Australian Consumer Law and Fair Trading Regulations 2022

The Regulations introduce or operationalise several distinct concepts, each tied to a specific section of the Act. The most significant is the concept of prescribed particulars for limitation of liability in recreational services. This flows from section 22 of the Act, which allows a supplier of recreational services to exclude, restrict, or modify its liability for death or injury that results from a failure to comply with the statutory guarantees (due care and skill, fitness for purpose, and achievement of a disclosed result). The exclusion is valid only if the supplier brings it to the purchaser’s attention in the prescribed manner. The Regulations define that manner by mandating specific warning and note text. The warning must alert the purchaser that their right to sue is excluded, restricted, or modified, and the note must inform them that the exclusion does not apply to gross negligence. Gross negligence itself is defined in regulation 5 as an act or omission done in a manner to which section 22(3)(b) of the Act applies, which the note in Schedule 1 explains as acting “with reckless disregard, with or without consciousness, for the consequences”. This is a standalone statutory definition, not a common law concept, and its breadth (including unconscious recklessness) creates uncertainty about what conduct falls within it.

The second concept is prescribed persons and bodies for conciliation and mediation. Under section 114(3) of the Act, the Director must refer certain disputes to a person or body prescribed by the regulations. The Regulations list five entities: the Ombudsman (the general state Ombudsman), IBAC, the Health Complaints Commissioner, the Victorian Legal Services Commissioner, and the Commonwealth Private Health Insurance Ombudsman. This mechanism diverts disputes from the Director’s own dispute resolution processes into specialised jurisdictions. It reflects a policy decision that consumer complaints in areas already covered by sector-specific ombudsmen or commissioners should be handled by those bodies rather than by the general consumer affairs agency.

The third concept is prescribed interstate Acts. This is about mutual recognition of inspector powers. Section 142 of the Act allows inspectors to exercise powers under corresponding laws of other jurisdictions if those laws are prescribed. The Regulations list nine Acts across all states and territories (New South Wales, Queensland, South Australia, Western Australia, Australian Capital Territory, Northern Territory, and Tasmania). This enables Victoria inspectors to conduct investigations under those Acts when operating interstate, and also likely enables interstate inspectors to use their powers in Victoria (the Act’s cross-border enforcement provisions). The concept is purely procedural: it facilitates enforcement cooperation without creating new substantive powers.

The fourth concept is the embargo notice form. Section 162 of the Act gives inspectors the power to embargo goods by issuing a notice. The Regulations prescribe the exact form for that notice in Schedule 3. The form includes a description of the embargoed thing, a statement of the offence (maximum 60 penalty units), the defence for moving the thing to protect and preserve it, and the rule that any dealing in contravention is void. The concept of embargo is a strong enforcement tool: it freezes goods in place, preventing sale or movement, and any transaction that occurs despite the embargo is void ab initio. This carries significant commercial risk for anyone who deals with embargoed goods in ignorance. The Regulations ensure that the notice itself is standardised, reducing the risk of procedural challenges based on form.

The Regulations affect a clearly defined but diverse set of parties. The most directly affected group is suppliers of recreational services who wish to use the statutory exclusion of liability under section 22 of the Act. This includes adventure tourism operators (such as bungee jumping, white-water rafting, skydiving), sporting clubs (especially contact sports and high-risk activities), gyms, fitness instructors, and any business that supplies services where participants assume a risk of physical injury. These suppliers must now use the exact wording from Schedule 1 or 2 depending on the medium, and for signs they must comply with the font size rule. The cost of non-compliance is that the attempted exclusion is ineffective, leaving the supplier fully liable for death or injury caused by a failure to comply with statutory guarantees, even if the purchaser signed a waiver. The Regulations therefore impose a compliance burden on these businesses: they must update their signage, waiver forms, and standard terms and conditions to match the prescribed wording. Smaller operators with limited legal budgets are more likely to fall foul of the technical requirements.

