4.8 Defences in relation to alleged breaches of Chapter 4 of the ACL

Australian Consumer Law, s. 207

(1) In a prosecution for a contravention of a provision of this Chapter, it is a defence if the defendant proves that the contravention was caused by a reasonable mistake of fact, including a mistake of fact caused by reasonable reliance on information supplied by another person.

(2) However, subsection (1) does not apply in relation to information relied upon by the defendant that was supplied to the defendant by another person who was, at the time when the contravention occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director, employee or agent of the defendant.

(3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person, the defendant is not entitled to rely on that defence unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice giving such information as the defendant then had that would identify or assist in identifying the other person.

Australian Consumer Law, s. 208

(1) In a prosecution for a contravention of a provision of this Chapter, it is a defence if the defendant proves that:

(a) the contravention was due to the act or default of another person, to an accident or to some other cause beyond the defendant’s control; and

(b) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.

(2) However, subsection (1) does not apply in relation to the act or default of another person who was, at the time when the contravention occurred:

(a) an employee or agent of the defendant; or

(b) if the defendant is a body corporate—a director, employee or agent of the defendant.

(3) If a defence provided by subsection (1) involves an allegation that a contravention was due to the act or default of another person, the defendant is not entitled to rely on that defence unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice giving such information as the defendant then had that would identify or assist in identifying the other person.

Australian Consumer Law, s. 209

In a prosecution for a contravention of a provision of this Chapter that was committed by publication of an advertisement, it is a defence if the defendant proves that:

(a) the defendant is a person whose business it is to publish or arrange for the publication of advertisements; and

(b) the defendant received the advertisement for publication in the ordinary course of business; and

(c) the defendant did not know, and had no reason to suspect, that its publication would amount to a contravention of such a provision.

Australian Consumer Law, s. 210

(1) In a prosecution for a contravention of a provision of this Chapter that was committed by supplying goods in contravention of section 194 or 203, it is a defence if the defendant proves that:

(a) the goods were acquired by the defendant for the purpose of re-supply; and

(b) the goods 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

(c) in the case of a contravention of section 194—the defendant:

(i) did not know, and could not with reasonable diligence have ascertained, that the goods did not comply with the safety standard to which the contravention relates; or

(ii) relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no safety standard for such goods; and

(d) in the case of a contravention of section 203—the defendant:

(i) did not know, and could not with reasonable diligence have ascertained, that the defendant had not complied with the information standard to which the contravention relates; or

(ii) relied in good faith on a representation by the person from whom the defendant acquired the goods that there was no information standard for such goods.

Note: Section 194 is about supply of consumer goods that do not comply with safety standards, and section 203 is about supply of goods that do not comply with information standards.

(2) A defendant is not entitled to rely on the defence provided by subsection (1) unless:

(a) the court gives leave; or

(b) the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person who instituted the proceeding a written notice identifying the person from whom the defendant acquired the goods.