, an invoice or other document 
purporting to have been sent by or on behalf of a corporation shall be 
deemed to have been sent by that corporation unless the contrary is 
established. 
(9) In a proceeding against a corporation in respect of a con­
travention of this section: 
(a) in the case of a contravention constituted by asserting a right 
to payment from a person for unsolicited goods or unsolicited 
services-the burden lies on the corporation of proving that 
the corporation had reasonable cause to believe that there was 
a right to payment; or 
(b) in the case of a contravention constituted by asserting a right 
to payment from a person of a charge for the making of an 
entry in a directory-the burden lies on the corporation of 
proving that the corporation knew or had reasonable cause to 
believe that the person had authorised the making of the entry. 
(10) In this section: 
"directory" includes any publication of a similar nature to a directory 
but does not include a newspaper published in good faith as a 
newspaper at regular intervals or a publication published, or to be 
published, by or under the authority of the Australian Telecommuni­
cations Commission; 
"making", in relation to an entry in a directory, means including, or 
arranging for the inclusion of, the entry. 
Liability of recipient of unsolicited goods 
65. (1) A person to whom unsolicited goods are supplied by a 
corporation, in trade or commerce, is not liable to make any payment 
for the goods and is not liable for the loss of or damage to the goods 
other than loss or damage resulting from the doing by him of a wilful 
and unlawful act in relation to the goods during the period specified in 
subsection (4). 
(2) Subject to subsection (3), where, on or after the commencing 
date, a corporation sends, in trade or commerce, unsolicited goods to a 
person: IP/N/l! ADS/Oil 
Page 84 
Trade Practices Act 1974 
s.6SA. 
(a) neither the corporation nor any person claiming under the 
corporation is entitled after the expiration of the period speci­
fled in subsection (4) to take action for the recovery of the 
goods from the person to whom the goods were sent; and 
(b) upon the expiration of that period the goods become, by force 
of this section, the property of the person to whom the goods 
were sent freed and discharged from all liens and charges of 
any description. 
(3) Subsection (2) does not apply to or in relation to unsolicited 
goods sent to a person if: 
(a) the person has at any time during the period specified in 
subsection (4) unreasonably refused to permit the sender or 
the owner of the goods to take possession of the goods; 
(b) the sender or the owner of the goods has within that period 
taken possession of the goods; or 
(c) the goods were received by the person in circumstances in 
which the person knew, or might reasonably be expected to 
have known, that the goods were not intended for him. 
(4) The period referred to in the foregoing subsections is: 
(a) if the person who receives the unsolicited goods gives notice 
with respect to the goods to the sender in accordance with 
subsection (5): 
(i) the period of 1 month next following the day on which 
the notice is given; or 
(ii) the period of 3 months next following the day on which 
the person received the goods; 
whichever first expires; and 
(b) in any other case-the period of 3 months next following the 
day on which the person received the goods. 
(5) A notice under subsection (4) shall be in writing and shall: 
(a) state the name and address of the person who received the 
goods; 
(b) state the address at which possession may be taken of the 
goods if it is an address other than that of the person; and 
(c) contain a statement to the effect that the goods are unsolicited 
goods. 
Application of provisions of Division to prescribed information 
providers 
65A. (1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a 
prescribed publication of matter by a prescribed information provider, 
other than: s.6SA. IP/~/l/)\lJS/()/l 
Page 85 
Trade Practices Act 1974 
(a) a publication of matter in connection with: 
(i) the supply or possible supply of goods or services; 
(ii) the sale or grant, or possible sale or grant, of interests 
in land; 
(Hi) the promotion by any means of the supply or use of 
goods or services; or 
(iv) the promotion by any means of the sale or grant of 
interests in land; 
where: 
(v) the goods or services were relevant goods or services, 
or the interests in land were relevant interests in land, 
as the case may be, in relation to the prescribed in­
formation provider; or 
(vi) the publication was made on behalf of, or pursuant to 
a contract, arrangement or understanding with: 
(A) a person who supplies goods or services of that 
kind, or who sells or grants interests in land, 
being interests of that kind; or 
(B) a body corporate that is related to a body cor­
porate that supplies goods or services of that 
kind, or that sells or grants interests in land, 
being interests of that kind; or 
(b) a publication of an advertisement. 
(2) For the purposes of this section, a publication by a prescribed 
information provider is a prescribed publication if: 
(a) in any case-the publication was made by the prescribed 
information provider in the course of carrying on a business of 
providing information; or 
(b) in the case of a person who is a prescribed information 
provider by virtue of paragraph (a), (b) or (c) of the definition 
of "prescribed information provider" in subsection (3) (wheth­
er or not the person is also a prescribed information provider 
by virtue of another operation of that definition)-the publica­
tion was by way of a radio or television broadcast by the 
prescribed information provider. 
(3) In this section: 
"prescribed information provider" means a person who carries on a 
business of providing inforp1ation and, without limiting the generality 
of the foregoing, includes: 
(a) the holder of a licence granted under the Broadcasting 
Services Act 1992; and IP/N/l/AUS/O/1 
Page 86 
Trade Practices Act 1974 
s.6SB. 
(aa) a person who is the provider of a broadcasting service under a 
class licence under that Act; and 
(ab) the holder of a licence continued in force by subsection 5 (1) 
of the Broadcasting Services (Transitional Provisions and 
Consequential Amendments) Act 1992; and 
(b) the Australian Broadcasting Corporation; and 
(c) the Special Broadcasting Service Corporation; 
"relevant goods or services", in relation to a prescribed information 
provider, means goods or services of a kind supplied by the prescribed 
information provider or, where the prescribed information provider is 
a body corporate, by a body corporate that is related to the prescribed 
information provider; 
"relevant interests in land", in relation to a prescribed information 
provider, means interests in land, being interests of a kind sold or 
granted by the prescribed information provider or, where the pre­
scribed information provider is a body corporate, by a body corporate 
that is related to the prescribed information provider. 
Division lA-Product Safety and Product Information 
Warning notice to public 
65B. (1) The Minister may publish a notice in writing in the 
Gazette containing one or both of the following: 
(a) a statement that goods of a kind specified in the notice are 
under investigation to determine whether the goods will or 
may cause injury to any person; 
(b) a warning of possible risks involved in the use of goods of a 
kind specified in the notice. 
(2) Where: 
(a) an investigation referred to in subsection (1) has been com­
pleted; and 
(b) neither a notice under section 651 inviting a supplier to notify 
the Commission whether the supplier wishes the Commission 
to hold a conference nor a notice under section 65L has been 
published in relation to the goods since the commencement of 
the investigation; 
the Minister shall, as soon as practicable after the investigation has 
been completed, by notice in writing published in the Gazette, 
announce the results of the investigation, and may announce in the 
notice whether, and if so, what action is proposed to be taken in 
relation to the goods under this Division. IPINIl! AUSIO/I 
Page 87 
Trade Practices Act 1974 
s.65C. 
Product safety standards and unsafe goods 
65C. (1) A corporation shall not, in trade or commerce, supply 
goods that are intended to be used, or are of a kind likely to be used, 
by a consumer if the goods are of a kind: 
(a) in respect of which there is a prescribed consumer product 
safety standard and which do not comply with that standard; 
(b) in respect of which there is in force a notice under this section 
declaring the goods to be unsafe goods; or 
( c) in respect of which there is in force a notice under this section 
imposing a permanent ban on the goods. 
(2) The regulations may, in respect of goods of a particular kind, 
prescribe a consumer product safety standard consisting of such 
requirements as to: 
(a) performance, composition, contents, methods of manufacture 
or processing, design, construction, finish or packaging of the 
goods; 
(b) testing of the goods during, or after the completion of, manu­
facture or processing; and 
(c) the form and content of markings, warnings or instructions to 
accompany the goods; 
as are reasonably necessary to prevent or reduce risk of injury to any 
person. 
(3) A corporation shall not export goods the supply in Australia of 
which is prohibited by subsection (1) unless the Minister has, by notice 
in writing given to the corporation, approved the export of those 
goods. 
(4) Where the Minister approves the export of goods under 
subsection (3), the Minister shall cause a statement setting out particu­
lars of the approval to be laid before each House of the Parliament 
within 7 sitting days of that House after the approval is given. 
(5) Subject to section 65J, where it appears to the Minister that 
goods of a particular kind will or may cause injury to any person, the 
Minister may, by notice in writing published in the Gazette, declare 
the goods to be unsafe goods. 
(6) A notice under subsection (5) remains in force until the end of 
18 months after the date of publication of the notice in the Gazette 
unless it is revoked before the end of that period. 
(7) Subject to section 65J, where: 
(a) a period of 18 months has elapsed after the date of publication 
of a notice in the Gazette declaring goods to be unsafe goods; 
and IP/N/l! AUS/Oll 
Page 88 
Trade Practices Act 1974 
s.6SD. 
(b) there is not a prescribed consumer product safety standard in 
respect of the goods; 
the Minister may, by notice in writing published in the Gazette, 
impose a permanent ban on the goods. 
(8) Where: 
(a) the supplying of goods by a corporation constitutes a con­
travention of this section by reason that the goods do not 
comply with a prescribed consumer product safety standard; 
(b) a person suffers loss or damage by reason of a defect in, or a 
dangerous characteristic of, the goods or by reason of not 
having particular information in relation to the goods; and 
(c) the person would not have suffered the loss or damage if the 
goods had complied with that standard; 
the person shall be deemed for the purposes of this Act to have 
suffered the loss or damage by the supplying of the goods. 
(9) Where: 
(a) the supplying of goods by a corporation constitutes a con­
travention of this section by reason that there is in force a 
notice under this section declaring the goods to be unsafe 
goods or imposing a permanent ban on the goods; and 
(b) a person suffers loss or damage by reason of a defect in, or a 
dangerous characteristic of, the goods or by reason of not 
having particular information as to a characteristic of the 
goods; 
the person shall be deemed for the purposes of this Act to have 
suffered the loss or damage by the supplying of the goods. 
Product information standards 
6SD. (1) A corporation shall not, in trade or commerce, supply 
goods that are intended to be used, or are of a kind likely to be used, 
by a consumer, being goods of a kind in respect of which a consumer 
product information standard has been prescribed, unless the corpora­
tion has complied with that standard in relation to those goods. 
(2) The regulations may, in respect of goods of a particular kind, 
prescribe a consumer product information standard consisting of such 
requirements as to: 
(a) the disclosure of information relating to the performance, 
composition, contents, methods of manufacture or processing, 
design, construction, finish or packaging of the goods; and 
(b) the form and manner in which that information is to be 
disclosed on or with the goods; s.6SE. IP/~/l/~lJS/()/l 
Page 89 
Trade Practices Act 1974 
as are reasonably necessary to give persons using the goods informa­
tion as to the quantity, quality, nature or value of the goods. 
(3) Subsection (1) does not apply to goods that are intended to be 
used outside Australia. . 
(4) If there is applied to goods: 
(a) a statement that the goods are for export only; or 
(b) a statement indicating by the use of words authorised by the 
regulations to be used for the purposes of this subsection that 
the goods are intended to be used outside Australia; 
it shall be presumed for the purposes of this section, unless the 
contrary is established, that the goods are intended to be so used. 
(5) For the purposes of subsection (4), a statement shall be 
deemed to be applied to goods if: 
(a) the statement is woven in, impressed on, worked into or 
annexed or affixed to the goods; or 
(b) the statement is applied to a covering, label, reel or thing in or 
with which the goods are supplied. 
(6) A reference in subsection (5) to a covering includes a reference 
to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper 
and a reference in that subsection to a label includes a reference to a 
band or ticket. 
(7) Where: 
(a) the supplying of goods by a corporation constitutes a con­
travention of this section by reason that the corporation has 
not complied with a prescribed consumer product information 
standard in relation to the goods; 
(b) a person suffers loss or damage by reason of not having 
particular information in relation to the goods; and 
(c) the person would not have suffered the loss or damage if the 
corporation had complied with that standard in relation to the 
goods; 
the person shall be deemed, for the purposes of this Act, to have 
suffered the loss or damage by the supplying of the goods. 
Power of Minister to declare product safety or information standards 
65E. (1) The Minister may, by notice in writing published in the 
Gazette, declare that, in respect of goods of a kind specified in the 
notice, a particular standard, or a particular part of a standard, 
prepared or approved by the Standards Association of Australia or by 
a prescribed association or body, or such a standard or part of a 
standard with additions or variations specified in the notice, is a IP/N/1/AUS/O/1 . 
Page 90 
Trade Practices Act 1974 
s.6SF. 
consumer product safety standard for the purposes of section 65C or a 
consumer product information standard for the purposes of section 
65D. 
(2) Where a notice is so published, the standard, or the part of the 
standard, referred to in the notice, or the standard or part of a 
standard so referred to with additions or variations specified in the 
notice, as the case may be, shall be deemed to be a prescribed 
consumer product safety standard for the purposes of section 65C or a 
prescribed consumer product information standard for the purposes of 
section 65D, as the case may be. 
(3) Subsection (1) does not authorise the publication of a notice in 
relation to goods of a particular kind if the standard or the part of the 
standard referred to in the notice, or the standard or the part of the 
standard so referred to with additions and variations specified in the 
notice, is .inconsistent with a standard prescribed in relation to goods 
of that kind by regulations made for the purposes of section 65C or 
6SD. 
Compulsory product recall 
65F. (1) Subject to section 651, where: 
(a) a corporation (in this section referred to as the "supplier"), in 
trade or commerce, supplies on or after 1 1 uly 1986 goods that 
are intended to be used, or are of a kind likely to be used, by 
a consumer; 
(b) one of the following subparagraphs applies: 
(i) it appears to the Minister that the goods are goods of a 
kind which will or may cause injury to any person; 
(ii) the goods are goods of a kind in respect of which there 
is a prescribed consumer product safety standard and 
the goods do not comply with that standard; 
(Hi) the goods are goods of a kind in relation to which 
there is in force a notice under subsection 65C (5) or 
(7); and 
(c) it appears to the Minister that the supplier has not taken 
satisfactory action to prevent the goods causing injury to any 
person; 
the Minister may, by notice in writing published in the Gazette, 
require the supplier to do one or more of the following: 
(d) take action within the period specified in the notice to recall 
the goods; 
(e) disclose to the public, or to a class of persons specified in the 
notice, in the manner and within the period specified in the 
notice, one or more of the following: s.6SF. Trade Practices Act 1974 IP/N/1/ AUSIOIl 
Page 91 
(i) the nature of a defect in, or a dangerous characteristic 
of, the goods identified in the notice; 
(ii) the circumstances, being circumstances identified in the 
notice, in which the use of the goods is dangerous; or 
(iii) procedures for disposing of the goods specified in the 
notice; 
(f) inform the public, or a class of persons specified in the notice, 
in the manner and within the period specified in the notice, 
that the supplier undertakes to do whichever of the following 
the supplier thinks is appropriate: 
(i) except where the notice identifies a dangerous char­
acteristic of the goods-repair the goods; 
(ii) replace the goods; 
(iii) refund to a person to whom the goods were supplied 
(whether by the supplier or by another person) the 
price of the goods; 
within the period specified in the notice. 
(2) Notwithstanding subparagraph (1) (f) (iii), where the Minister, 
in a notice under subsection (1), requires the supplier to take action 
under paragraph (1) (f), the Minister may specify in the notice that, 
where: 
(a) the supplier chooses to refund the price of the goods; and 
(b) a period of more than 12 months has elapsed since a person 
(whether or not the person to whom the refund is to be made) 
acquired the goods from the su pplier; 
the amount of a refund may be reduced by the supplier by an amount 
attributable to the use which a person has had of the goods, being an 
amoun t calculated in a manner specified in the notice. 
(3) The Minister may, by notice in writing published in the 
Gazette, give directions as to the manner in which the supplier is to 
carry out a recall of goods required under subsection (1). 
(4) Where the supplier, under subsection (1), undertakes to repair 
goods, the supplier shall cause the goods to be repaired so that: 
(a) any defect in the goods identified in the notice under sub­
section (1) is remedied; and 
(b) if there is a prescribed consumer product safety standard in 
respect of the goods-the goods comply with that standard. 