The second affected group is consumers and participants in recreational services. Their statutory rights under the Australian Consumer Law (due care and skill, fitness for purpose, achievement of a disclosed result) can now be excluded for death or injury if the supplier complies with the prescribed form. This is a significant limitation on consumer protections that would otherwise apply. A consumer who signs a waiver containing the Schedule 2 wording loses the right to sue for death or injury caused by substandard services, unless the injury is attributable to gross negligence. The consumer’s ability to recover for ordinary negligence is extinguished by the waiver. The Regulations therefore reduce the remedies available to injured consumers, shifting risk from the supplier to the participant. The gross negligence carve-out provides a narrow safety valve, but the definition (reckless disregard, with or without consciousness) is difficult to prove and may not capture many common negligence scenarios.

The third group is inspectors appointed under the Act. They are directly affected by the prescribed embargo notice form (Schedule 3) and the list of interstate Acts (regulation 8). Inspectors must use the Schedule 3 form when issuing an embargo notice, or risk the notice being invalid. The prescribed interstate Acts expand the geographic scope of their enforcement powers, allowing them to act under corresponding laws when outside Victoria. This affects how inspectors plan joint operations or interstate investigations.

The fourth group is the prescribed bodies for conciliation and mediation listed in regulation 7. These entities (Ombudsman Victoria, IBAC, Health Complaints Commissioner, Victorian Legal Services Commissioner, and the Commonwealth Private Health Insurance Ombudsman) must be prepared to receive referrals from the Director under section 114(3) of the Act. This imposes an administrative load on those bodies, potentially increasing their caseload with consumer disputes that might otherwise have been handled by Consumer Affairs Victoria. It also means that consumers with complaints in those sectors are routed to the specialist body rather than the general consumer agency.

Finally, any person who deals with embargoed goods is affected. The embargo notice in Schedule 3 explicitly states that selling, leasing, moving without consent, transferring, or otherwise dealing with the thing is an offence (60 penalty units), and any such dealing is void. This includes warehousing operators, transport companies, and subsequent purchasers who may inadvertently acquire embargoed goods. The voidness provision means title does not pass, creating significant legal risk for innocent third parties.

The Regulations impose specific duties and confer limited rights, all derived from the parent Act and the prescribed forms. The central duty is on suppliers of recreational services who choose to rely on section 22 of the Act to exclude liability for death or injury. They must include the prescribed warning and note in the manner required by regulation 6. There are three distinct obligations depending on the medium. If the exclusion term is contained in a sign displayed at the place where the services are supplied, the warning and note set out in Schedule 1 must appear on the sign, and the font size of the warning and note must be at least equal to the largest font size used elsewhere on the sign, excluding the supplier’s name or logo (regulation 6(2)). This duty is absolute: even if the content of the warning is correct, a sign with a smaller font size does not comply. If the term is contained in a notice given to the purchaser, the warning and note in Schedule 1 must be included, but there is no express font size requirement for notices (only for signs). If the term is contained in a form to be signed by the purchaser, the supplier must use the warning and note set out in Schedule 2. Schedule 2 includes a longer explanation of the statutory guarantees and a specific warning that signing the form agrees to the exclusion. The supplier cannot substitute its own wording; doing so would likely render the exclusion ineffective.

The duty on suppliers is not to exclude liability for gross negligence. The Regulations do not create this duty; it is inherent in section 22(3) of the Act. However, the Regulations reinforce it by including the note in both Schedules, which informs purchasers that the exclusion does not apply to gross negligence. Suppliers who attempt to exclude gross negligence risk the entire exclusion being void under the Act, and may face additional liability under the Australian Consumer Law for misleading or deceptive conduct if the note is omitted or if they purport to exclude gross negligence.

The rights of purchasers of recreational services are modified by these Regulations. Where a supplier has complied with the prescribed form, the purchaser loses the right to sue for death or injury caused by the supplier’s failure to comply with the statutory guarantees. This is a significant alteration of the purchaser’s rights under the Australian Consumer Law. The purchaser retains the right to sue for death or injury caused by gross negligence, but they bear the burden of proving that the supplier acted (or omitted to act) with reckless disregard, with or without consciousness of the consequences. This is a high threshold. The Regulations also impose a duty on the supplier to bring the exclusion to the purchaser’s attention, which gives the purchaser a right to receive the warning before agreeing to the exclusion. If the supplier fails to use the prescribed form, the purchaser’s rights remain intact and the exclusion is likely void.

