Commonwealth Numbered Acts

TRADE PRACTICES ACT 1974 No. 51, 1974 - SECT 85

85. (1) Subject to sub-section (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 a mistake, to reliance on information supplied
        by another person, to the act or default of another person, to an
        accident or to some other cause beyond his control; and

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

(2) If a defence provided by sub-section (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 defendant 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 information 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 advertisement, 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.

(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 standard, 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 acquired 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 sub-section (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 against a person other than a body corporate
under this Part, it appears to the Court that the person has or may have done
an act in contravention of a provision of Part IV or an act referred to in
paragraph 76 (b), (c), (d) or (e) 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.