(5) Where the supplier, under subsection (1), undertakes to 
replace goods, the supplier shall replace the goods with like goods 
which: IP/N/l! AUS/Oll 
Page 92 
Trade Practices Act 1974 
s.65G. 
(a) if a defect in, or a dangerous characteristic of, the first­
mentioned goods was identified in the notice under subsection 
(I)-do not contain that defect or have that characteristic; and 
(b) if there is a prescribed consumer product safety standard in 
respect of goods of that kind-comply with that standard. 
(6) Where the supplier, under subsection (1), undertakes to repair 
goods or replace goods, the cost of the repair or replacement, includ­
ing any necessary transportation costs, shall be borne by the supplier. 
(7) Where goods are recalled, whether voluntarily or in accor­
dance with a requirement made by the Minister under paragraph (1) 
(d), a person who has supplied or supplies any of the recalled goods to 
another person outside Australia shall, as soon as practicable after the 
supply of those goods, give a notice in writing to that other person: 
(a) stating that the goods are subject to recall; 
(b) if the goods contain a defect or have a dangerous characteris­
tic-setting out the nature of that defect or characteristic; and 
(c) if the goods do not comply with a prescribed consumer prod­
uct safety standard in respect of the goods-setting out the 
nature of the non-compliance. 
(8) Where a person is required under subsection (7) to give a 
notice in writing to another person, the first-mentioned person shall, 
within 10 days after giving that notice, provide the Minister with a 
copy of that notice. 
(9) A person who contravenes subsection (8) is guilty of an offence 
punishable on conviction by a fine not exceeding 30 penalty units. 
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is 
convicted of the offence, subsection 4B (3) of that Act allows a court to impose a fine of an 
amount not greater than 5 times the maximum fine that the court could impose on an 
individual convicted of the same offence. 
Compliance with product recall order 
6SG. Where a notice under subsection 65F (1) is in force in 
relation to a corporation, the corporation: 
(a) shall comply with the requirements and directions in the 
notice; and 
(b) shall not, in trade or commerce: 
(i) where the notice identifies a defect in, or a dangerous 
characteristic of, the goods-supply goods of the kind 
to which the notice relates which contain that defect or 
have that characteristic; or 
(ii) in any other case-supply goods of the kind to which 
the notice relates. Trade Practices Act 1974 
s.65H. IPIN/lI AUS/O/l 
Page 93 
Loss or damage caused by contravention of product recall order 
6SH. Where: 
(a) a corporation contravenes section 65G by: 
(i) supplying goods of a kind in relation to which a notice 
under subsection 65F (1) is in force; or 
(ii) failing to comply with the requirements of such a 
notice; and 
(b) a person suffers loss or damage by reason of a defect in, or a 
dangerous characteristic of, the goods or by reason of not 
having particular information as to a characteristic of the 
goods; 
the person shall be deemed for the purposes of this Act to have 
suffered the loss or damage by the supplying of the goods, or by the 
failure of the corporation to comply with the notice, as the case may 
be. 
Opportunity for conference to be afforded before certain powers 
exercised 
65J. (1) Subject to section 65L, where the Minister proposes to 
publish a notice under subsection 65C (5) or (7) or 65F (1) in relation 
to goods of a particular kind, the Minister shall prepare: 
(a) a draft of the notice proposed to be published; and 
(b) a summary of the reasons for the proposed publication of the 
notice; 
and shall, by notice in writing published in the Gazette, invite any 
person (in this section referred to as a "supplier") who supplied or 
proposes to supply goods of that kind to notify the Commission, within 
the period (in this section referred to as the "relevant period") of 10 
days commencing on the day specified in the last-mentioned notice, 
being not earlier than the day on which that notice is published in the 
Gazette, whether the supplier wishes the Commission to hold a con­
ference in relation to the proposed publication of the first-mentioned 
notice. 
(2) A notice published under subsection (1) shall set out a copy of 
the draft notice under subsection 65C (5) or (7) or 65F (1) and a copy 
of the summary of the reasons for the proposed publication of the 
notice. 
(3) If no supplier notifies the Commission in writing within the 
relevant period or within such longer period as the Commission allows 
that the supplier wishes the Commission to hold a conference in IP/N/l! AUS/O/I 
Page 94 
Trade Practices Act 1974 
s.6SK. 
relation to the proposed publication of the notice under subsection 
65C (5) or (7) or 65F (1), the Commission shall notify the Minister 
accordingly. 
(4) If a supplier notifies the Commission in writing within the 
relevant period or within such longer period as the Commission allows 
that the supplier wishes the Commission to hold a conference in 
relation to the proposed publication of a notice under subsection 65C 
(5) or (7) or 65F (1), the Commission shall appoint a day (being not 
later than 14 days after the end of that period), time and place for the 
holding of the conference, and give notice of the day, time and place 
so appointed to the Minister and to each supplier who so notified the 
Commission. 
(5) At a conference under this section: 
(a) the Commission shall be represented by a member or mem­
bers nominated by the Chairman; 
(b) each supplier who notified the Commission in accordance with 
subsection (4) is entitled to be present or to be represented; 
(c) any other person whose presence at the conference is consid­
ered by the Commission to be appropriate is entitled to be 
present or to be represented; 
(d) the Minister or a person or persons nominated in writing by 
the Minister is or are entitled to be present; and 
(e) the procedure to be followed shall be as determined by the 
Commission. 
(6) The Commission shall cause a record of proceedings at a 
conference under this section to be kept. 
(7) The Commission shall, as far as is practicable, ensure that each 
person who, in accordance with subsection (5), is entitled to be present 
or who is representing such a person at a conference is given a 
reasonable opportunity at the conference to present his or her case 
and, in particular, to inspect any documents which the Commission 
proposes to consider for the purpose of making a recommendation 
after the conclusion of the conference, other than any document that 
contains particulars of a secret formula or process, and to make 
submissions in relation to those documents. 
Recommendation after conclusion of conference 
6SK. As soon as is practicable after the conclusion of a conference 
in relation to the proposed publication of a notice under subsection 
65C (5)' Or (7) or 65F (1), the Commission shall: 
(a) by notice in writing given to the Minister, recommend that: s.6SL. Trade Practices Act 1974 IP/N/l/AUS/O/1 
Page 95 
(i) the Minister publish the first-mentioned notice in the 
same terms as the draft notice referred to in subsection 
65J (1); 
(ii) the Minister publish the first-mentioned notice with 
such modifications as are specified by the Commission; 
or 
(iii) the Minister not publish the first-mentioned notice; 
and 
(b) cause a copy of the notice in writing given to the Minister to 
be given to each supplier who was present or represented at 
the conference. 
Exception in case of danger to public 
6SL. (1) Where it appears to the Minister that goods of a 
particular kind create an imminent risk of death, serious illness or 
serious injury, the Minister may, by notice in writing published in the 
Gazette, certify that a notice in relation to the goods under subsection 
65C (5) or 65F (1) should be published without delay. 
(2) Where the Minister publishes a notice in the Gazette under 
subsection (1): 
(a) in a case where the notice is published before the Minister 
takes any action under subsection 65J (1) in relation to goods 
of a particular kind-section 65J does not apply in relation to 
the action that the Minister may take under subsection 65C (5) 
or 65F (1) in relation to goods of that kind; or 
(b) in any other case-any action taken by the Minister under 
subsection 65J (1) in relation to goods of a particular kind 
ceases to have effect and, if a conference had, under section 
65J, been arranged or such a conference had commenced or 
been completed without the Commission making a recommen­
dation under section 65K, the Minister may publish the notice 
under subsection 65C (5) or 65F (1) without regard to the 
action taken under subsection 65J (1). 
Conference after goods banned 
6SM. (1) Where: 
(a) a notice has been published under subsection 65C (5) in 
relation to goods of a particular kind; and 
(b) the Minister publishes a notice under section 65L in relation 
to goods of that kind; 
the Minister shall, by notice in writing published in the Gazette, invite 
any person (in this section referred to as a "supplier") who supplied 
or proposes to supply goods of that kind to notify the Commission IPINIl! AUSIO/I 
Page 96 
Trade Practices Act 1974 
s.6SN. 
within the period (in this section referred to as the "relevant period") 
of 10 days commencing on the day specified in the last-mentioned 
notice, being not earlier than the day on which that notice is published 
in the Gazette, to notify the Commission whether the supplier wishes 
the Commission to hold a conference in relation to the notice referred 
to in paragraph (a). 
(2) If a supplier notifies the Commission in writing within the 
relevant period, or within such longer period as the Commission 
allows, that the supplier wishes the Commission to hold a conference 
in relation to the notice published under subsection 65C (5), the 
Commission shall appoint a day (being not later than 14 days after the 
end of that period), time and place for the holding of the conference 
and give notice of the day, time and place so appointed to the Minister 
and to each supplier who so notified the Commission. 
(3) Subsections 651 (5), (6) and (7) apply in relation to a con­
ference held under this section. 
Recommendation after conclusion of conference 
6SN. As soon as is practicable after the conclusion of a conference 
in relation to a notice that has been published under subsection 65C 
(5), the Commission shall: . 
(a) by notice in writing given to the Minister, recommend that the 
notice under subsection 65C (5): 
(i) remain in force; 
(ii) be varied; or 
(iii) be revoked; and 
(b) cause a copy of the notice in writing given to the Minister to 
be given to each supplier who was present or represented at 
the conference. 
Minister to have regard to recommendation of Commission 
65P. Where the Commission, under section 65K or 65N, makes a 
recommendation to the Minister in relation to the proposed publica­
tion of a notice under subsection 65C (5) or (7) or 65F (1) or in 
relation to a notice that has been published under subsection 65C (5): 
(a) the Minister shall have regard to the recommendation; and 
(b) where the Minister decides to act otherwise than in accordance 
with the recommendation, the Minister shall, by notice in 
writing published in the Gazette, set out the reasons for the 
Minister's decision. Trade Practices Act 1974 
s.65Q. 
Power to obtain information, documents and evidence IPIN/lI AUS/O/l 
Page 97 
65Q. (1) Where the Minister or an officer authorised by the 
Minister for the purposes of this section (in this section referred to as 
an "authorised officer") has reason to believe that a corporation 
which, in trade or commerce, supplies goods of a particular kind 
which are intended to be used or are of a kind likely to be used by a 
consumer and which will or may cause injury to any person is capable 
of furnishing information, producing documents or giving evidence 
relating to goods of that kind, the Minister or the authorised officer 
may, by notice in writing served on the corporation, require the 
corporation: 
(a) to furnish to the Minister, by writing signed by a competent 
officer of the corporation, in the manner, and within such 
reasonable time, as are specified in the notice, any such 
information; 
(b) to produce to the Minister, or to the authorised officer, in 
accordance with such reasonable requirements as are specified 
in the notice, any such documents; or 
(c) to cause a competent officer of the corporation to appear 
before the Minister or the authorised officer at such reason­
able time and place as are specified in the notice to give any 
such evidence, either orally or in writing, and produce any 
such documents. 
(2) Where an authorised officer has reason to believe that goods of 
a particular kind which are intended to be used or are of a kind likely 
to be used by a consumer will or may cause injury to a person, an 
authorised officer may, for the purposes of ascertaining whether goods 
of that kind will or may cause injury to any person, enter any premises 
in or from which the authorised officer has reason to believe a 
corporation supplies goods of that kind in trade or commerce and: 
(a) inspect goods of that kind; 
(b) take samples of goods of that kind; 
(c) inspect any documents relating to goods of that kind and make 
copies of, or take extracts from, those documents; or 
(d) inspect equipment used in the manufacturing, processing or 
storage of goods of that kind. 
(3) The powers of an authorised officer under subsection (2) shall 
not be exercised except: 
(a) pursuant to a warrant issued under subsection (5); or 
(b) in circumstances where the exercise of those powers is re­
quired without delay in order to protect life or public safety. IPINIl! AUSIO/l 
Page 98 
Trade Practices Act 1974 
s.65Q. 
(4). An authorised officer may apply to a person who is a judge of 
the Court or of the Supreme Court of a State or Territory for the issue 
under subsection (5) of a warrant to exercise the powers of an 
authorised officer under subsection (2) in relation to premises. 
(5) Where an application under subsection (4) is made to a person 
who is a judge of such a court, the person may issue a warrant 
authorising an authorised officer named in the warrant, with such 
assistance as the officer thinks necessary and if necessary by force, to 
enter the premises specified in the warrant and to exercise the powers 
of an authorised officer under subsection (2) in relation to those 
premises. 
(6) A person who is a judge of such a court shall not issue a 
warrant under subsection (5) unless: 
(a) an affidavit has been furnished to the person setting out the 
grounds on which the issue of the warrant is being sought; 
(b) the applicant or some other person has given to the first­
mentioned person such further information (if any) as the 
first-mentioned person requires concerning the grounds on 
which the issue of the warrant is being sought; and 
(c) . the first-mentioned person is satisfied that there are reasonable 
grounds for issuing the warrant. 
(7) A warrant issued under subsection (5) shall: 
(a) specify the purpose for which the warrant is issued; 
(b) state whether entry is authorised to be made at any time of the 
day or night or during specified hours of the day or night; 
(c) include a description of the kind of goods authorised to be 
inspected or sampled; and 
(d) specify a day, not being later than 7 days after the day on 
which the warrant is issued, at the end of which the warrant 
ceases to have effect. 
(7 A) An authorised officer or a person assisting the authorised 
officer must, before any person enters the premises under a warrant 
issued under subsection (5): 
(a) announce that he or she is authorised to enter the premises; 
and 
(b) give any person at the premises an opportunity to allow entry 
to the premises. 
(7B) An authorised officer or a person assisting the authorised 
officer is not required to comply with subsection (7 A) if he or she 
believes on reasonable grounds that immediate entry to the premises is 
required to ensure: Trade Practices Act 1974 
s.6SR. IP/N/1/AUS/O/l 
Page 99 
(a) the safety of a person (including the authorised officer and the 
person assisting the authorised officer); or 
(b) that the effective execution of the warrant is not frustrated. 
(8) Where an authorised officer takes samples under paragraph (2) 
(b), the officer shall pay a reasonable price for the goods sampled. 
(9) A person who refuses or fails to comply with a notice under 
this section to the extent that the person is capable of complying with 
it is guilty of an offence. 
Penalty: 40 penalty units. 
(9A) A person who, in purported compliance with such a notice, 
furnishes information or gives evidence that, to the person's knowl­
edge, is false or misleading in a material particular is gUilty of an 
offence. 
Penalty: Imprisonment for 12 months. 
(10) A person who refuses or fails to provide an authorised officer 
acting in accordance with subsection (2) with all reasonable facilities 
and assistance for the effective exercise of the authorised officer's 
powers under that subsection is guilty of an offence. 
Penalty: Imprisonment for 2 years. 
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. Under subsection 4D (1) 
of that Act, these penalties are only maximum penalties for the offences. Subsection 48 (2) 
of that Act allows a court to impose an appropriate fine instead 01, or in addition to, a term 
of imprisonment. If a body corporate is convicted of one of the offences. subsection 48 (3) 
of that Act allows a court to impose a fine of an amount not greater than 5 times the 
maximum fine that the court could impose on an individual convicted of the same offence. 
(11) Any information furnished or evidence given by a person 
under this section, any document produced by a person under this 
section, and any information, evidence or document obtained under 
this section, is not admissible in evidence against the person: 
(a) in any proceedings instituted by the person; or 
(b) in any other proceedings, other than proceedings against the 
person for a contravention of a provision of this section. 
Notification of voluntary recall 
6SR. (1) Where a corporation voluntarily takes action to recall 
goods because the goods will or may cause injury to any person, the 
corporation shall, within 2 days after taking that action, give a notice 
in writing to the Minister: 
(a) stating that the goods are subject to recall; and 
(b) setting out the nature of the defect in, or dangerous 
characteristic of, the goods. IP/~/l/)\lJS/()/l 
Page 100 
Trade Practices Act 1974 
s.65S. 