For inspectors, the Regulations confer the right to use a standardised embargo notice form. They also have the right to exercise powers under the prescribed interstate Acts (regulation 8) when acting under section 142 of the Act. These are procedural rights that facilitate enforcement. Conversely, inspectors have a duty to use the prescribed form; issuing an embargo notice in a different form may be challenged as ultra vires.

For persons served with an embargo notice, the Regulations impose a duty not to sell, lease, move without written consent, transfer, or otherwise deal with the embargoed thing (section 162(4) of the Act, as reproduced in Schedule 3). A person may move the thing for the purpose of protecting and preserving it, and that is a defence to a prosecution (Schedule 3, clause 3). Any dealing in contravention of the embargo is void under section 162(6) of the Act. The Regulations make clear that the embargo notice must identify the thing described and be served or affixed. These are duties and potential rights of defence.

The prescribed bodies in regulation 7 have the duty to accept referrals from the Director under section 114(3) of the Act. This is an administrative obligation; the Regulations do not specify the bodies’ rights in relation to such referrals, but they would have the powers conferred by their own enabling legislation.

The Regulations themselves do not create independent offences; they rely on the penalty provisions of the Act. However, the prescribed form of the embargo notice in Schedule 3 reproduces the offence under section 162(4) of the Act. That offence makes it an offence for a person who knows that an embargo notice relates to a thing to sell, lease, move without written consent, transfer, or otherwise deal with that thing or any part of it. The maximum penalty is 60 penalty units. At the time the Regulations were made, the value of a penalty unit for the 2021-22 financial year was $181.74, and for 2022-23 it was $184.92. This yields a maximum fine of approximately $11,095 (for 2022-23). The penalty unit value is set annually by the Treasurer under the Monetary Units Act 2004 and published before 1 June. The Regulations note this indexing mechanism in their endnotes, and practitioners must check the current penalty unit value.

The offence under section 162(4) is strict liability? The Regulations do not specify mens rea beyond the element that the person “knows that an embargo notice relates to a thing”. The knowledge element applies to the existence of the notice, but the acts of dealing are presumably strict as to the dealing itself. The Schedule 3 form provides a defence: it is a defence to prove that the thing or part was moved for the purpose of protecting and preserving it. The burden of proof shifts to the defendant on the balance of probabilities. This is a narrow defence: it only covers moving, not selling or leasing. A person who sells embargoed goods cannot rely on this defence even if the sale was to protect the goods from deterioration. The voidness provision in section 162(6) of the Act is a civil consequence, not a criminal penalty, but it is a sanction: a sale, lease, transfer, or other dealing in contravention of the embargo is void. This means that any transaction is treated as never having occurred, which can create cascading legal problems for subsequent purchasers and financiers.

For suppliers who fail to use the prescribed words for the recreational services liability limitation, the penalty is not criminal but civil: the attempted exclusion of liability is ineffective. The supplier remains liable for death or injury caused by a failure to comply with statutory guarantees. There is no fine under the Regulations for non-compliance with the prescribed form; the enforcement mechanism is through private litigation by injured consumers. However, the regulator could potentially take action under the Australian Consumer Law for unfair contract terms or misleading conduct if the waiver is poorly drafted. The Regulations themselves do not create a penalty for using the wrong form; they simply set the conditions for the exclusion to be valid.

The Regulations do not provide for infringement notices, enforceable undertakings, or other alternative enforcement mechanisms. They are purely prescriptive and form-based. The Director of Consumer Affairs Victoria has general enforcement powers under the Act, including the power to issue embargo notices, seek court orders, and accept undertakings. The prescribed bodies under regulation 7 have their own enforcement and complaint-handling powers under their respective statutes, but the Regulations do not create any specific penalty regime for failing to participate in conciliation or mediation.

The Regulations sit within a complex federal and state legislative framework for consumer protection. Their primary interaction is with the Australian Consumer Law and Fair Trading Act 2012 (Vic) , which is the parent Act. The Regulations give effect to specific sections of that Act: section 22 (recreational services liability limitation), section 114 (referral of disputes), section 142 (interstate inspector powers), and section 162 (embargo notices). Without the Regulations, those sections would be inoperative or would require alternative prescription. The Regulations are therefore an essential complement to the Act.

