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AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12DMB

Assertion of right to payment for unauthorised advertisements

  (1)   A person must not assert a right to payment from another person of a charge for placing, in a publication, an advertisement, for financial services, relating to:

  (a)   the other person; or

  (b)   the other person's profession, business, trade or occupation;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note:   Failure to comply with this subsection is an offence (see section   12GB).

  (2)   A person must not send to another person an invoice or other document that:

  (a)   states the amount of a payment, or sets out the charge for placing, in a publication, an advertisement, for financial services, relating to:

  (i)   the other person; or

  (ii)   the other person's profession, business, trade or occupation; and

  (b)   does not contain a warning statement that complies with the requirements set out in the regulations;

unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note:   Failure to comply with this subsection is an offence (see section   12GB).

  (3)   Subsections   (1) and (2) do not apply to an advertisement that is placed in a publication published by a person who is:

  (a)   the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or

  (b)   a body corporate related to such a publisher; or

  (c)   the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or

  (d)   a person specified in the regulations.

Note:   A defendant bears an evidential burden in relation to the matter in subsection   (3): see subsection   13.3(3) of the Criminal Code.

  (4)   A person:

  (a)   is not liable to make any payment to another person; and

  (b)   is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person;

in full or part satisfaction of a charge for placing, in a publication, an advertisement for financial services, unless the person has authorised the publishing of the advertisement.

  (5)   A person is not taken for the purposes of this section to have authorised the placing, in a publication, of an advertisement, unless:

  (a)   a document authorising the placing of the advertisement has been signed by the person or by another person authorised by him or her; and

  (b)   a copy of the document has been given to the person before the right to payment of a charge for the placing of the advertisement is asserted; and

  (c)   the document specifies:

  (i)   the name and address of the person placing the advertisement; and

  (ii)   particulars of the advertisement; and

  (iii)   the amount of the charge for the placing of the advertisement, or the basis on which the charge is, or is to be, calculated.

  (6)   In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person knew or had reasonable cause to believe that the person against whom a right to payment was asserted had authorised the placing of the advertisement.


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