(2) A person who contravenes subsection (1) is guilty of an offence 
punishable on conviction by a fine not exceeding 30 penalty units. 
Note: Penalty units are defined in section 4AA of the Crimes Act 1914. If a body corporate is 
convicted of the offence, subsection 48 (3) of that Act allows a court to impose a fine of an 
amount not greater than 5 times the maximum fine that the court could impose on an 
individual convicted of the same offence. 
Copies of certain notices to be given to suppliers or published in certain 
newspapers 
65S. (1) Where the Minister publishes a notice in writing in the 
Gazette under subsection 65B (1), 651 (1), 65L (1) or 65M (1), the 
Minister shall, within 2 days after the publication of that notice in the 
Gazette, or, if it is not practicable to do so within that period, as soon 
as practicable after the end of that period, either: 
(a) cause a copy of the notice to be given to each person who, to 
the knowledge of the Minister, supplies goods of the kind to 
which the notice relates; or 
(b) cause a copy of the notice to be published in a newspaper 
circulating in each part of Australia where goods of the kind 
to which the notice relates are, to the knowledge of the 
Minister, supplied. 
(2) Any failure to comply with subsection (1) in relation to a 
notice does not invalidate the notice. 
Certain action not to affect insurance contracts 
6ST. The liability of an insurer under a contract of insurance with 
a corporation, being a contract relating to the recall of goods supplied 
or proposed to be supplied by the corporation or to the liability of the 
corporation with respect to possible defects in goods supplied or 
proposed to be supplied by the corporation, shall not be affected by 
reason only that the corporation gives to the Minister, to the Commis­
sion, to an officer of the Australian Public Service or to an officer of 
an authority of the Commonwealth information relating to any goods 
supplied or proposed to be supplied by the corporation. 
Division 2 -Conditions and Warranties in Consumer Transactions 
Interpretation 
66. (1) In this Division: 
(a) a reference to the quality of goods includes a reference to the 
state or condition of the goods; 
(b) a reference to a contract does not include a reference to a 
contract made before the commencing date; Trade Practices Act 1974 
s.66A. IPINIlIAUS/O/1 
Page 101 
(c) a reference to antecedent negotiations in relation to a contract 
for the supply by a corporation of goods to a consumer is 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 make the contract or which otherwise pro­
moted the transaction to which the contract relates; and 
(d) a reference to the person by whom any antecedent negotiations 
were conducted is a reference to the person by whom the 
negotiations or arrangements concerned were conducted or 
made. 
(2) Goods of any kind are of merchantable quality within the 
meaning of this Division 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 any description applied to them, the price 
(if relevant) and all the other relevant circumstances. 
Convention on Contracts for the International Sale of Goods 
66A. The provisions of the United Nations Convention on Con­
tracts for the International Sale of Goods, adopted at Vienna, Austria, 
on 10 April 1980, prevail over the provisions of this Division to the 
extent of any inconsistency. 
Conflict of laws 
67. Where: 
(a) the proper law of a contract for the supply by a corporation of 
goods or services to a consumer would, but for a term that it 
should be the law of some other country or a term to the like 
effect, be the law of any part of Australia; or 
(b) a contract for the supply by a corporation of goods or services 
to a consumer contains a term that purports to substitute, or 
has the effect of substituting, provisions of the law of some 
other country or of a State or Territory for all or any of the 
provisions of this Division; 
this Division applies to the contract notwithstanding that term. 
Application of provisions not to be excluded or modified 
68. (1) Any term of a contract (including a term that is not set out 
in the contract but is incorporated in the contract by another term of 
the contract) that purports to exclude, restrict or modify or has the 
effect of excluding, restricting or modifying: 
(a) the application of all or any of the provisions of this Division; 
(b) the exercise of a right conferred by such a provision; IP/N/l! ADS/Oil 
Page 102 
Trade Practices Act 1974 
s.68A. 
(c) any liability of the corporation for breach of a condition or 
warranty implied by such a provision; or 
(d) the application of section 7SA; 
is void. 
(2) A term of a contract shall not be taken to exclude, restrict or 
modify the application of a provision of this Division or the applica­
tion of section 7SA unless the term does so expressly or is inconsistent 
with that provision or section. 
Limitation of liability for breach of certain conditions or warranties 
68A. (1) Subject to this section, a term of a contract for the 
supply by a corporation of goods or services other than goods or 
services of a kind ordinarily acquired for personal, domestic or house­
hold use or consumption is not void under section 68 by reason only 
that the term limits the liability of the corporation for a breach of a 
condition or warranty (other than a condition or warranty implied by 
section 69) to: 
(a) in the case of goods, anyone or more of the following: 
(i) the replacement of the goods or the supply of equiv­
alent goods; 
(ii) the repair of the goods; 
(iii) the payment of the cost of replacing the goods or of 
acquiring equivalent goods; 
(iv) the payment of the cost of having the goods repaired; 
or 
(b) in the case of services: 
(i) the supplying of the services again; or 
(ii) the payment of the cost of having the services supplied 
again. 
(2) Subsection (1) does not apply in relation to a term of a 
contract if the person to whom the goods or services were supplied 
establishes that it is not fair or reasonable for the corporation to rely 
on that term of the contract. 
(3) In determining for the purposes of subsection (2) whether or 
not reliance on a term of a contract is fair or reasonable, a court shall 
have regard to all the circumstances of the case and in particular to 
the following matters: 
(a) the strength of the bargaining positions of the corporation and 
the. person to whom the goods or services were supplied (in 
this subsection referred to as "the buyer") relative to each s.69. Trade Practices Act 1974 lP/Nil/ ADS/O/l 
Page 103 
other, taking into account, among other things, the availability 
of equivalent goods or services and suitable alternative sources 
of supply; 
(b) whether the buyer received an inducement to agree to the 
term or, in agreeing to the term, had an opportunity of 
acquiring the goods or services or equivalent goods or services 
from any source of supply under a contract that did not 
include that term; 
(c) whether the buyer knew or ought reasonably to have known of 
the existence and extent of the term (having regard, among 
other things, to any custom of the trade and any previous 
course of dealing between the parties); and 
(d) in the case of the supply of goods, whether the goods were 
manufactured, processed or adapted to the special order of the 
buyer. 
Implied undertakings as to title, encumbrances and quiet possession 
69. (1) In every contract for the supply of goods by a corporation 
to a consumer, other than a contract to which subsection (3) applies, 
there is: 
(a) an implied condition that, in the case of a supply by way of 
sale, the supplier has a right to sell the goods, and, in the case 
of an agreement to sell or a hire-purchase agreement, the 
supplier will have a right to sell the goods at the time when 
the property is to pass; 
(b) an implied warranty that the consumer will enjoy quiet posses­
sion of the goods except so far as it 111.11' lawfully be disturbed 
by the supplier or by another person who is entitled to the 
benefit of any charge or encumbrance disclosed or known to 
the consumer before the contract is made; and 
(c) in the case of a contract for the supply of goods under which 
the property is to pass or may pass to the consumer-an 
implied warranty that the goods are free, and will remain free 
until the time when the property passes, from any charge or 
encumbrance not disclosed or known to the consumer before 
the contract is made. 
(2) A corporation is not, in relation to a contract for the supply of 
goods, in breach of the implied warranty referred to in paragraph (1) 
(c) by reason only of the existence of a floating charge over assets of 
the corporation unless and until the charge becomes fixed and enforce­
able by the person to whom the charge is given. IP/N/l/AUS/O/l 
Page 104 
Trade Practices Act 1974 
s.70. 
(3) In a contract for the supply of goods by a corporation to a 
consumer in the case of which there appears from the contract or is to 
be inferred from the circumstances of the contract an intention that 
the supplier should transfer only such title as he or a third person may 
have, there is: 
(a) an implied warranty that all charges or encumbrances known 
to the supplier and not known to the consumer have been 
disclosed to the consumer before the contract is made; and 
(b) an implied warranty that: 
(i) the supplier; 
(ii) in a case where the parties to the contract intend that 
the supplier should transfer only such title as a third 
person may have-that person; and 
(iii) anyone claiming through or under the supplier or that 
third person otherwise than under a charge or encum­
brance disclosed or known to the consumer before the 
contract is made; 
will not disturb the consumer's quiet possession of the goods. 
Supply by description 
70. (1) Where there is a contract for the supply (otherwise than 
by way of sale by auction) by a corporation in the course of a business 
of goods to a consumer by description, there is an implied condition 
that the goods will correspond with the description, and, if the supply 
is by reference to a sample as well as by descri ption, it is not sufficient 
that the bulk of the goods corresponds with the <.;ample if the goods do 
not also correspond with the description. 
(2) A supply of goods is not prevented from being a supply by 
description for the purposes of subsection (1) by reason only that, 
being exposed for sale or hire, they are selected by the consumer. 
Implied undertakings as to quality or fitness 
71. (1) Where a corporation supplies (otherwise than by way of 
sale by auction) goods to a consumer in the course of a business, there 
is an implied condition that the goods supplied under the contract for 
the supply of the goods are of merchantable quality, except that there 
is no such condition by virtue only of this section: 
(a) as regards defects specifically drawn to the consumer's atten­
tion before the contract is made; or 
(b) if the consumer examines the goods before the contract is 
made, as regards defects which that examination ought to 
reveal. Trade Practices Act 1974 
s.72. IPlNllI AUS/O/l 
Page 105 
(2) Where a corporation supplies (otherwise than by way of sale by 
auction) goods to a consumer in the course of a business and the 
consumer, expressly or by implication, makes known to the corpora­
tion or to the person by whom any antecedent negotiations are 
conducted any particular purpose for which the goods are being 
acquired, there is an implied condition that the goods supplied under 
the contract for the supply of the goods are reasonably fit for that 
purpose, whether or not that is a purpose for which such goods are 
commonly supplied, except where the circumstances show that the 
consumer does not rely, or that it is unreasonable for him to rely, on 
the skill or judgment of the corporation or of that person. 
(3) Subsections (1) and (2) apply to a contract for the supply of 
goods made by a person who in the course of a business is acting as 
agent for a corporation as they apply to a contract for the supply of 
goods made by a corporation in the course of a business, except where 
that corporation is not supplying in the course of a business and either 
the consumer knows that fact or reasonable steps are taken to bring it 
to the notice of the consumer before the contract is made. 
Supply by sample 
72. Where in a contract for the supply (otherwise than by way of 
sale by auction) by a corporation in the course of a business of goods 
to a consumer there is a term in the contract, expressed or implied, to 
the effect that the goods are supplied by reference to a sample: 
(a) there is an implied condition that the bulk will correspond 
with the sample in quality; 
(b) thcl'.' is an implied condition that llw consumer will have a 
re~l~ul1able opportunity of comparing the bulk with the sample; 
and 
(c) there is an implied condition that the goods will be free from 
any defect, rendering them unmerchantable, that would not be 
apparent on reasonable examination of the sample. 
Liability for loss or damage from breach of certain contracts 
73. (1) Where: 
(a) a corporation (in this section referred to as the "supplier") 
supplies goods, or causes goods to be supplied, to a linked 
credit provider of the supplier and a consumer enters into a 
contract with the linked credit provider for the provision of 
credit in respect of the supply by way of sale, lease, hire or 
hire-purchase of the goods to the c?nsumer; or IPINIl! AUSIO/l 
Page 106 
Trade Practices Act 1974 
s.73. 
(b) a consumer enters into a contract with a linked credit provider 
of a corporation (in this section also referred to as the 
, "supplier") for the provision of credit in respect of the supply 
by the supplier of goods or services, or goods and services, to 
the consumer; 
and the consumer suffers loss or damage as a result of misrepresenta­
tion, breach of contract, or failure of consideration in relation to the 
contract, or as a result of a breach of a condition that is implied in the 
contract by virtue of section 70, 71 or 72 or of a warranty that is 
implied in the contract by virtue of section 74, the supplier and the 
linked credit provider are, subject to this section, jointly and severally 
liable to the consumer for the amount of the loss or damage, and the 
consumer may recover that amount by action in accordance with this 
section in a court of competent jurisdiction. 
(2) Where: 
(a) a corporation (in this section also referred to as the 
"supplier") supplies goods, or causes goods to be supplied, to 
a credit provider who is not a linked credit provider of the 
supplier; 
(b) a consumer enters into a contract with the credit provider for 
the provision of credit in respect of the supply by way of sale, 
lease, hire or hire-purchase of the goods to the consumer; 
(c) antecedent negotiations in relation to the contract were con­
ducted with the consumer by or on behalf of the supplier; and 
(d) the credit provider did not take pl1~'c;;ical possession of the 
goods before they were delivered to LII\..' consumer; 
or where a consumer enters into a contract v..' j lh a credit provider for 
the provision of credit in respect of the supply of services to the 
consumer by a corporation (in this section also referred to as the 
"supplier") of which the credit provider is not a linked credit pro­
vider, and the consumer suffers loss or damage as a result of a breach 
of a condition that is implied in the contract by virtue of section 70, 71 
or 72 or of a warranty that is implied in the contract by virtue of 
section 74, the credit provider is not under any liability to the 
consumer for the amount of the loss or damage, but the consumer may 
recover that amount by action in a court of competent jurisdiction 
against the supplier. 
(3) A linked credit provider of a particular supplier is not liable to 
a consumer by virtue of subsection (1) in proceedings arising under 
that subsection if the credit provider establishes: Trade Practices Act 1974 
s.73. IP/N/V AUS/Oll 
Page 107 
(a) that the credit provided by the credit provider to the con­
sumer was the result of an approach made to the credit 
provider by the consumer that was not induced by the su p­
plier; 
(b) where the proceedings relate to the supply by way of lease, 
hire or hire-purchase of goods by the linked credit provider to 
the consumer, that: 
(i) after due inquiry before becoming a linked credit pro­
vider of the supplier, the credit provider was satisfied 
that the reputation of the supplier in respect of the 
supplier's financial standing and business conduct was 
good; and 
(ii) after becoming a linked credit provider of the supplier, 
the credit provider had not had cause to suspect that: 
(A) the consumer might be entitled to recover an 
amount of loss or damage suffered as a result of 
misrepresentation or breach of a condition or 
warranty referred to in subsection (1); and 
(B) the supplier might be unable to meet the sup­
plier's liabilities as and when they fall due; 
(c) where the proceedings relate to a contract of sale with respect 
to which a tied loan contract applies, that: 
(i) after due inquiry before becoming a linked credit pro­
vider of the supplier, the credit provider was satisfied 
that the reputation of the supplier in respect of the 
supplier's financial standing and business conduct was 
good; and 
(ii) after becoming a linked credit provider of the supplier, 
but before the tied loan contract was entered into, the 
linked credit provider had not had cause to suspect 
that: 
(A) the consumer might, if the contract was entered 
into, be entitled to recover an amount of loss or 
damage suffered as a result of misrepresentation, 
breach of contract or failure of consideration in 
relation to the contract or as a result of a breach 
of a condition or warranty referred to in sub­
section (1); and 
(B) the supplier might be unable to meet the sup­
plier's liabilities as and when they fall due; or 
(d) where the proceedings relate to a contract of sale with respect 
to which a tied continuing credit contract entered into by the 
linked credit provider applies, that, having regard to: IPINIl! AUSIO/l 
Page 108 
Trade Practices Act 1974 
s.73. 
(i) the nature and volume of business carried on by the 
linked credit provider; and 
(ii) such other matters as appear to be relevant in the 
circumstances of the case; 
the linked credit provider, before becoming aware of the 
contract of sale or of proposals for the making of the contract 
of sale (whichever the linked credit provider first became 
aware of), had not had cause to suspect that a person entering 
into such a contract with the supplier might be entitled to 
claim damages against, or recover a sum of money from, the 
supplier for misrepresentation, breach of contract, failure of 
consideration, breach of a condition or breach of a warranty as 
referred to in subsection (1). 