The Regulations also interact with the Australian Consumer Law (ACL) , which is Schedule 2 to the Competition and Consumer Act 2010 (Cth) as applied as a law of Victoria under the Act. The statutory guarantees under the ACL (due care and skill, fitness for purpose, etc.) are the very rights that section 22 of the Act allows suppliers to exclude for recreational services. The Regulations prescribe how that exclusion must be communicated. This creates a hierarchy: the ACL confers the rights; the Act permits the exclusion; the Regulations dictate the form. A waiver that complies with the Regulations will effectively displace the ACL guarantees for death or injury, subject to the gross negligence exception. This interaction is critical for businesses and consumers: the ACL’s protections are not absolute but can be contractually modified in this narrow area if the proper procedure is followed.

The list of prescribed interstate Acts in regulation 8 ties the Victorian regulatory system into the national network of fair trading laws. Section 142 of the Act allows inspectors to exercise powers under corresponding laws of other jurisdictions if those laws are prescribed. The Regulations include Acts from every state and territory. This means a Victorian inspector can, for example, exercise powers under the Fair Trading Act 1987 of New South Wales when investigating a supplier based in Sydney. Conversely, inspectors from those states can likely invoke section 142 of the Victorian Act (though the Regulations only prescribe those Acts for the purposes of Victoria). This interaction facilitates cross-border enforcement and reduces the risk of regulatory gaps when goods or services are supplied across state lines.

The prescribed bodies under regulation 7 interact with their own enabling legislation. The Ombudsman Act 1973, the Independent Broad-based Anti-corruption Commission Act 2011, the Health Complaints Act 2016, the Legal Profession Uniform Law Application Act 2014, and the Ombudsman Act 1976 (Cth) all define the jurisdiction and powers of those bodies. The Regulations merely trigger a referral mechanism under the Act; the bodies must then handle the dispute according to their own statutory framework. If a body does not have jurisdiction over the complaint, the referral may be ineffective or the body may refer it back. This interaction can create complexity: a consumer complaint about a recreational service that involves a health professional could be referred to the Health Complaints Commissioner, whose processes and remedies differ from those of Consumer Affairs Victoria.

The embargo notice provisions interact with the general law of property and contracts. Section 162(6) of the Act provides that any sale, lease, transfer, or other dealing in contravention of an embargo is void despite anything in any other Act. This overrides the ordinary rules of property transfer and title. A person who buys goods that are subject to an undisclosed embargo will not acquire good title, and the seller will be in breach of implied warranties of title under the ACL. The Regulations do not create any priority rules for competing interests, nor do they require that embargoes be registered on a public register, so there is interaction with the Personal Property Securities Act 2009 (Cth) and general chattels law. A secured creditor with a security interest in embargoed goods may find its security void if the dealing that created it occurred after the embargo.

The Regulations also interact with the Subordinate Legislation Act 1994 (Vic) , which imposes a ten-year sunset period on statutory rules. The Regulations will automatically expire on 15 June 2032 unless remade. This creates a periodic review obligation for the government.

Finally, the Sentencing Act 1991 and the Monetary Units Act 2004 are referenced in the endnotes for penalty unit calculations. The penalty for the embargo offence is denominated in penalty units, and the dollar value changes annually. Practitioners must look to the current penalty unit value under the Monetary Units Act, not the Regulations themselves.

The Australian Consumer Law and Fair Trading Regulations 2022 are a replacement instrument. They revoked three earlier instruments: the Australian Consumer Law and Fair Trading Regulations 2012 (S.R. No. 62/2012), the Australian Consumer Law and Fair Trading Amendment Regulations 2012 (S.R. No. 89/2012), and the Australian Consumer Law and Fair Trading Amendment Regulations 2013 (S.R. No. 14/2013). The original 2012 regulations were made shortly after the parent Act came into force and had been amended twice: once in 2012 and again in 2013. The 2022 regulations consolidate those three instruments into one, with no substantive changes indicated in the text. The revocation is a standard administrative housekeeping measure, consistent with the Victorian government’s policy of remaking statutory rules every ten years to avoid sunset. The 2022 regulations have a sunset date of 15 June 2032, which is exactly ten years after the day of making (15 June 2022). This aligns with section 5 of the Subordinate Legislation Act 1994.

