Page 1786 - Week 07 - Tuesday, 18 August 1992
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A corporation shall not, in trade or commerce ... falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use ...
Again, it states "falsely represent that goods are of a particular standard or quality", not with the exception that it does not matter if they are better. The penalty there is $20,000 for individuals and $100,000 for corporations. So, massive penalties have been in force since 1974, based on correspondence with description.
What the Liberals are trying to do, Madam Speaker - the Independents should bear this in mind - is introduce this subjective quality of, "But it is okay if it is better". What do they mean by "better"? What does "to the prejudice" mean? The example to which Mrs Carnell referred was, "If you ordered raspberries and got strawberries it really would not matter". It might matter if you have an allergy, as Mr Berry very clearly said. Basically, you have the right to expect that what you order and pay for is what you get. If the restaurateur happens to be short of raspberries on that day but has strawberries - and let us assume that it is during a glut of raspberries when strawberries are scarce, so that strawberries are rather more expensive than raspberries - all he or she has to say is, "Look, I am sorry; I am short of raspberries, but I will give you strawberries for the same price".
Mrs Carnell: And then they contravene the legislation.
Mr Humphries: You send it back, do you not?
MR CONNOLLY: This betrays a fundamental misunderstanding. Mr Humphries could not share that view; I can understand that. When one goes through Contracts 1, one is taught what a contract involves - offer and acceptance. "I would like to order raspberries". "We are sorry, we do not have raspberries; we have strawberries". "I will have the strawberries". Therefore, there is a sale that complies with demand because the contract is for the strawberries; it is not a problem. The legislation in our format requires, in every case, the trader to be honest and straightforward and supply the goods that the consumer demands or say, "I am sorry, consumer, I do not have those goods, but I have these other goods; would you like them?". The consumer can then say, "Thanks very much; I will have those at the same price", or, "I am sorry, but I happen to be allergic to that, even though it is a higher quality good", or "I happen to have a religious faith that says that I cannot eat a certain fish" - scale or non-scale - to take Mr Berry's example.
It is a fundamental principle of consumer protection legislation that has been adhered to in the civil sense at least since the 1890s; and it has been adhered to in the criminal sense, giving rise to penalties of up to $100,000, since at least 1974. That applies throughout this legislation. If the Liberals are serious about this proposition that you should introduce a subjective element of whether the goods are better or worse in relation to this clause, they ought to be consistent and move it throughout, because false advertising of food, misleading presentation and all of these offences are essentially variations of the theme of requiring honesty, requiring a trader to supply to a consumer what the consumer asks for. It is simply that.
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