(4) Subject to subsection (5), in any proceedings in relation to a 
contract referred to in paragraph (1) (a) or (b) in which a credit 
provider claims damages or an amount of money from a consumer, the 
consumer may set up the liability of the credit provider under sub­
section (1) in diminution or extinction of the consumer's liability. 
(5) Subject to subsection (6), a consumer may not, in respect of a 
liability for which, by reason of this section, a supplier and a linked 
credit provider are jointly and severally liable: 
(a) bring proceedings to recover an amount of loss or damage 
from the credit provider; or 
(b) where proceedings are brought against the consumer by the 
credit provider, make a counter-claim or exercise the right 
conferred by subsection (4) against the credit provider; 
unless the consumer brings the action against the supplier and the 
credit provider jointly or, in the case of a counter-claim or right 
conferred by subsection (4), claims in the proceedings against the 
supplier in respect of the liability by third:party proceedings or other­
wise. 
(6) Subsection (5) and paragraphs (8) (a) and (9) (a) do not apply 
in relation to proceedings where: 
(a) the supplier has been dissolved or is commenced to be wound 
up; or -
(b) in the opinion of the court in which the proceedings are taken, 
it is not reasonably likely that a judgment obtained against the 
supplier would be satisfied and the court has, on the applica­
tion of the consumer, declared that subsection (5) and para­
graphs (8) (a) and (9) (a) do not apply in relation to the 
proceedings. Trade Practices Act 1974 
s.73. IPIN/l/AUS/O/l 
Page 109 
(7) The liability of a linked credit provider to a consumer for 
damages or a sum of money in respect of a contract referred to in 
subsection (1) does not exceed the sum of: 
(a) the amount financed under the tied loan contract, tied con­
tinuing credit contract, lease contract, contract of hire or 
contract of hire-purchase; 
(b) the amount of interest (if any) or damages in the nature of 
interest allowed or awarded against the linked credit provider 
by the court; and 
(c) the amount of costs (if any) awarded by the court against the 
linked credit provider or supplier or both. 
(8) Where in proceedings arising under subsection (1), judgment is 
given against a supplier and a linked credit provider, the judgment: 
(a) shall not be enforced against the linked credit provider unless 
a written demand made on the supplier for satisfaction of the 
judgment has remained unsatisfied for not less than 30 days; 
and 
(b) may be enforced against the linked credit provider only to the 
extent of: 
(i) the amount calculated in accordance with subsection 
(7); or 
(ii) so much of the judgment debt as has not been satisfied 
by the supplier; 
whichever is the lesser. 
(9) Where in proceedings ansIng under subsection (1), a right 
conferred by subsection (4) is established against a linked credit 
provider, the consumer: 
(a) shall not receive the benefit of the right unless judgment has 
been given against the supplier and linked credit provider, a 
written demand has been made on the supplier for satisfaction 
of the judgment and the demand has remained unsatisfied for 
not less than 30 days; and 
(b) may receive the benefit only to the extent of: 
(i) the amount calculated in accordance with subsection 
(7); or 
(H) so much of the judgment debt as has not been satisfied 
by the supplier; 
whichever is the lesser. 
(10) Unless the linked credit provider and supplier otherwise 
agree, the supplier is liable to the linked credit provider for the 
amount of a loss suffered by the linked credit provider, being an 
aluount not exceeding the maximum amount of the linked credit IP/N/l/AUS/O/1 
Page 110 
Trade Practices Act 1974 
s.73. 
provider's liability under subsection (7) and, unless the court otherwise 
determines, the amount of costs (if any) reasonably incurred by the 
linked credit provider in defending the proceedings by reason of which 
the liability was incurred. 
(11) Notwithstanding any other law, where, in proceedings arising 
under subsection (1), judgment is given against a supplier and a linked 
credit provider or against a linked credit provider for an amount of 
loss or damage, the court in which the proceedings are taken shall, on 
the application of the consumer, unless good cause is shown to the 
contrary, award interest to the consumer against the supplier and 
credit provider or against the credit provider, as the case may be, upon 
the whole or a part of the amount, from the time when the consumer 
became entitled to recover the amount until the date on which the 
judgment is given, at whichever of the following rates is the greater: 
(a) where the amount payable by the consumer to the credit 
provider for the obtaining of credit in connection with the 
goods or services to which the proceedings relate may be 
calculated at a percentage rate per annum-that rate or, if 
more than one such rate may be calculated, the lower or 
lowest of those rates; 
(b) 8% or such other rate as is prescribed. 
(12) In determining whether good cause is shown against awarding 
interest under subsection (11) on the whole or part of an amount of 
loss or damage, the court shall take into account any payment made 
into court by the supplier or credit provider. 
(13) Where a judgment given in proceedings arising under sub­
section (1) is enforced against a linked credit provider of a particular 
supplier, the credit provider is subrogated to the extent of the judg­
ment so enforced to any rights that the consumer would have had but 
for the judgment against the supplier or any other person. 
(14) In this section: 
"credit provider" means a corporation providing, or proposing to 
provide, in the course of a business carried on by the corporation, 
credit to consumers in relation to the acquisition of goods or services; 
"linked credit provider", in relation to a supplier, means a credit 
provider: 
(a) with whom the supplier has a contract, arrangement or under­
standing relating to: 
(i) the supply to the supplier of goods in which the sup­
plier deals; 
(ii) the business carried on by the supplier of supplying 
goods or services; or s.73A. Trade Practices Act 1974 IP/N/l/AUS/O/l 
Page 111 
(iii) the provision to persons to whom goods or services are 
supplied by the supplier of credit in respect of pay­
ment for those goods or services; 
(b) to whom the supplier, by arrangement with the credit pro­
vider, regularly refers persons for the purpose of obtaining 
credit; 
(c) whose forms of contract or forms of application or offers for 
credit are, by arrangement with the credit provider, made 
available to persons by the supplier; or 
(d) with whom the supplier has a contract, arrangement or under­
standing under which contracts or applications or offers for 
credit from the credit provider may be signed by persons at 
premises of the supplier; 
"tied continuing credit contract" means a continuing credit contract 
under which a credit provider provides credit in respect of the pay­
ment by a consumer for goods or services supplied by a supplier in 
relation to whom the credit provider is a linked credit provider; 
"tied loan contract" means a loan contract entered into between a 
credit provider and a consumer where: 
(a) the credit provider knows or ought reasonably to know that 
the consumer enters into the loan contract wholly or partly for 
the purposes of payment for goods or services supplied by a 
supplier; and 
(b) at the time the loan contract is entered into the credit provider 
is a linked credit provider of the supplier. 
Continuing credit contract 
73A. (1) For the purposes of this section: 
(a) a reference to an agreement includes a reference to an ar­
rangement, understanding or course of dealing; and 
(b) a person shall be deemed to agree with another person with 
respect to a matter if the first-mentioned person has an agree­
ment, arrangement or understanding with the other person, or 
is engaged in a course of dealing with the other person, with 
respect to the matter. 
(2) Where: 
(a) a person (in this section referred to as "the creditor"), in the 
course of a business carried on by the creditor, agrees with a 
consumer to provide credit to the consumer in respect of: 
(i) payment for goods or services or cash supplied by the 
creditor to the consumer from time to time; or IPINIl! AUSIO/l 
Page 112 
Trade Practices Act 1974 
s.73B. 
(ii) payment by the creditor to a third person in respect of 
goods or services or cash supplied by that third person 
to the consumer from time to time; and 
(b) the amounts owing to the creditor from time to time under the 
agreement are or are to be calculated on the basis that all 
amounts owing, and all payments made, by the consumer 
under or in respect of the agreement are entered in one or 
more accounts kept for the purpose of the agreement; 
the agreement is, for the purposes of section 73, a continuing credit 
contract. 
(3) Where the creditor agrees to make payments to a third person 
in respect of goods or services or cash supplied by that third person to 
the consumer, as mentioned in subparagraph (2) (a) (ii), then, for the 
purposes of this section, the creditor shall, in respect of any goods or 
services or cash so supplied, be deemed to have provided credit to the 
consumer to the extent of any payments made or to be made by the 
creditor to that third person. 
Loan contract 
73B. For the purposes of section 73, "loan contract" means a 
contract under which a person in the course of a business carried on 
by that person provides or agrees to provide, whether on one or more 
occasions, credit to a consumer in one or more of the following ways: 
(a) by paying an amount to or in accordance with the instructions 
of the consumer; 
(b) by applying an amount in satisfaction or reduction of an 
amount owed to the person by the consumer; 
(c) by varying the terms of a contract under which money owed to 
the person by the consumer is payable; 
(d) by deferring an obligation of the consumer to pay an amount 
to the person; 
( e) by taking from the consumer a bill of exchange or other 
negotiable instrument on which the consumer (whether alone 
or with another person or other persons) is liable as drawer, 
acceptor or endorser. 
Warranties in relation to the supply of services 
74. (1) In every contract for the supply by a corporation in the 
course of a business of services to a consumer there is an implied 
warranty that the services will be rendered with due care and skill and 
that any materials supplied in connexion with those services will be 
reasonably fit for the purpose for which they are supplied. IP/~/l/~lJS/()/1 
Page 113 
Trade Practices Act 1974 
s.74A. 
(2) Where a corporation supplies services (other than services of a 
professional nature provided by a qualified architect or engineer) to a 
consumer in the course of a business and the consumer, expressly or 
by implication, makes known to the corporation any particular pur­
pose for which the services are required or the result that he desires 
the services to achieve, there is an implied warranty that the services 
supplied under the contract for the supply of the services and any 
materials supplied in connexion with those services will be reasonably 
fit for that purpose or are of such a nature and quality that they might 
reasonably be expected to achieve that result, except where the cir­
cumstances show that the consumer does not rely, or that it is un­
reasonable for him to rely, on the corporation's skill or judgment. 
(3) A reference in this section to services does not include a 
reference to services that are, or are to be, provided, granted or 
conferred under: 
(a) a contract for or in relation to the transportation or storage of 
goods for the purposes of a business, trade, profession or 
occupation carried on or engaged in by the person for whom 
the goods are transported or stored; or 
(b) a contract of insurance. 
Division 2A-Actions against Manufacturers and Importers of Goods 
Interpretation 
74A. (1) In this Division: 
"express warranty", in relation to goods, means an undertaking, asser­
tion or representation in relation to: 
(a) the quality, performance or characteristics of the goods; 
(b) the provision of services that are or may at any time be 
required in respect of the goods; 
(c) the supply of parts that are or may at any time be required for 
the goods; or 
(d) the future availability of identical goods, or of goods constitut­
ing or forming part of a set of which the goods in relation to 
which the undertaking, assertion or representation is given or 
made form part; 
given or made in connection with the supply of the goods or in 
connection with the promotion by any means of the supply or use of 
the goods, the natural tendency of which is to induce persons to 
acquire the goods; 
"manufactured" includes grown, extracted, produced, processed and 
assembled. IP/N/lIAUSIO/l 
Page 114' 
Trade Practices Act 1974 
(2) In this Division: s.74A. 
(a) a reference to goods shall, unless the contrary intention ap­
pears, be read as a reference to goods of a kind ordinarily 
acquired for personal, domestic or household use or consump­
tion; 
(aa) a reference to a person who acquires goods from a consumer 
does not include a reference to a person who acquires goods 
for the purpose of re-supply; 
(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 ac­
quisition 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 con­
ducted 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 purposes 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. Trade Practices Act 1974 
s.74B. IP/N/V AUS/Oll 
Page 115 
(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 permitted the 
name, brand or mark to be applied to the goods. 
(6) The reference in subsection (5) to a covering includes a 
reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or 
wrapper and the reference in that subsection to a label includes a 
reference to a band or ticket. 
(7) If goods are imported into Australia on behalf of a corpora­
tion, the corporation shall be deemed, for the purposes of this Di­
vision, 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 manufac­
tured 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 IP/~/1/j\{]S/()/1 
Page 116 
Trade Practices Act 1974 
s.74C. 
(e) the consumer or a person who acquires the goods from, or 
derives title to the goods through or under, 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 or that other 
person for the loss or damage and the consumer or that other person 
may recover the amount of the compensation by action against the 
corporation in a court of competent jurisdiction. 
(2) Subsection (1) does not apply: 
(a) if the goods are not reasonably fit for the purpose referred to 
in that subsection by reason of: 
(i) an act or default of any person (not being the corpora­
tion 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 corpora­
tion; 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 manufac­
tured 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 or a person who acquires the goods from, or 
derives title to the goods through or under, the consumer 
suffers loss or damage by reason that the goods do not cor­
respond with the description, the corporation is liable to 
compensate the consumer or that other person for the loss or 
damage and the consumer or that other person may recover 
the amount of the compensation by action against the corpora­
tion in a court of competent jurisdiction. 
(2) Subsection (1) does not apply if the goods do not correspond 
with the description referred to in that subsection 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; Trade Practices Act 1974 
s.74D. IPINIl! AUS/O/1 
Page 117 
occurring after the goods have left the control of the corporation. 
(3) A corporation is not liable to compensate a person for loss or 
damage suffered by the person 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 im­
plied. 
(4) If the goods referred to in subsection (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 subsection (1) by reason only that, 
being exposed for sale or hire, they are selected by the consumer. 
Actions in respect of goods of unmerchantable quality 
74D. (1) Where: 
(a) a corporation, in trade or commerce, supplies goods manufac­
tured 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 C otherwise than by 
way of sale by auction) to a consumer; 
(c) the goods are not of merchantable quality; and 
(d) the consumer or a person who acquires the goods from, or 
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 that other 
person for the loss or damage and the consumer or that other person 
may recover the amount of the compensation by action against the 
corporation in a court of competent jurisdiction. 
(2) Subsection (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 corpora­
tion or a servant or agent of the corporation); or 
Cii) a cause independent of hu~an control; IP/NIl/ AUS/Oll 
Page 118 
Trade Practices Act 1974 
s.74E. 
occurring after the goods have left the control of the corpora­
tion; 
(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 etc. 
74E. (1) Where: 
(a) a corporation, in trade or commerce, supplies goods manufac­
tured 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 
(e) the consumer or a person who acquires the goods from, or 
derives title to the goods through or under, 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 or that other 
person for the loss or damage and the consumer or that other person 
may recover the amount of the loss or damage by action against the 
corporation in a court of competent jurisdiction. Trade Practices Act 1974 
s.74F. IP/N/lIAUS/OIl 
Page 119 
(2) Subsection (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 corpora­
tion 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 
(ii) other circumstances that were beyond the control of 
the corporation and that it could not reasonably be 
expected to have foreseen. 
Actions in respect of failure to provide facilities for repairs or parts 
74F. (1) Where: 
(a) a corporation, in trade or commerce, supplies goods (otherwise 
than by way of sale by auction) manufactured by the corpora­
tion to a consumer; or 
(b) a corporation, in trade or commerce, supplies goods manufac­
tured by the corporation to another person who acquires the 
goods for re-supply and 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; 
and: 
(c) at a time (in this section referred to as the "relevant time") 
after the acquisition of the goods by the consumer: 
(i) the goods require to be repaired but facilities for their 
repair are not reasonably available to the consumer or 
a person who acquires the goods from, or derives title 
to the goods through or under, the consumer; or 
(ii) a part is required for the goods but the part is not 
reasonably available to the consumer or a person who 
acquires the goods from, or derives title to the goods 
through or under, the consumer; 
(d) the corporation acted unreasonably in failing to ensure that 
facilities for the repair of the goods were, or that the part was, 
reasonably available to the consumer or that other person at 
the relevant time; and IP/N/lI AUSIO/1 
Page 120 
Trade Practices Act 1974 
s.74F. 
(e) the consumer or that other person suffers loss or damage by 
reason of the failure of the corporation to ensure that facilities .. 
for the repair of the goods were, or that the part was, reason­
ably available to the consumer or that other person at the 
relevant time; 
the corporation is liable to compensate the consumer or that other 
person for the loss or damage and the consumer or that other person 
may recover the amount of the compensation by action against. the 
corporation in a court of competent jurisdiction. 