The version at the time of writing is Version No. 001, meaning no amendments have been made since the Regulations came into force on 27 June 2022. The Table of Amendments included in the endnotes confirms that there are no amendments made to these Regulations by statutory rules, subordinate instruments, or Acts. This is a pristine instrument, though it may be amended in the future if the parent Act is amended or if experience reveals deficiencies in the prescribed forms.

The previous regulations (the 2012 set and their amendments) had a similar scope. The 2012 regulations had the same structure: they prescribed the recreational services waiver wording (though possibly in slightly different form), listed prescribed bodies (which may have differed), prescribed interstate Acts (which would have been updated over time as states amended their fair trading legislation), and prescribed the embargo notice form. The 2013 amendment regulation likely made minor adjustments, possibly to the list of prescribed bodies or interstate Acts. The explanatory details in the 2022 regulations do not list the specific changes from the 2012 to 2022 versions, so practitioners cannot tell from this text alone whether the wording in the schedules has changed. However, the fact that Schedule 1 includes the language “if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose” is consistent with the wording that has been required for many years.

The Regulations have not been the subject of amendment because of their short life to date (less than three years as of 2025). They remain in their original form. Any future amendment would likely be triggered by changes to the parent Act, changes to interstate fair trading legislation (requiring an update to regulation 8), or a decision to add or remove a prescribed body under regulation 7 (for example, if a new industry ombudsman is created). The sunset date means that the Regulations must be remade by 2032, and that process will provide an opportunity for review and amendment.

The text of the Regulations themselves makes no reference to any court proceedings, and the explanatory details do not cite any cases. This is typical for subordinate legislation of this kind; the regulations are administrative and procedural, and litigation typically focuses on the parent Act or the application of the prescribed forms rather than the forms themselves.

However, the absence of cited litigation does not mean the Regulations have never been considered by courts. The recreational services limitation provision (section 22 of the Act and the associated prescribed form) has been the subject of judicial consideration in Victoria. The key precedent is generally the interpretation of “gross negligence” as defined in the Act and the Regulations. The definition in regulation 5 incorporates section 22(3)(b) of the Act, which describes gross negligence as “doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission”. This formulation is broader than the common law concept of gross negligence, which often requires a high degree of carelessness or a conscious indifference to risk. The inclusion of “without consciousness” suggests that even an inadvertent act can be gross negligence if it displays reckless disregard, which is a difficult standard to apply. Courts in other Australian jurisdictions have interpreted similar provisions in their own fair trading laws, and those interpretations would be persuasive in Victoria, but the Regulations do not list any such cases.

The embargo notice provisions have likely been litigated in the context of challenges to the validity of notices or the scope of the voidness provision. A notice that fails to use the prescribed form (Schedule 3) would be invalid, and any dealing in reliance on that notice would not be void under section 162(6) because the embargo would not have been properly imposed. The Regulations reduce the risk of form challenges by prescribing a clear, self-contained form that includes all necessary warnings and elements. Nevertheless, disputes could arise over whether the description of the embargoed thing in the form is sufficiently precise, or whether the inspector properly served or affixed the notice. These are factual issues that would be resolved in the Magistrates’ Court or Supreme Court, but no such cases are noted in the Regulations.

The list of prescribed bodies under regulation 7 is also unlikely to generate litigation; it is an administrative list that the Director must use when referring disputes. A party might challenge a referral if they believe the prescribed body does not have jurisdiction over the dispute (for example, if the Ombudsman Act 1973 excludes certain matters). The Regulations do not create a right of appeal from a referral, so any challenge would have to be brought under administrative law principles. Again, no such cases are recorded in the source.

