12DBFalse or misleading representations

#### 12DB False or misleading representations (1) A person must not, in trade or commerce, in connection with the supply or possible supply of financial services, or in connection with the promotion by any means of the supply or use of financial services: (a) make a false or misleading representation that services are of a particular standard, quality, value or grade; or (b) make a false or misleading representation that a particular person has agreed to acquire services; or (c) make a false or misleading representation that purports to be a testimonial by any person relating to services; or (d) make a false or misleading representation concerning: (i) a testimonial by any person; or (ii) a representation that purports to be such a testimonial; relating to services; or (e) make a false or misleading representation that services have sponsorship, approval, performance characteristics, uses or benefits; or (f) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or (g) make a false or misleading representation with respect to the price of services; or (h) make a false or misleading representation concerning the need for any services; or (i) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); or (j) make a false or misleading representation concerning a requirement to pay for a contractual right that: (i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including an implied warranty under section 12ED); and (ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law). > Note: Failure to comply with this subsection is an offence (see section 12GB). (1A) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in paragraph (1)(c) or (d), the representation is taken to be misleading unless evidence is adduced to the contrary. (1B) To avoid doubt, subsection (1A) does not: (a) have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or (b) have the effect of placing on any person an onus of proving that the representation is not misleading. (2) Conduct: (a) that contravenes: (i) section 670A of the Corporations Act (misleading or deceptive takeover document); or (ii) section 728 of the Corporations Act (misleading or deceptive fundraising document); or (iii) section 738Y of the Corporations Act (other liabilities relating to CSF offer documents); or (b) in relation to a disclosure document or statement within the meaning of section 953A of the Corporations Act; or (c) in relation to a disclosure document or statement within the meaning of section 1022A of the Corporations Act; does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence. (3) An offence under subsection 12GB(1) relating to subsection (1) of this section is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code.