(2) Subsection (1) does not apply where the corporation took 
reasonable action to ensure that the consumer acquiring the goods 
would be given notice at or before the time when he acquired the 
goods that: 
(a) the corporation did not promise that facilities for the repair of 
the goods, or that parts for the goods, would be available; or 
(b) the corporation did not promise that facilities for the repair of 
the goods, or that parts for the goods, would be available after 
a specified period, being a period that expired before the 
relevant time. 
(3) Where the corporation took reasonable action to ensure that 
the consumer acquiring the goods would be given notice at or before 
the time when he acquired the goods that the corporation did not 
promise that: 
(a) facilities for the repair of the goods, being facilities of a kind 
specified in the notice, would be available; 
(b) parts for the goods, being parts of a kind specified in the 
notice, would be available; or 
(c) facilities for the repair of the goods would be available at, or 
parts for the goods would be available from, a place or places 
specified in the notice; 
the corporation is not liable to compensate the consumer or a person 
who acquires the goods from, or derives title to the goods through or 
under, the consumer for loss or damage suffered by the consumer or 
that other person by reason of the failure of the corporation to ensure 
that facilities of the kind specified in the notice, or parts of the kind 
specified in the notice, were available, or that facilities for the repair 
of the goods were available at, or parts for the goods were available 
from, a place or places specified in the notice, as the case may be. 
(4) In determining whether a corporation acted unreasonably in 
failing to ensure that facilities for the repair of goods were, or that a 
part was, reasonably available to a person at the relevant time, a court 
shall have regard to all the circumstances of the case, and in particular Trade Pracoces Act 1974 
s.74G. IP/~/1/J\lJS/()/1 
Page 121 
to the existence, at the relevant time, of circumstances that prevented 
those facilities or that part being so available, being circumstances 
beyond the control of the corporation. 
Actions in respect of non-compliance with express warranty 
74G. (1) Where: 
(a) a corporation, in trade or commerce, supplies goods (otherwise 
than by way of sale by auction) manufactured by the corpora­
tion to a consumer; or 
(b) a corporation, in trade or conlmerce, supplies goods manufac­
tured by the corporation to another person who acquires the 
goods for re-supply and 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; 
and: 
(c) the corporation fails to comply \\'ith an express warranty gh-en 
or made by the corporation in relation to the goods; and 
(d) the consumer or a person who acquires the goods from, or 
derives title to the goods through or under, the consumer 
suffers loss or damage by reason of the failure; 
the corporation is liable to compensate the consumer or that other 
person for the loss or damage and the consumer or that other person 
may recover the amount of the compensation by action against the 
corporation in a court of competent jurisdiction. 
(2) For the purposes of any action instituted by a person against a 
corporation under this section, where: 
(a) an undertaking, assertion or representation was given or made 
in connection with the supply of goods or in connection with 
the promotion by any means of the supply or use of goods; 
and 
(b) the undertaking, assertion or representation would, if it had 
been given or made by the corporation or a person acting on 
its behalf, have constituted an express warranty in relation to 
the goods; 
it shall be presumed that the undertaking, assertion or representation 
was given or made by the corporation or a person acting on its behalf 
unless the corporation proves that it did not give or make, and did not 
cause or permit the giving or making of, the undertaking, assertion or 
representation. IP/N/V AUS/Oll 
Page 122 
Trade Practices Act 1974 
Right of seller to recover against manufacturer or importer 
74H. Where: s.74H. 
(a) a person (in this section referred to as the "seller") is under a 
liability to another person (in this section referred to as the 
"consumer") in respect of loss or damage suffered by the 
consumer as a result of a breach of a condition or warranty 
implied by a provision of Division 2 in a contract for the 
supply of goods (whether or not the goods are of a kind 
ordinarily acquired for personal, domestic or household use or 
consumption) by the seller to the consumer; and 
(b) a third person (in this section referred to as the "manufac­
turer"): 
(i) is liable to compensate the consumer in respect of the 
same loss or damage by reason of a provision of this 
Division; or 
(ii) in a case where the goods referred to in paragraph (a) 
are not of a kind ordinarily acquired for personal, 
domestic or household use or consumption-would, if 
the provisions of sections 74B, 74C, 74D and 74E 
applied in relation to those goods, be liable to com­
pensate the consumer in respect of the same loss or 
damage by reason of any of those provisions; 
the manufacturer is liable to indemnify the seller in respect of the 
liability of the seller to the consumer and the seller may, in respect of 
the manufacturer's liability to indemnify the seller, institute an action 
against the manufacturer in a court of competent jurisdiction for such 
legal or equitable relief as the seller could have obtained if the liability 
of the manufacturer to indemnify the seller had arisen under a 
contract of indemnity made between the manufacturer and the seller. 
Time for commencing actions 
74J. (1) Subject to this section, an action under a provision of this 
Division may be commenced at any time within 3 years after the day 
on which the cause of the action accrued. 
(2) For the purposes of this section, a cause of action shall be 
deemed to have accrued: 
(a) in the case of an action other than an action under section 
74H, on the day on which the consumer or a person who 
acquired the goods from, or derived title to the goods through 
or under, the consumer first became aware, or ought reason­
ably to have become aware: s.74K. Trade Practices Act 1974 IPINIl! AUS/O/I 
Page 123 
(i) in the case of an action under section 74B-that the 
goods were not reasonably fit for the purpose referred 
to in that section; 
(ii) in the case of an action under section 74C-that the 
goods did not correspond with the description referred 
to in that section; 
(iii) in the case of an action under section 74D-that the 
goods were not of merchantable quality; 
(iv) in the case of an action under section 74E-that the 
bulk of the goods did not correspond with the sample 
in quality or the goods had the defect referred to in 
that section; 
(v) in the case of an action under section 74F -that the 
goods required to be repaired or that the part was 
required for the goods, as the case may be; or 
(vi) in the case of an action under section 74G-of the 
failure of the corporation to comply with the express 
warranty referred to in that section; or 
(b) in the case of an action under section 74H, on: 
(i) the day, or the first day, as the case may be, on which 
the seller referred to in that section made a payment in 
respect of, or otherwise discharged in whole or in part, 
the liability of that seller to the consumer referred to 
in that section; or 
(ii) the day on which a proceeding was instituted by that 
consumer against that seller in respect of that liability 
or, if more than one such proceeding was instituted, 
the day on which the first such proceeding was 
instituted; 
whichever was the earlier. 
(3) In an action under a provision of this Division, it is a defence 
if the defendant proves that the action was not commenced within 10 
years after the time of the first supply to a consumer of the goods to 
which the action relates. 
Application of Division not to be excluded or modified 
74K. (1) Any term of a contract (including a term that is not set 
out in the contract but is incorporated in the contract by another term 
of the contract) that purports to exclude, restrict or modify, or has the 
effect of excluding, restricting or modifying, any liability of a person to 
compensate or indemnify another person that may arise under this 
Division, is void. IPINIl! AUSIO/1 
Page 124 
Trade Practices Act 1974 
s.74L. 
(2) A term of a contract shall not be taken to exclude, restrict or 
modify the application of a provision of this Division unless the term 
does so expressly or is inconsistent with that provision. 
(3) Nothing in this section applies to a term of contract referred to 
in subsection 74L (4). 
Limitation in certain circumstances of liability of manufacturer to 
seller 
74L. (1) Notwithstanding section 74H but subject to this section, 
in the case of goods other than goods of a kind ordinarily acquired for 
personal, domestic or household use or consumption, the liability 
under that section of a manufacturer to a seller is limited to a liability 
to pay to the seller an amount equal to: 
(a) the cost of replacing the goods; 
(b) the cost of obtaining equivalent goods; or 
(c) the cost of having the goods repaired; 
whichever is the lowest amount. 
(2) Subsection (1) does not apply in relation to particular goods if 
the seller establishes that it is not fair or reasonable for the liability of 
the manufacturer in respect of those goods to be limited as mentioned 
in subsection (I). 
(3) In determining for the purposes of subsection (2) whether or 
not it is fair or reasonable for the liability of a manufacturer to a seller 
in respect of goods to be limited as mentioned in subsection (1), a 
court shall have regard to all the circumstances of the case and, in 
particular, to: 
(a) the availability of suitable alternative sources of supply of the 
goods; 
(b) the availability of equivalent goods; and 
(c) whether the goods were manufactured, processed or adapted 
to the special order of the seller. 
(4) This section is subject to any term of a contract between the 
manufacturer and the seller imposing on the manufacturer a greater 
liability than the liability mentioned in subsection (I). 
(5) In this section, the expressions "manufactu.rer" and "seller" 
have the same respective meanings as in section 74H. Trade Practices Act 1974 
s.75. 
Division 3 -Miscellaneous IP/N/1/ ADS/O/l 
Page 125 
Saving of other laws and remedies 
75. (1) Except as provided by subsection (2), this Part is not 
intended to exclude or limit the concurrent operation of any law of a 
State or Territory. 
(2) Where an act or omission of a person is both an offence 
against section 79 and an offence under the law of a State or Territory 
and that person is convicted of either of those offences, he is not liable 
to be convicted of the other of those offences. 
(3) Except as expressly provided by this Part, nothing in this Part 
shall be taken to limit, restrict or otherwise affect any right or remedy 
a person would have had if this Part had not been enacted. 
Rescission of contracts 
75A. (1) Where: 
. (a) a corporation supplies goods to a consumer in the course of a 
business; and 
(b) there is a breach of a condition that is, by virtue of a provision 
of Division 2, implied in the contract for the supply of the 
goods; 
the consumer is, subject to this section, entitled to rescind the contract 
by: 
(c) causing to be served on the corporation a notice in writing 
signed by him giving particulars of the breach; or 
(d) causing the goods to be returned to the corporation and giving 
to the corporation, either orally or in writing, particulars of 
the breach. 
(2) Where a consumer purports to rescind under this section a 
contract for the supply of goods by a corporation, the purported 
rescission does not have any effect if: 
(a) the notice is not served or the goods are not returned within a 
reasonable time after the consumer has had a reasonable 
opportunity of inspecting the goods; 
(b) in the case of a rescission effected by service of a notice, after 
the delivery of the goods to the consumer but before the 
notice is served: 
(i) the goods were disposed of by the consumer, were lost, 
or were destroyed otherWise than by reason of a defect 
in the goods; IP/NIl/ AUS/O/l 
Page 126 
Trade Practices Act 1974 
s.75AA. 
(ii) the consumer caused the goods to become 
unmerchantable or failed to take reasonable steps to 
prevent the goods from becoming unmerchantable; or 
(iii) the goods were damaged by abnormal use; or 
(c) in the case of a rescission effected by return of the goods, 
while the goods were in the possession of the consumer: 
(i) the consumer caused the goods to become 
unmerchantable or failed to take reasonable steps to 
prevent the goods from becoming unmerchantable; or 
(ii) the goods were damaged by abnormal use. 
(3) Where a contract for the supply of goods by a corporation to a 
consumer has been rescinded in accordance with this section: 
(a) if the property in the goods had passed to the consumer before 
the notice of rescission was served on, or the goods were 
returned to, the corporation-the property in the goods 
re-vests in the corporation upon the service of the notice or 
the return of the goods; and 
(b) the consumer may recover from the corporation, as a debt, the 
amount or value of any consideration paid or provided by him 
for the goods. 
(4) The right of rescission conferred by this section is in addition 
to, and not in derogation of, any other right or remedy under this Act 
or any other Act, any State Act, any law of a Territory or any rule of 
law. 
PART VA-LIABILITY OF MANUFACTURERS AND IMPORTERS 
FOR DEFECTIVE GOODS . 
Interpretation 
75AA. In this Part: 
"action goods", in relation to a liability action, means the goods whose 
supply and defect is alleged in the action; 
"Commonwealth mandatory standard", in relation to goods, means a 
mandatory standard in respect of the goods imposed by a law of the 
Commonwealth; 
"defendant", in relation to a liability action, means a person against 
whom the action is brought (however described); 
"liability action" means an action under section 75AD, 75AE, 75AF or 
75AG and includes such an action because of paragraph 75AD (1) (f) 
or section 75AH; 
"loss" includes damage; Trade Practices Act 1974 
s.75AB. IPINIl! AUSIO/1 
Page 127 
"mandatory standard", in relation to goods, means a standard: 
(a) for the goods or anything relating to the goods; and 
(b) that, under a law of the Commonwealth, a State or a Territory, 
must be complied with when the goods are supplied by their 
manufacturer, being a law creating an offence or liability 
where there is such non-compliance; 
but does not include a standard which may be complied with by 
meeting a higher standard; 
"manufactured" includes grown, extracted, produced, processed and 
assembled; 
"plaintiW', in relation to a liability action, means the person by whom 
the action is brought (however described); 
"use" includes consume. 
Certain interpretation provisions (importers and others taken to be 
manufacturers etc.) apply to this Part 
75AB. Subsections 74A (3) to (8) (inclusive) operate as if 
references in them to Division 2A of Part V included references to this 
Part. 
Meaning of goods having defect 
75AC. (1) For the purposes of this Part, goods have a 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 tinle when they were supplied by their manufacturer. 
(3) An inference that goods have a defect is not to be made only 
because of the fact that, after they were supplied by their manufac­
turer, safer goods of the same kind were supplied. IPINIl! AUSIO/l 
Page 128 
Trade Practices Act 1974 
s.75AD. 
(4) An inference that goods have a defect is not to be made only 
because: 
(a) there was compliance with a Commonwealth mandatory stan­
dard 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. 
Liability for defective goods causing injuries-loss by injured individual 
7SAD. If: 
(a) a corporation, in trade or commerce, supplies goods manufac­
tured by it; and 
(b) they have a defect; and 
(c) because of the defect, an individual suffers injuries; 
then: 
(d) the corporation is liable to compensate the individual for the 
amount of the individual's loss suffered as a result of the 
injuries; and 
(e) the individual may recover that amount by action against the 
corporation; and 
(f) if the individual dies because of the injuries-a law of a State 
or Territory about liability in respect of the death of 
individ uals applies as if: 
(i) the action were an action under the law of the State or 
Territory for damages in respect of the injuries; and 
(ii) the defect were the corporation's wrongful act, 
neglect or default. 
Liability for defective goods causing injuries-loss by person other than 
injured individual 
7SAE. (1) If: 
(a) a corporation, in trade or commerce, supplies goods manufac-
tured by it; and 
(b) they have a defect; and 
(c) because of the defect, an individual suffers injuries; and 
(d) a person, other than the individual, suffers loss because of: 
(i) the injuries; or 
(ii) if the individual dies because of the injuries- the in­
dividual's death; and 
(e) the loss does not come about because of a business 
relationship between the person and the individual; s.75AF. 
then: Trade Practices Act 1974 IP/N/l! AUS/O/l 
Page 129 
(f) the corporation is liable to compensate the person for the 
amount of the person's loss; and 
(g) the person may recover that amount by action against the 
corporation. 
(2) For the purposes of this section: 
(a) a profession is taken to be a business; and 
(b) a relationship between employer and employee or a similar 
. relationship is a business relationship. 
Liability for defective goods -loss relating to other goods 
75AF. If: 
(a) a corporation, in trade or commerce, supplies goods manufac­
tured by it; and 
(b) they have a defect; and 
(c) because of the defect, the goods of a kind ordinarily acquired 
for personal, domestic or household use (not being the defec­
tive goods) are destroyed or damaged; and 
(d) a person who: 
then: (i) so used; or 
(ii) intended to so use; 
the destroyed or damaged goods, suffers loss as a result of the 
destruction or damage; 
(e) the corporation is liable to compensate the person for the 
amount of the loss; and 
(f) the person may recover that amount by action against the 
corporation. 
Liability for defective goods-loss relating to buildings etc. 
75AG. If: 
(a) a corporation, in trade or commerce, supplies goods manufac­
tured by it; and 
(b) they have a defect; and 
(c) because of the defect, land, buildings, or fixtures, ordinarily 
acquired for private use are destroyed or damaged; and 
(d) a person who: 
(i) so used; or 
(ii) intended to so use; IPINIl! AUSIO/l 
Page 130 
Trade Practices Act 1974 
s.7SAH. 
the land, buildings or fixtures, suffers loss as a result of the 
destruction or damage; 
then: 
(e) the corporation is liable to compensate the person for the 
amount of the loss; and 
(f) the person may recover that amount by action against the 
corporation. 