Practitioners should therefore be aware that while the Regulations themselves are not litigated directly, they form the foundation for litigation under the Act. The validity of a recreational services waiver will often hinge on whether the supplier used the exact wording from the Regulations. Injured consumers may attempt to argue that the wording was not prominent enough (for signs) or that the font size requirement was not met. The Regulations will be central evidence in those cases. Similarly, a prosecution under section 162(4) of the Act will rely on the embargo notice form to establish the prohibition. The Regulations’ clear language reduces the scope for interpretive litigation but does not eliminate it entirely.

Several aspects of the Regulations create traps for the unwary, particularly for businesses that use waivers for recreational services. The most significant is the font size requirement for signs. Regulation 6(2) requires that the warning and note in a sign must be in a font size at least equal to the largest font size used elsewhere on the sign, excluding the supplier’s name or logo. This means that if a sign has a headline in 72-point font, the warning must also be in 72-point font. Many suppliers put waivers in fine print, but that would not comply if the sign has larger text elsewhere. The exception for the name or logo closes a loophole: a supplier cannot escape the requirement by making its logo enormous and claiming that is the largest font. However, a supplier could have a small sign with no other text besides the warning, then the requirement would be satisfied. But if the sign includes any other text (e.g., “Welcome to Bungee Extreme”), that text’s font size sets the floor. This is a costly compliance requirement for businesses with existing signage: they must either redesign signs or ensure the warning is printed at the maximum size.

The distinction between a sign, a notice given to the purchaser, and a form to be signed is another trap. The Regulations prescribe different wording for each medium. Schedule 1 applies to signs and notices, but Schedule 2 applies only to signed forms. A supplier that gives a notice to a purchaser (not requiring a signature) and uses the Schedule 2 wording may be non-compliant, because Schedule 2 includes language such as “If you sign this form” which would be misleading if the document is not a signed form. Conversely, using Schedule 1 wording in a signed form may be insufficient because Schedule 2 contains an additional explanation of the statutory guarantees. The Regulations do not permit any flexibility: the applicable schedule is determined by the medium. A supplier that uses a single waiver for both digital click-through (not signed) and paper forms (signed) must include both sets of wording, or risk the exclusion being invalid for one of the contexts.

The definition of gross negligence is another trap. The Regulations incorporate section 22(3)(b) of the Act, which defines gross negligence as acting with reckless disregard, “with or without consciousness”. The phrase “without consciousness” is unusual. It suggests that even if the supplier did not realise its conduct was dangerous, it could still be gross negligent if a reasonable person would have recognised the reckless disregard. This is a very broad definition, potentially capturing ordinary negligence that is merely serious. Suppliers may believe that their waiver covers all negligence, but it does not cover gross negligence as defined. The exclusion is void for gross negligence, so a supplier that relies on the waiver and is later found to have acted with reckless disregard (even unwittingly) may be fully liable. Proving gross negligence is difficult, but the definition is broad enough to create uncertainty, and insurers may resist indemnity in such cases.

The embargo notice contains its own trap. The prescribed form in Schedule 3 states that any dealing in contravention of the embargo is void under section 162(6) of the Act. This voidness applies “despite anything in any other Act”. This means that even a bona fide purchaser for value without notice of the embargo will not acquire good title. There is no public register of embargo notices, so a person buying goods cannot easily check if an embargo exists. This creates significant due diligence risk for businesses that purchase second-hand goods or trade in commodities that may be subject to inspection. A warehouse that moves goods to a different location to protect them from a flood (acting in good faith) can rely on the defence in clause 3 of the Schedule, but only for moving, not for selling. If the operator sells the goods to recoup storage costs, that sale is void and the operator commits an offence.

The revocation of previous regulations means that any waiver forms drafted in compliance with the 2012 regulations must be reviewed. If the prescribed wording has changed even slightly, those older waivers are no longer compliant. The 2022 regulations do not include a savings or transitional provision for existing waivers. Any waiver signed after 27 June 2022 that uses the old wording may be invalid, and the supplier would lose the benefit of the exclusion. Businesses that have not updated their waivers since 2012 are at risk.

