S.12GI Defences (Unconscionable conduct and consumer protection in relation to financial services)

Act & Section

S.12GI Defences (Unconscionable conduct and consumer protection in relation to financial services)

Type

Procedural

Process

Statutory defences

What

Priority in jurisdictions

Observations

(1)  Subject to subsection (3), in a prosecution under this Subdivision in relation to a contravention of a provision of Subdivision D (sections 12DA to 12DN), 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; or

(b)   that the contravention in respect of which the proceeding was instituted was due to reasonable reliance on information supplied 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 exercised due diligence to avoid the contravention.

[Note: A defendant bears a legal burden in relation to the matters in subsection (1) (see section 13.4 of the Criminal Code).]

(1A) Paragraph (1)(a) is to be interpreted as having the same effect in relation to a contravention of a provision of this Subdivision as section 9.2 of the Criminal Code has in relation to offences of strict liability.

(2) In paragraphs (1)(b) and (c), another person does not include a person who was:

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

(b)   in the case of a defendant being a body corporate, a director, employee or agent of the defendant; at the time when the contravention occurred.

(3) 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 defendant is not, without leave of the Court, entitled to rely on that defence unless he or she 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 or her possession.

(4)   In a proceeding under this Subdivision in relation to a contravention of a provision of Subdivision D (sections 12DA to 12DN) committed by the publication of an advertisement, it is a defence if the defendant establishes that he or she is a person whose business it is to publish or arrange for the publication of advertisements and that he or she 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 Subdivision D.

(5)   If, in proceedings under section 12GBA or 12GBB 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 civil penalty provision 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 pay a pecuniary penalty under that section.