Survival of liability actions 
75AH. A law of a State or Territory about the survival of causes of 
action vested in persons who die applies to actions under section 
75AD, 75AE, 75AF or 75AG. 
No liability action where workers' compensation or law giving effect to 
an international agreement applies 
7SAI. Section 75AD, 75AE, 75AF or 75AG does not apply to a 
loss in respect of which an amount has been, or could be, recovered 
under a law of the Commonwealth, a State or a Territory that: 
(a) relates to workers' compensation; or 
(b) gives effect to an international agreement. 
Unidentified manufacturer 
7SAJ. (1) If a person who wishes to institute a liability action does 
not know who manufactured the action goods, the person may serve 
on a supplier, or each supplier, of the action goods who is known to 
the person a written request to give the person particulars identifying: 
(a) the corporation which manufactured the goods (having regard 
to section 75AB); or 
(b) the supplier of the goods to the supplier requested. 
(2) If, 30 days after the person has made the request or requests, 
the person still does not know who manufactured the action goods, 
then the corporation, or each corporation, that is a supplier: 
(a) to whom a request was made; and 
. (b) who did not comply with the request; 
is taken, for the purposes of the action, to have manufactured the 
action goods. s.7SAK. 
Defences Trade Practices Act 1974 IP/N/1/ AUS/Oll 
Page 131 
7SAK. (1) In a liability action, it is a defence if it is established 
that: 
(a) the defect in the action goods that is alleged to have caused 
the loss did not exist at the supply time; or 
(b) they had that defect only because there was compliance with a 
mandatory standard for them; or 
(c) the state of scientific or technical knowledge at the time when 
they were supplied by their actual manufacturer was not such 
as to enable that defect to be discovered; or 
(d) if they were comprised in other goods ("finished goods") 
-that defect is attributable only to: 
(i) the design of the finished goods; or 
(ii) the markings on or accompanying the finished goods; 
or 
(iii) the instructions or warnings given by the manufacturer 
of the finished goods. 
(2) In this section: 
"supply time" means: 
(a) in relation to electricity-the time at which it was generated, 
being a time before it was transmitted or distributed; or 
(b) in relation to other goods-the time when they were supplied 
by their actual manufacturer. 
Commonwealth liability for goods that are defective only because of 
compliance with Commonwealth mandatory standard 
7SAL. (1) If a defendant in a liability action raises the defence 
that the action goods had the alleged defect only because there was 
compliance with a Commonwealth mandatory standard for them, that 
defendant must, as soon as practicable after raising that defence, serve 
on the Commonwealth a prescribed notice of the action and of that 
defence together with a copy of that defendant's defence in the action. 
(2) Service of the notice and defence makes the Commonwealth a 
defendant in the action. 
(3) If, in the action, the Court finds that the plaintiff would have 
succeeded against the defendant who served the notice but for the 
action goods having the alleged defect only because there was compli­
ance with a Commonwealth mandatory standard for them, then: 
(a) the Commonwealth, and not the ,defendant who served the 
notice, is liable to pay the plaintiff for the amount of the loss 
caused by the defect; and IP/N/l/AUS/O/1 
Page 132 
Trade Practices Act 1974 
s.7SAM. 
(b) the Court is to enter judgment against the Commonwealth for 
that amount; and 
(c) the Court may make such orders for costs as the Court 
considers just. 
Liability joint and several 
75AM. If 2 or more corporations are liable under section 75AD, 
75AE, 75AF or 75AG for the same loss they are jointly and severally 
liable. 
Contributory acts or omissions to reduce compensation 
75AN. (1) If the loss in a liability action under section 75AD or 
75AE was caused by both: 
(a) an act or omission of the individual who suffers the injuries 
concerned; and 
(b) a defect of the action goods; 
the amount of the loss is to be reduced to such extent (which may be 
to nil) as the court thinks fit having regard to that individual's share in 
causing the loss. 
(2) If the loss in a liability action under section 75AF or 75AG 
was caused by both: 
(a) an act or omission of the person who suffered the loss; and 
(b) a defect of the action goods; 
the amount of the loss is to be reduced to such extent (which may be 
to nil) as the court thinks fit baving regard to the person's share in 
causing the loss. 
(3) For the purposes of this section, the acts and omissions of a 
person who is responsible for another person include the acts and 
omissions of that other person. 
Time for commencing actions 
75AO. (1) Subject to subsection (2), a person may commence a 
liability action at any time within 3 years after the time the person 
became aware, or ought reasonably to have become aware, of the 
alleged loss, the defect and the identity of the person who manufac­
tured the action goods. 
(2) A liability action must be commenced within 10 years of the 
supply by the manufacturer of the action goods. Trade Practices Act 1974 
s.7SAP. IPINIl! AUS/O/l 
Page 133 
Application of provisions not to be excluded or modified 
7SAP. (1) Any term of a contract (including a term that is not set 
out in the contract but is incorporated in the contract by another 
term) that purports to exclude, restrict or modify, or has the effect of 
excluding, restricting or modifying: 
(a) the application of all or any of the provisions of this Part; or 
(b) the exercise of a right conferred by any of those provisions; or 
(c) any liability under any of those provisions; 
is void. 
(2) A term of a contract is not taken to exclude, restrict or modify 
the application of a provision of this Part unless the term does so 
expressly or is inconsistent with that provision. 
Representative actions by the Trade Practices Commission 
7SAQ. (1) The Commission may, by application, commence a 
liability action on behalf of one or more persons identified in the 
application who has suffered the loss for whose amount the action is 
commenced. 
(2) The Commission may only make an application under this 
section if it has obtained the written consent of the person, or each of 
the persons, on whose behalf the application is being made. 
Saving of other laws and remedies 
7SAR. (1) This Part is not intended to exclude or limit the 
concurrent operation of any law, whether written or unwritten, in force 
in a State or Territory. 
(2) This Part is not to be taken to limit, restrict or otherwise affect 
any right or remedy a person would have had if this Part had not been 
enacted. 
Jurisdiction of courts 
7SAS. Subsection 75B (2) and sections 86, 86A and 86B operate in 
relation to an action under this Part as if: 
(a) references in them to Part VI included references to this Part; 
and 
(b) references in them to Division 1 or lA of Part V included 
references to this Part; and 
( c) references in them to the Minister were omitted. IP/N/l/AUS/O/1 
Page 134 
Trade Practices Act 1974 
PART VI-ENFORCEMENT AND REMEDIES 
Interpretation s.75B. 
75B. (1) A reference in this Part to a person involved in a 
contravention of a provision of Part IV, IV A or V shall be read as a 
reference to a person who: 
(a) has aided, abetted, counselled or procured the contravention; 
(b) has induced, whether by threats or promises or otherwise, the 
contravention; 
(c) has been in any way, directly or indirectly, knowingly con-
cerned in, or party to, the contravention; or 
(d) has conspired with others to effect the contravention. 
(2) In this Part, unless the contrary intention appears: 
(a) a reference to the Court in relation to a matter is a reference 
to any court having jurisdiction in the matter; 
(b) a reference to the Federal Court is a reference to the Federal 
Court of Australia; and 
(c) a reference to a judgment is a reference to a judgment, decree 
or order, whether final or interlocutory. 
Pecuniary penalties 
76. (1) If the Court is satisfied that a person: 
(a) has contravened a provision of Part IV; 
(b) has attempted to contravene such a provision; 
(c) has aided, abetted, counselled or procured a person to con­
travene such a provision; 
(d) has induced, or attempted to induce, a person, whether by 
threats or promises or otherwise, to contravene such a provi­
sion; 
(e) has been in any way, directly or indirectly, knowingly con­
cerned in, or party to, the contravention by a person of such a 
provision; or 
(f) has conspired with others to contravene such a provision; 
the Court may order the person to pay to the Commonwealth such 
pecuniary penalty, in respect of each act or omission by the person to 
which this section applies, as the Court determines to be appropriate 
having regard to all relevant matters including the nature and extent of 
the act or omission and of any loss or damage suffered as a result of 
the act or omission, the circumstances in which the act or omission 
took place and whether the person has previously been found by the 
Court in proceedings under this Part to have engaged in any similar 
conduct. Trade Practices Act 1974 
s.77. IPINll! ADSIO/1 
Page 135 
(lA) The pecuniary penalty payable under subsection (1) by a 
body corporate is not to exceed $10,000,000 for each act or omission to 
which this section applies. 
(IB) The pecuniary penalty payable under subsection (1) by a 
person other than a body corporate is not to exceed $500,000 for each 
act or omission to which this section applies. 
(3) If conduct constitutes a contravention of two or more provi­
sions of Part IV, a proceeding may be instituted under this Act against 
a person in relation to the contravention of anyone or more of the 
provisions but a person is not liable to more than one pecuniary 
penalty under this section in respect of the same conduct. 
Civil action for recovery of pecuniary penalties 
77. (1) The Minister or the Commission may institute a proceed­
ing in the Court for the recovery on behalf of the Commonwealth of a 
pecuniary penalty referred to in section 76. 
(2) A proceeding under subsection (1) may be commenced within 
6 years after the contravention. 
Criminal proceedings not to be brought for contraventions of Part IV 
78. Criminal proceedings do not lie against a person by reason 
only that the person: 
(a) has contravened a provision of Part IV; 
(b) has attempted to contravene such a provision; 
(c) has aided, abetted, counselled or procured a person to con­
travene such a provision; 
(d) has induced, or attempted to induce, a person, whether by 
threats or promises or otherwise, to contravene such a provi­
sion; 
(e) has been in any way, directly or indirectly, knowingly con­
cerned in, or party to, the contravention by a person of such a 
provision; or 
(t) has conspired with others to contravene such a provision. 
Offences against Part V 
79. (1) A person who: 
(a) contravenes; 
(b) aids, abets, counsels or procures a person to contravene; 
(c) induces, or attempts to induce, a person whether by threats or 
promises or otherwise, to contravene; 
(d) is in any way, directly or indirectly, knowingly concerned in, 
or party to, the contravention by a person of; or IP/N/l! AUS/Oll 
Page 136 
Trade Practices Act 1974 
(e) conspires with others to contravene; s.79. 
a provision of Part V other than section 52, 65Q or 65R or subsection 
65F (9) is guilty of an offence punishable on conviction: 
(f) in the case of a person not being a body corporate- by a fine 
not exceeding $40,000; or 
(g) in the case of a person being a body corporate- by a fine not 
exceeding $200,000. 
(2) Where a person is convicted of two or more offences 'con­
stituted by, or relating to, contraventions of the same provision of Part 
V, being contraventions that appear to the Court to have been of the 
same nature or a substantially similar nature and to have occurred at 
or about the same time (whether or not the person is also convicted of 
an offence or offences constituted by, or relating to, another con­
travention or other contraventions of that provision that were of a 
different nature or occurred at a different time), the Court shall not, in 
respect of the first-mentioned offences, impose on the person fines 
that, in the aggregrate, exceed the maximum fine that would be 
applicable in respect of one offence by that person against that 
provision. 
(3) Where: 
(a) a person is convicted of an offence constituted by, or relating 
to, a contravention of a provision of Part V; and 
(b) a fine has, or fines have, previously been imposed on the 
person by the Court for an offence or offences constituted by, 
or relating to, another contravention or other contraventions 
of the same provision, being a contravention that, or con­
traventions each of which, appears to the Court to have been 
of the same nature as, or of a substantially similar nature to, 
and to have occurred at or about the same time as, the 
first-mentioned contravention (whether or not a fine has, or 
fines have, also previously been imposed on the person for an 
offence or offences constituted by, or relating to, a contraven­
tion or contraventions of that provision that were of a different 
nature or occurred at a different time); 
the Court shall not, in respect of the offence mentioned in paragraph 
(a), impose on the person a fine that exceeds the amount (if any) by 
which the maximum fine applicable in respect of that offence under 
subsection (1) is greater than the amount of the fine, or the sum of the 
amounts of the fines, first referred to in paragraph (b). 
(4) In proceedings under this section against a person for con­
travening a provision of Part V, the Court may: 
(a) grant an injunction under section 80 against the person in 
relation to: s.79A. Trade Practices Act 1974 IPIN/V AUS/O/l 
Page 137 
(i) the conduct that constitutes, or is alleged to constitute, 
the contravention; or 
(ii) other conduct of that kind; or 
(b) make an order under section 80A in relation to the contraven­
tion. 
(5) Sections 5, 7 and 7 A of the Crimes Act 1914 do not apply in 
relation to an offence against subsection (1). 
(6) A prosecution for an offence against subsection (1) may be 
commenced within 3 years after the commission of the offence. 
Enforcement and recovery of certain fines 
79A. (1) Where a person on whom a fine has been imposed for an 
offence against section 65Q, 65R, 79 or 155 or subsection 65F (9) or 
87 A (5) defaults in payment of the fine, a Court may: 
(a) exercise any power that the Court has apart from this section 
with respect to the enforcement and recovery of fines imposed 
by the Court; or 
(b) make an order, on the application of the Minister or the 
Commission, declaring that the fine is to have effect, and may 
be enforced, as if it were a judgment debt under a judgment of 
the Court. 
(2) Where a person in relation to whom an order is made under 
subsection (1) in respect of a fine gives security for the payment of the 
fine, the Court shall cancel the order in respect of the fine. 
(3) Where the Court makes an order in relation to a person in 
respect of a fine, the Court may, at any time before the order is 
executed in respect of the fine, allow the person a specified time in 
which to pay the fine or allow the person to pay the fine by specified 
instalments, and, in that case: 
(a) the order shall not be executed unless the person fails to pay 
the fine within that time or fails to pay an instalment at or 
before the time when it becomes payable, as the case may be; 
and 
(b) if the person pays the fine within that time or pays all the 
instalments, as the case may be, the order shall be deemed to 
have been discharged in respect of the fine. 
(4) Subject to subsection (7), an order under subsection (1) in 
respect of a fine ceases to have effect: 
(a) on payment of the fine; or 
(b) if the fine is not paid-on full compliance with the order. IP/N/1/AUSIO/1 
Page 138 
Trade Practices Act 1974 
s.80. 
(5) The term of a sentence of imprisonment imposed by an order 
under a law of a State or Territory applied by section I8A of the 
Crimes Act 1914 in respect of a fine shall be calculated at the rate of 
one day's imprisonment for each $25 of the amount of the fine that is 
from time to time unpaid. 
(6) Subject to subsection (7), where a person is required to serve 
periods of imprisonment by virtue of an order or orders under sub­
section (1) in respect of 2 or more fines, those periods of imprison­
ment shall be served consecutively. 
(7) Subject to subsection (8), where: 
(a) a person would, but for this subsection, be required by virtue 
of an order or orders under subsection (1) in respect of 3 or 
more fines to serve periods of imprisonment in respect of 
those fines exceeding in the aggregate 3 years; and 
(b) those fines were imposed (whether or not in the same pro­
ceedings) for offences constituted by contraventions that oc­
curred within a period of 2 years, being contraventions that 
appear to the Court to have been of the same nature or a 
substantially similar nature; 
the Court shall, by order, declare that the order or orders shall cease 
to have effect in respect of those fines after the person has served an 
aggregate of 3 years' imprisonment in respect of those fines. 
(8) Where subsection (7) would, but for this subsection, apply to a 
person with respect to offences committed by the person within 2 or 
more overlapping periods of 2 years, the Court shall make an order 
under that subsection with respect to one only of those periods, being 
whichever period would give the person the maximum benefit from the 
application of that subsection. 
(9) For the purposes of subsection (8), the Court may vary or 
revoke an order made under subsection (7). 
(10) Paragraphs 18A (1) (b), (c) and (d) of the Crimes Act 1914 do 
not apply with respect to fines referred to in subsection (1). 
(11) This section applies only in relation to fines imposed for 
offences committed after the commencement of this section. 
