Trade Practices Amendment (Australian Consumer Law) Act (No. 1) 2010 (44 of 2010)

Schedule 2   Enforcement and remedies under the Trade Practices Act 1974

Part 3   Substantiation notices

Trade Practices Act 1974

12   Before Part VII

Insert:

Part VID - Substantiation notices

87ZL Commission may require claims to be substantiated etc.

(1) This section applies if a person has made a claim or representation promoting, or apparently intended to promote:

(a) a supply, or possible supply, of goods or services by a corporation; or

(b) a sale or grant, or possible sale or grant, of an interest in land (within the meaning of section 53A) by a corporation; or

(c) employment that is to be, or may be, offered by a corporation;

including any such claim or representation made by the corporation.

(2) The Commission may give the person who has made the claim or representation a written notice that requires the person to do one or more of the following:

(a) give information and/or produce documents to the Commission that could be capable of substantiating or supporting the claim or representation;

(b) if the claim or representation relates to a supply, or possible supply, of goods or services by a corporation - give information and/or produce documents to the Commission that could be capable of substantiating:

(i) the quantities in which; and

(ii) the period for which;

the corporation is or will be able to make such a supply (whether or not the claim or representation relates to those quantities or that period);

(c) give information and/or produce documents to the Commission that are of a kind specified in the notice;

within 21 days after the notice is given to the person.

(3) Any kind of information or documents that the Commission specifies under paragraph (2)(c) must be a kind that the Commission is satisfied is relevant to:

(a) substantiating or supporting the claim or representation; or

(b) if the claim or representation relates to a supply, or possible supply, of goods or services by a corporation - substantiating the quantities in which, or the period for which, the corporation is or will be able to make such a supply.

(4) The notice must:

(a) name the person to whom it is given; and

(b) specify the claim or representation to which it relates; and

(c) explain the effect of sections 87ZM, 87ZN and 87ZO.

(5) The notice may relate to more than one claim or representation that the person has made.

(6) This section does not apply to a person in relation to a claim or representation made by the person if the person:

(a) is a prescribed information provider within the meaning of section 65A; and

(b) made the claim or representation by publishing it on behalf of another person in the course of carrying on a business of providing information; and

(c) does not have a commercial relationship with the other person other than for the purpose of:

(i) publishing claims or representations promoting, or apparently intended to promote, the other person’s business or other activities; or

(ii) the other person supplying goods or services, or selling or granting interests in land (within the meaning of section 53A), to the person.

87ZM Extending periods for complying with substantiation notices

(1) A person who has been given a substantiation notice may, at any time within 21 days after the notice was given to the person, apply in writing to the Commission for an extension of the period for complying with the notice.

(2) The Commission may, by written notice given to the person, extend the period within which the person must comply with the notice.

87ZN Compliance with substantiation notices

(1) A person who is given a substantiation notice must comply with it within the substantiation notice compliance period for the notice.

(2) The substantiation notice compliance period for a substantiation notice is:

(a) the period of 21 days specified in the notice; or

(b) if the period for complying with the notice has been extended under section 87ZM - the period as so extended.

(3) Despite subsection (1), an individual may refuse or fail to give particular information or produce a particular document in compliance with a substantiation notice on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.

87ZO False or misleading information etc.

(1) A person must not, in compliance or purported compliance with a substantiation notice:

(a) give to the Commission false or misleading information; or

(b) produce to the Commission documents that contain false or misleading information.

(2) This section does not apply to:

(a) information that the person could not have known was false or misleading; or

(b) the production to the Commission of a document containing false or misleading information if the document is accompanied by a statement of the person that the information is false or misleading.