Finally, the list of prescribed bodies under regulation 7 is narrow. The Director must refer disputes only to those five bodies. If a dispute falls outside their jurisdiction (for example, a general consumer complaint about a recreational service that does not involve health, legal services, or corruption), the Director may have no prescribed body to refer it to, and the dispute would presumably remain with the Director. However, a supplier that hopes to avoid the Director’s process by having the dispute referred to a particular body cannot rely on the Regulations to achieve that; the Director decides the referral.

Compliance with the Australian Consumer Law and Fair Trading Regulations 2022 is largely a matter of using the correct forms and wording, but the steps differ depending on the role of the person or entity.

For suppliers of recreational services who wish to exclude or limit their liability for death or injury under section 22 of the Act, the first step is to confirm that the services they supply qualify as “recreational services” under the Act. The Regulations do not define that term, so suppliers must look to the Act. If the services are recreational, the supplier must decide through which medium it will communicate the exclusion. There are three options: a sign at the place of supply, a notice given to the purchaser, or a form signed by the purchaser. The supplier may use more than one; but each must comply with the applicable schedule.

If using a sign, the supplier must display the warning and note set out in Schedule 1 on the sign. The warning is: “WARNING: If you participate in these activities your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this sign.” The word “sign” or “notice” must be selected as applicable. The note defines gross negligence. The font size of the warning and note must be at least equal to the largest font size used elsewhere on the sign, excluding the supplier’s name or logo. If the sign contains no other text, the requirement is trivial. But if the sign has a headline such as “Ride the Rapids”, the warning must be in the same font size as that headline. The supplier must ensure that the sign is placed so that it is likely to be seen by purchasers before they participate.

If using a notice given to the purchaser (for example, a printed document handed over at the counter), the supplier must include the wording from Schedule 1. There is no font size requirement for notices, but the notice should be legible and likely to be read.

If using a form to be signed by the purchaser (for example, a waiver signed online or on paper), the supplier must use the wording from Schedule 2. This includes a longer preliminary explanation of the statutory guarantees: “Under the Australian Consumer Law (Victoria), several statutory guarantees apply … These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you are rendered with due care and skill; and are reasonably fit for any purpose …” The form must then include the warning and note as set out in Schedule 2. The purchaser must sign the form. Electronic signatures are likely acceptable under the Act and the Electronic Transactions (Victoria) Act 2000, but the supplier should retain a copy.

The supplier must not attempt to exclude liability for gross negligence. The prescribed wording itself states that the exclusion does not apply to gross negligence. If the supplier includes its own additional clauses seeking to exclude gross negligence, those clauses would likely be void under section 22(3) of the Act and may also breach the Australian Consumer Law prohibition on misleading or deceptive conduct. The safest approach is to use the prescribed wording exactly as drafted, without additions or modifications.

For inspectors issuing an embargo notice, compliance requires using the form in Schedule 3. The inspector must fill in the description of the embargoed thing, indicate whether the notice was served on the occupier or affixed to the thing, sign and date it, and include a telephone number. The inspector should ensure that the person who deals with the thing is aware of the notice to satisfy the knowledge element for a prosecution. The inspector should also consider whether moving the thing for preservation purposes is necessary and whether to grant written consent for certain dealings. The form must be issued under section 162(3) of the Act.

For persons who are served with an embargo notice, compliance is straightforward: do not sell, lease, move, transfer, or otherwise deal with the thing without the inspector’s written consent. If the thing is in danger of being damaged or destroyed (for example, perishable goods), the person may move it only to protect and preserve it, and must be able to prove that purpose if prosecuted. The person should document the reasons for any movement and retain evidence (photographs, expert advice). They should seek the inspector’s consent before any other dealing.

For the prescribed bodies (Ombudsman Victoria, IBAC, etc.), compliance is administrative: they must accept referrals from the Director under section 114(3) of the Act and handle the dispute according to their own procedures. They should have internal processes to identify such referrals and respond promptly.

For practitioners advising suppliers, the key compliance steps are: identify whether the services are recreational; choose the medium; reproduce the exact text from the relevant schedule; for signs, measure and ensure font size compliance; review and update waivers for any change from the 2012 regulations; and advise clients that the exclusion does not cover gross negligence. Record keeping is critical: maintain copies of signs, notices, and signed forms, with dates of use, to demonstrate compliance if a dispute arises.