Inj unctions 
80. (1) Subject to subsections (lA) and (IB), where, on the 
application of the Minister, the Commission or any other person, the 
Court is satisfied that a person has engaged, or is proposing to engage, 
in conduct that constitutes or would constitute: 
(a) a contravention of a provision of Part IV, IV A or V; 
(b) attempting to contravene such a provision; Trade Practices Act 1974 IP/N/l! AUSIO/l 
Page 139 
s.80. 
(c) aiding, abetting, counselling or procuring a person to con­
travene such a provision; 
(d) inducing, or attempting to induce, whether by threats, prom­
ises or otherwise, a person to contravene such a provision; 
(e) being in any way, directly or indirectly, knowingly concerned 
in, or party to, the contravention by a person of such a 
provision; or 
(f) conspiring with others to contravene such a provision; 
the Court may grant an injunction in such terms as the Court deter­
mines to be appropriate. 
(IAA) Where an application for an injunction under subsection (1) 
has been made, whether before or after the commencement of this 
subsection, the Court may, if the Court determines it to be appro­
priate, grant an injunction by consent of all the parties to the proceed­
ings, whether or not the Court is satisfied that a person has engaged, or 
is proposing to engage, in conduct of a kind mentioned in subsection 
(1). 
(lA) Subject to subsection (1B), a person other than the Minister 
or the Commission is not entitled to make an application under 
subsection (1) for an injunction by reason that a person has con­
travened or attempted to contravene or is proposing to contravene, or 
has been or is proposing to be involved in a contravention of, section 
50 or 50A. 
(IB) Where the Tribunal has, on the application of a person (in 
this subsection referred to as the "applicant") other than the Minister 
or the Commission, made a declaration under subsection 50A (1) in 
relation to the acquisition by a person of a controlling interest in a 
corporation, the applicant is entitled to make an application under 
subsection (1) for an injunction by reason that the corporation has 
contravened or attempted to contravene or is proposing to contravene 
subsection 50A (6) in relation to that declaration. 
(2) Where in the opinion of the Court it is desirable to do so, the 
Court may grant an interim injunction pending determination of an 
application under subsection (1). 
(3) The Court may rescind or vary an injunction granted under 
subsection (1) or (2). 
(4) The power of the Court to grant an injunction restraining a 
person from engaging in conduct may be exercised: 
(a) whether or not it appears to the Court that the person intends 
to engage again, or to continue to engage, in conduct of that 
kind; IP/N/l! AUS/O/I 
Page 140 
Trade Practices Act 1974 
s.80A. 
(b) whether or not the person has previously engaged in conduct 
of that kind; and 
(c) whether or not there is an imminent danger of substantial 
damage to any person if the first-mentioned person engages in 
conduct of that kind. 
(5) The power of the Court to grant an injunction requiring a 
person to do an act or thing may be exercised: 
(a) whether or not it appears to the Court that the person intends 
to refuse or fail again, or to continue to refuse or fail, to do 
that act or thing; 
(b) whether or not the person has previously refused or failed to 
do that act or thing; and 
(c) whether or not there is an imminent danger of substantial 
damage to any person if the first-mentioned person refuses or 
fails to do that act or thing. 
(6) Where the Minister or the Commission makes an application 
to the Court for the grant of an injunction under this section, the 
Court shall not require the applicant or any other person, as a 
condition of granting an interim injunction, to give any undertakings as 
to damages. 
(7) Where: 
(a) in a case to which subsection (6) does not apply the Court 
would, but for this subsection, require a person to give an 
undertaking as to damages or costs; and 
(b) the Minister gives the undertaking; 
the Court shall accept the undertaking by the Minister and shall not 
require a further undertaking from any other person. 
Order to disclose information or publish advertisement 
80A. (1) Without limiting the generality of section 80, where, on 
the application of the Minister or the Commission, the Court is 
satisfied that a person has engaged in conduct constituting a contraven­
tion of a provision of Part V, the Court may make either or both of 
the following orders: 
(a) an order requiring that person or a person involved in the 
contravention to disclose to the public, to a particular person 
or to persons included in a particular class of persons, in such 
manner as is specified in the order, such information, or 
information of such a kind, as is so specified, being informa­
tion that is in the possession of the person to whom the order 
is directed or to which that last-mentioned person has access; Trade Practices Act 1974 
s.81. IP/N/l! ADS/Oil 
Page 141 
(b) an order requInng that person or a person involved in the 
contravention to publish, at his own expense, in a manner and 
at times specified in the order, advertisements the terms of 
which are specified in, or are to be determined in accordance 
with, the order. 
Divestiture 
81. (1) The Court may, on the application of the Minister, the 
Commission or any other person, if it finds, or has in another proceed­
ing instituted under this Part found, that a person has contravened 
section 50, by order, give directions for the purpose of securing the 
disposal by the person of all or any of the shares or assets acquired in 
contravention of that section. 
(lA) Where: 
(a) the Court finds, in a proceeding instituted under this Part, that 
a person (in this subsection referred to as the "acquirer") has 
acquired shares in the capital of a body corporate or any assets 
of a person in contravention of section 50; 
(b) the Court finds, whether in that proceeding or any other 
proceeding instituted under this Part, that the person (in this 
section referred to as the "vendor") from whom the acquirer 
acquired those shares or those assets, as the case may be, was 
involved in the contravention; and 
( c) at the time when the finding referred to in paragraph (b) is 
made, any of those shares or those assets, as the case may be, 
are vested in the acquirer or, if the acquirer is a body cor­
porate, in any body corporate that is related to the acquirer; 
the Court may, on the application of the Minister or the Commission, 
declare that the acquisition, in so far as it relates to the shares or assets 
referred to in paragraph (c), is void as from the day on which it took 
place and, where the Court makes such a declaration: 
(d) the shares or the assets to which the declaration relates shall 
be deemed not to have been disposed of by the vendor; and 
(e) the vendor shall refund to the acquirer any amount paid to the 
vendor in respect of the acquisition of the shares or assets to 
which the declaration relates. 
(1 B) Where a declaration has been made under subsection 50A (1) 
in relation to the obtaining of a controlling interest in a corporation, 
or in each of 2 or more corporations, the Court may, on the applica­
tion of the Minister or the Commis~ion, if it finds, or has in a 
proceeding instituted under section 80 found, that that corporation, or 
any of those corporations, as the case may be (in this subsection 
referred to as the "relevant corporation"), has contravened subsection IP/N/l/ AUS/O/1 
Page 142 
Trade Practices Act 1974 
s.82. 
50A (6), by order, for the purpose of ensuring that the obtaining of 
that controlling interest ceases to have the result referred to in para­
graph 50A (1) (a), direct the relevant corporation to dispose of such of 
its assets as are specified in the order within such period as is so 
specified. 
(le) Where an application is made to the Court for an order 
under subsection (1) or a declaration under subsection (lA), the Court 
may, instead of making an order under subsection (1) for the purpose 
of securing the disposal by a person of shares or assets or an order 
under subsection (lA) that the acquisition by a person of shares or 
assets is void, accept, upon such conditions (if any) as the Court thinks 
fit, an undertaking by the person to dispose of other shares or assets 
owned by the person. 
(2) An application under subsection (1), (lA) or (lB) may be 
made at any time within 3 years after the date on which the contraven­
tion occurred. 
(3) Where an application for directions under subsection (1) or for 
a declaration under subsection (lA) has been made, whether before or 
after the commencement of this subsection, the Court may, if the 
Court determines it to be appropriate, give directions or make a 
declaration by consent of all the parties to the proceedings, whether or 
not the Court has made the findings referred to in subsections (1) and 
(lA). 
Actions for damages 
82. (1) A person who suffers loss or damage by conduct of 
another person that was done in contravention of a provision of Part 
IV or V may recover the amount of the loss or damage by action 
against that other person or against any person involved in the 
contravention. 
(2) An action under subsection (1) may be commenced at any 
time within 3 years after the date on which the cause of action 
accrued. 
Finding in proceedings to be evidence 
83. In a proceeding against a person under section 82 or in an 
application under subsection 87 (lA) for an order against a person, a 
finding of any fact by a court made in proceedings under section 77, 
80, BOA or 81, or for an offence against section 79, in which that 
person has been found to have contravened, or to have been involved 
in a contravention of, a provision of Part IV, IV A or V is prima facie 
evidence of that fact and the finding may be proved by production of a 
document under the seal of the court from which the finding appears. Trade Practices Act 1974 
s.84. 
Conduct by directors, servants or agents IP/N/l! AUS/O/l 
Page 143 
84.. (1) Where, in a proceeding under this Part in respect of 
conduct engaged in by a body corporate, being conduct in relation to 
which section 46 or 46A or Part IV A or V applies, it is necessary to 
establish the state of mind of the body corporate, it is sufficient to 
show that a director, servant or agent of the body corporate, being a 
director, servant or agent by whom the conduct was engaged in within 
the scope of the person's actual or apparent authority, had that state of 
mind. 
(2) Any conduct engaged in on behalf of a body corporate: 
(a) by a director, servant or agent of the body corporate within 
the scope of the person's actual or apparent authority; or 
(b) by any other person at the direction or with the consent or 
agreement (whether express or implied) of a director, servant 
or agent of the body corporate, where the giving of the 
direction, consent or agreement is within the scope of the 
actual or apparent authority of the director, servant or agent; 
shall be deemed, for the purposes of this Act, to have been engaged in 
also by the body corporate. 
(3) Where, in a proceeding under this Part in respect of conduct 
engaged in by a person other than a body corporate, being conduct in 
relation to which a provision of Part IV A or V applies, it is necessary 
to establish the state of mind of the person, it is sufficient to show that 
a servant or agent of the person, being a servant or agent by whonl the 
conduct was engaged in within the scope of the servant's or agent's 
actual or apparent authority, had that state of mind. 
(4) Conduct engaged in on behalf of a person other than a body 
corporate: 
(a) by a servant or agent of the person within the scope of the 
actual or apparent authority of the servant or agent; or 
(b) by any other person at the direction or with the consent or 
agreement (whether express or implied) of a servant or agent 
of the first-mentioned person, where the giving of the direc­
tion, consent or agreement is within the scope of the actual or 
apparent authority of the servant or agent; 
shall be deemed, for the purposes of this Act, to have been engaged in 
also by the first-mentioned person. 
(5) A reference in this section to the state of mind of a person 
includes a reference to the knowledge, intention, opinion, belief or 
purpose of the person and the person's reasons for the person's 
intention, opinion, belief or purpose. IP/N/1/ AUS/O/l 
Page 144 
Trade Practices Act 1974 
s.8S. 
Defences 
85. (1) Subject to subsection (2), in a prosecution under this Part 
in relation to a contravention of a provision of Part V, it is a defence if 
the defendant establishes: 
(a) that the contravention in respect of which the proceeding was 
instituted was due to reasonable mistake; 
(b) that the contravention in respect of which the proceeding was 
instituted was due to reasonable reliance on information sup­
plied by another person; or 
(c) that: 
(i) the contravention in respect of which the proceeding 
was instituted was due to the act or default of another 
person, to an accident or to some other cause beyond 
the defendant's control; and 
(ii) the defendant took reasonable precautions and ex­
ercised due diligence to avoid the contravention. 
(lA) In paragraphs (1) (b) and (c), "another person" does not 
include a person who was: 
(a) a servant or agent of the defendant; or 
(b) in the case of a defendant being a body corporate, a director, 
servant or agent of the defendant; 
at the time when the contravention occurred. 
(2) If a defence provided by subsection (1) involves an allegation 
that a contravention was due to reliance on information supplied by 
another person or to the act or default of another person, the defen­
dant is not, without leave of the Court, entitled to rely on that defence 
unless he has, not later than 7 days before the day on which the 
hearing of the proceeding commences, served on the person by whom 
the proceeding was instituted a notice in writing giving such informa­
tion that would identify or assist in the identification of the other 
person as was then in his possession. 
(3) In a proceeding under this Part in relation to a contravention 
of a provision of Part V committed by the publication of an adver­
tisement, it is a defence if the defendant establishes that he is a person 
whose business it is to publish or arrange for the publication of 
advertisements and that he received the advertisement for publication 
in the ordinary course of business and did not know and had no 
reason to suspect that its publication would amount to a contravention 
of a provision of that Part. Trade Practices Act 1974 
s.86. IP/N/lI AUS/O/I 
Page 145 
(4) In a proceeding under this Part in relation to a contravention 
of Part V committed by the supplying of goods that did not comply 
with a consumer product safety standard or in relation to which the 
supplier did not comply with a consumer product information stan­
dard, it is a defence if the defendant establishes: 
(a) that the goods were acquired by him for the purpose of 
re-supply and were so acquired from a person who carried on 
in Australia a business of supplying such goods otherwise than 
as the agent of a person outside Australia; and 
(b) that he did not know, and could not with reasonable diligence 
have ascertained, that the goods did not comply with that 
standard or that he had not complied with that standard in 
relation to the goods, as the case may be, or he relied in good 
faith on a representation by the person from whom he ac­
quired the goods that a consumer product safety standard or a 
consumer product information standard, as the case may be, 
had not been prescribed in respect of the goods. 
(5) A person is not, without leave of the Court, entitled to rely on 
the defence provided by subsection (4) unless he has, not later than 7 
days before the day on which the hearing of the proceeding 
commences, served on the person by whom the proceeding was 
instituted a notice in writing identifying the person from whom he 
acquired the goods. 
(6) Where, in any proceedings under this Part against a person 
other than a body corporate, it appears to the Court that the person 
has or may have engaged in conduct in contravention of a provision of 
Part IV or in conduct referred to in paragraph 76 (1) (b), (c), (d), (e) 
or (f) but that the person acted honestly and reasonably and, having 
regard to all the circumstances of the case, ought fairly to be excused, 
the Court may relieve the person either wholly or partly from liability 
to any penalty or damages on such terms as the Court thinks fit. 
Jurisdiction of courts 
86. (1) Jurisdiction is conferred on the Federal Court in any 
matter arising under this Act in respect of which a civil proceeding 
has, whether before or after the commencement of this section, been 
instituted under this Part. 
(2) The several courts of the States are invested with federal 
jurisdiction within the limits of their several jurisdictions, whether 
those limits are as to locality, subject-matter or otherwise, and, subject 
to the Constitution, jurisdiction is conferred on the several courts of 
the Territories, with respect to any matter arising under Part IV A or 
Division 1 or lA of Part V in respect of whi~h a civil proceeding is 
instituted by a person other than the Minister or the Commission. IPINIl! AUSIO/l 
Page 146 
Trade Practices Act 1974 
s.86A. 
(3) Nothing in subsection (2) shall be taken to enable an inferior 
court of a State or Territory to grant a remedy other than a remedy of 
a kind that the court is able to grant under the law of that State or 
Territory. 
(4) The jurisdiction conferred by subsection (1) on the Federal 
Court is exclusive of the jurisdiction of any other court other than the 
jurisdiction of the several courts of the States and Territories under 
subsection (2) and the jurisdiction of the High Court under section 75 
of the Constitution. 
Transfer of matters 
86A. (1) Where: 
(a) a civil proceeding instituted (whether before or after the com­
mencement of this section) by a person other than the Min­
ister or the Commission is pending in the Federal Court; and 
(b) a matter for determination in the proceeding arose under Part 
IV A or Division 1 or lA of Part V; 
the Federal Court may, subject to subsection (2), upon the application 
of a party or of the Federal Court's own motion, transfer to a court of 
a State or Territory the matter referred to in paragraph (b) and may 
also transfer to that court any other matter for determination in the 
proceeding. 
(2) The Federal Court shall not transfer a matter to another court 
under subsection (1) unless the other court has power to grant the 
remedies sought before the Federal Court in the matter and it appears 
to the Federal Court that: 
(a) the matter arises out of or is related to a proceeding that is 
pending in the other court; or 
(b) it is otherwise in the interests of justice that the matter be 
determined by the other court. 
(3) Where the Federal Court transfers a matter to another court 
under subsection (1): 
(a) further proceedings in the matter shall be as directed by the 
other court; and 
(b) the judgment of the other court in the matter is enforceable 
throughout Australia and the external Territories as if it were a 
judgment of the Federal Court. 
(4) Where: 
. (a) a proceeding is pending in a court (other than the Supreme 
Court) of a State or Territory; and 
(b) a matter for determination in the proceeding arose under Part 
IV A or Division 1 or lA of Part V; Trade Practices Act 1974 
s.86B. IP/NIl! AUSIO/l 
Page 147 
the court shall, if directed to do so by the Federal Court, transfer to 
the Federal Court the matter referred to in paragraph (b) and such 
other matters for determination in the proceeding the determination of 
which would, apart from any law of a State or of the Northern 
Territory relating to cross-vesting of jurisdiction, be within the jurisdic­
tion of the Federal Court as the Federal Court determines. 
(5) Where: 
(a) a proceeding is pending in a court (other than the Supreme 
Court) of a State or Territory; and 
(b) a matter for determination in the proceeding arose under Part 
IV A or Division 1 or lA of Part V; 
the court may, subject to subsection (6), upon the application of a 
party or of the court's own motion, transfer to a court (other than the 
Supreme Court) of a State or Territory other than the State or 
Territory referred to in paragraph (a) the matter referred to in para­
graph (b). 
(6) A court shall not transfer a matter to another court under 
subsection (5) unless the other court has power to grant the remedies 
sought before the first-mentioned court in the matter and it appears to 
the first-mentioned court that: 
(a) the matter arises out of or is related to a proceeding that is 
pending in the other court; or 
(b) it is otherwise in the interests of justice that the matter be 
determined by the other court. 
(7) Where a court transfers a matter to another court under 
subsection (5), further proceedings in the matter shall be as directed 
by the other court. 
Transfer of certain proceedings to Family Court 
86B. (1) Subject to subsection (2), where: 
(a) a civil proceeding is pending in the Federal Court; and 
(b) a matter for determination in the proceeding arises under Part 
IV A or Division 1 or lA of Part V; 
the Federal Court may, on the application of a party to the proceeding 
or of its own motion, transfer the proceeding to the Family Court. 
(2) A proceeding that is pending in the Federal Court at the 
commencement of this section shall not be transferred to the Family 
Court unless the parties to the proceeding consent to the transfer. IPINIl! AUSIO/1 
Page 148 
Trade Practices Act 1974 
s.86B. 
(3) Subject to subsection (4), where a proceeding is transferred to 
the Family Court: 
(a) the Family Court has jurisdiction to hear and determine the 
proceeding; 
(b) the Family Court also has jurisdiction to hear and determine 
matters not otherwise within its jurisdiction (whether by virtue 
of paragraph (a) or otherwise): 
(i) that are associated with matters arising in the proceed­
ing; or 
(ii) that, apart from subsection 32 (1) of the Federal Court 
of Australia Act 1976, the Federal Court would have 
had jurisdiction to hear and determine in the proceed­
ing; 
(c) the Family Court may, in and in relation to the proceeding: 
(i) grant such remedies; 
(ii) make orders of such kinds; and 
(iii) issue, and direct the issue of, writs of such kinds; 
as the Federal Court could have granted, made, issued or 
directed the issue of, as the case may be, in and in relation to 
the proceeding; 
(d) remedies, orders and writs granted, made or issued by the 
Family Court in and in relation to the proceeding have effect, 
and may be enforced by the Family Court, as if they had been 
granted, made or issued by the Federal Court; 
(e) appeals lie from judgments of the Family Court given in and 
in relation to the proceeding as if the judgments were judg­
ments of the Federal Court constituted by a single Judge of 
that Court, and do not otherwise lie; and 
(f) subject to paragraphs (a) to (e) (inclusive), this Act, the 
regulations, the Federal Court of Australia Act 1976, the Rules 
of Court made under that Act, and other laws of the Common­
wealth, apply in and in relation to the proceeding as if: 
(i) a reference to the Federal Court (other than in the 
expression "the Court or a Judge") included a refer­
ence to the Family Court; 
(ii) a reference to a Judge of the Federal Court (other than 
in the expression "the Court or a Judge") included a 
reference to a Family Court Judge; 
(Hi) a reference to the expression "the Court or a Judge" 
when used in relation to the Federal Court included a 
reference to a Family Court Judge sitting in Chambers; s.87. Trade Practices Act 1974 IP/N/V AUS/O/1 
Page 149 
(iv) a reference to a Registrar of the Federal Court in­
cluded a reference to a Registrar of the Family Court; 
and 
(v) any other necessary changes were made. 
(4) Where any difficulty arises in the application of paragraphs (3) 
(c), (d) and (f) in or in relation to a particular proceeding, the Family 
Court may, on the application of a party to the proceeding or of its 
own motion, give such directions, and make such orders, as it 
considers appropriate to resolve the difficulty. 
(5) An appeal does not lie from a decision of the Federal Court in 
relation to the transfer of a proceeding under this Act to the Family 
Court. 
Other orders 
87. (1) Without limiting the generality of section 80, where, in a 
proceeding instituted under, or for an offence against, this Part, the 
Court finds that a person who is a party to the proceeding has 
suffered, or is likely to suffer, loss or damage by conduct of another 
person that was engaged in (whether before or after the commence­
ment of this subsection) in contravention of a provision of Part IV, 
IV A or V, the Court may, whether or not it grants an injunction under 
section 80 or makes an order under section 80A or 82, make such 
order or orders as it thinks appropriate against the person who 
engaged in the conduct or a person who was involved in the con­
travention (including all or any of the orders mentioned in subsection 
(2) of this section) if the Court considers that the order or orders 
concerned will compensate the first-mentioned person in whole or in 
part for the loss or damage or will prevent or reduce the loss or 
damage. 
(lA) Without limiting the generality of section 80, the Court may, 
on the application of a person who has suffered, or is likely to suffer, 
loss or damage by conduct of another person that was engaged in 
(whether before or after the commencement of this subsection) in 
contravention of a provision of Part IV A or V or on the application of 
the Commission in accordance with subsection (lB) on behalf of such 
a person or 2 or more such persons, make such order or orders as the 
Court thinks appropriate against the person who engaged in the 
conduct or a person who was involved in the contravention (including 
all or any of the orders mentioned in subsection (2» if the Court 
considers that the order or orders concerned will compensate the 
person who made the application, or the person or any of the persons 
on whose behalf the application was made, in whole or in part for the 
loss or damage, or will prevent or reduce the loss or damage suffered, 
or likely to be suffered, by such a person. IPINIl! AUSIO/l 
Page 150 
Trade Practices Act 1974 
s.87. 
(lB) Where, in a proceeding instituted for an offence against 
section 79 or instituted by the Commission or the Minister under 
section 80, a person is found to have engaged (whether before or after 
the commencement of this subsection) in conduct in contravention of 
a provision of Part IV A or V, the Commission may make an applica­
tion under subsection (lA) on behalf of one or more persons iden­
tified in the application who have suffered, or are likely to suffer, loss 
or damage by the conduct, but the Commission shall not make such an 
application except with the consent in writing given before the applica­
tion is made by the person, or by each of the persons, on whose behalf 
the application is made. 
(lC) An application may be made under subsection (lA) in 
relation to a contravention of Part IV A or V notwithstanding that a 
proceeding has not been instituted under another provision of this Part 
in relation to that contravention. 
(lCA) An application under subsection (lA) may be commenced: 
(a) in the case of conduct in contravention of Part IV A-at any 
time within 2 years after the day on which the cause of action 
accrued; or 
(b) in any other case-at any time within 3 years after the day on 
which the cause of action accrued. 
(ID) For the purpose of determining whether to make an order 
under this section in relation to a contravention of Part IV A, the Court 
may have regard to the conduct of parties to the proceeding since the 
contravention occurred. 
(2) The orders referred to in subsection (1) and (lA) are: 
(a) an order declaring the whole or any part of a contract made 
between the person who suffered, or is likely to suffer, the loss 
or damage and the person who engaged in the conduct or a 
person who was involved in the contravention constituted by 
the conduct, or of a collateral arrangement relating to such a 
contract, to be void and, if the Court thinks fit, to have been 
void ab initio or at all times on and after such date before the 
date on which the order is made as is specified in the order; 
(b) an order varying such a contract or arrangement in such 
manner as is specified in the order and, if the Court thinks fit, 
declaring the contract or arrangement to have had effect as so 
varied on and after such date before the date on which the 
order is made as is so specified; 
(ba) an order refusing to enforce any or all of the provisions of 
such a contract; Trade Practices Act 1974 
s.87. IPINIl! AUSIO/1 
Page 151 
(c) an order directing the person who engaged in the conduct or a 
person who was involved in the contravention constituted by 
the conduct to refund money or return property to the person 
who suffered the loss or damage; 
(d) an order directing the person who engaged in the conduct or a 
person who was involved in the contravention constituted by 
the conduct to pay to the person who suffered the loss or 
damage the amount of the loss or damage; 
(e) an order directing the person who engaged in the conduct or a 
person who was involved in the contravention constituted by 
the conduct, at his own expense, to repair, or provide parts 
for, goods that had been supplied by the person who engaged 
in the conduct to the person who suffered, or is likely to 
suffer, the loss or damage; 
(f) an order directing the person who engaged in the conduct or a 
person who was involved in the contravention constituted by 
the conduct, at his own expense, to supply specified services to 
the person who suffered, or is likely to suffer, the loss or 
damage; and 
(g) an order, in relation to an instrument creating or transferring 
an interest in land, directing the person who engaged in the 
conduct or a person who was involved in the contravention 
constituted by the conduct to execute an instrument that: 
(i) varies, or has the effect of varying, the first­
mentioned instrument; or 
(ii) terminates or otherwise affects, or has the effect of 
terminating or otherwise affecting, the operation or 
effect of the first-mentioned instrument. 
(3) Where: 
(a) a provision of a contract made, or a covenant given, whether 
before or after the commencement of the Trade Practices 
Amendment Act 1977: 
(i) in the case of a provision of a contract, is 
unenforceable by reason of section 45 in so far as it 
confers rights or benefits or imposes duties or 
obligations on a corporation; or 
(ii) in the case of a covenant, is unenforceable by reason of 
section 45B in so far as it confers rights or benefits or 
imposes duties or obligations on a corporation or on a 
person associated with a corporation; or 
(b) the engaging in conduct by a corporation in pursuance of or in 
accordance with a contract made before the commencement of 
the Trade Practices Amendment Act 1977 would constitute a 
contravention of section 47; IPINIl! AUSIO/1 
Page 152 
Trade Practices Act 1974 
s.87A. 
the Court may, on the application of a party to the contract or of a 
person who would, but for subsection 45B (1), be bound by, or entitled 
to the benefit of, the covenant, as the case may be, make an order: 
( c) varying the contract or covenant, or a collateral arrangement 
relating to the contract or covenant, in such manner as the 
Court considers just and equitable; or 
(d) directing another party to the contract, or another person who 
would, but for subsection 45B (1), be bound by, or entitled .to 
the benefit of, the covenant, to do any act in relation to the 
first-mentioned party or person that the Court considers just 
and equitable. 
(4) The orders that may be made under subsection (3) include an 
order directing the termination of a lease or the increase or reduction 
of any rent or premium payable under a lease. 
(5) The powers conferred on the Court under this section in 
relation to a contract or covenant do not affect any powers that any 
other court may have in relation to the contract or covenant in 
proceedings instituted in that other court in respect of the contract or 
covenant. 
(6) In subsection (2), "interest", in relation to land, has the same 
meaning as in section 53A. 
Power of Court to prohibit payment or transfer of moneys or other 
property 
87 A. (1) Where: 
(a) proceedings have been commenced against a person for an 
offence against section 79; 
(b) an application has been made under section 80 for an injunc­
tion against a person in relation to a contravention of a 
provision of Part IV A or V; 
(c) an action has been commenced under subsection 82 (1) against 
a person in relation to a contravention of a provision of Part 
V; or 
(d) an application for an order under subsection 87 (lA) or (IB) 
has been or may be made against a person in relation to a 
contravention of a provision of Part IV A or V; 
the Court may, on the application of the Minister or the Commission, 
make an order or orders m'entioned in subsection (2) if the Court is 
satisfied that: 
(e) it is necessary or desirable to do so for the purpose of 
preserving money or other property held by or on behalf of a 
person referred to in paragraph (a), (b), (c) or (d), as the case 
may be (in this section referred to as the "relevant person"), s.87A. Trade Practices Act 1974 IPIN/lI AUS/O/l 
Page 153 
where the relevant person is liable or may become liable 
under this Act to pay moneys by way of a fine, damages, 
compensation, refund or otherwise or to transfer, sell or re­
fund other property; and 
(f) it will not unduly prejudice the rights and interests of any 
other person. 
(2) The orders referred to in subsection (1) are: 
(a) an order prohibiting, either absolutely or subject to conditions, 
a person who is indebted to the relevant person or to an 
associate of the relevant person from making a payment in 
total or partial discharge of the debt to, or to another person 
at the direction or request of, the person to whom the debt is 
owed; 
(b) an order prohibiting, either absolutely or subject to conditions, 
a person who is holding money or other property on behalf of 
the relevant person or on behalf of an associate of the relevant 
person from paying all or any of the money, or transferring, or 
otherwise parting with possession of, the other property, to, or 
to another person at the direction or request of, the person on 
whose behalf the money or other property is held; 
( c) an order prohibiting, either absolutely or subject to conditions, 
the taking or sending by any person of money of the relevant 
person or of an associate of the relevant person to a place 
outside the State or Territory in which the money is held; 
(d) an order prohibiting, either absolutely or subject to conditions, 
the taking, sending or transfer by any person of other property 
of the relevant person or of an associate of the relevant person 
to a place outside the State or Territory in which the other 
property is located; and 
(e) an order appointing, where the relevant person is a natural 
person, a receiver or trustee of the property or of part of the 
property of the relevant person with such powers as are 
specified in the order. 
(3) Subject to subsection (4), an order under this section may be 
expressed to operate: 
(a) for a period specified in the order; or 
(b) until proceedings under any other provision of this Part in 
relation to which the order was made have been concluded. 
(4) An order under this section made on an application ex parte 
shall not be expressed to operate for a period exceeding 30 days. 
(5) A person who contravenes or fails to comply with an order by 
the Court under this section that is applicable to the person is guilty of 
an offence punishable on conviction: IPINIl! AUSIO/l 
Page 154 
Trade Practices Act 1974 
s. S7B. 
(a) in the case of a person not being a body corporate-by a fine 
not exceeding $20,000; or 
(b) in the case of a person being a body corporate-by a fine not 
exceeding $100,000. 
(6) Nothing in this section affects the powers that the Court has 
apart from this section. 
(7) This section has effect subject to the Bankruptcy Act 1966. 
(8) A reference in this section to a person who is an associate of a 
relevant person is a reference to: 
(a) a person holding money or other property on behalf of the 
relevant person; or 
(b) if the relevant person is a body corporate-a wholly owned 
subsidiary of the relevant person. 
Enforcement of undertakings 
87B. (1) The Commission may accept a written undertaking given 
by a person for the purposes of this section in connection with a 
matter in relation to which the Commission has a power or function 
under this Act (other than Part X). 
(2) The person may withdraw or vary the undertaking at any time, 
but only with the consent of the Commission. 
(3) If the Commission considers that the person who gave the 
undertaking has breached any of its terms, the Commission may apply 
to the Court for an order under subsection (4). 
(4) If the Court is satisfied that the person has breached a term of 
the undertaking, the Court may make all or any of the following 
orders: 
(a) an order directing the person to comply with that term of the 
undertaking; 
(b) an order directing the person to pay to the Commonwealth an 
amount up to the amount of any financial benefit that the 
person has obtained directly or indirectly and that is reason­
ably attributable to the breach; 
(c) any order that the Court considers appropriate directing the 
person to compensate any other person who has suffered loss 
or damage as a result of the breach; 
(d) any other order that the Court considers appropriate.