12DMBAssertion of right to payment for unauthorised advertisements

12DMB Assertion of right to payment for unauthorised advertisements

(1) A person must not assert a right to payment from another person of a charge for placing, in a publication, an advertisement, for financial services, relating to: (a) the other person; or (b) the other person’s profession, business, trade or occupation; unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note: Failure to comply with this subsection is an offence (see section 12GB).

(2) A person must not send to another person an invoice or other document that: (a) states the amount of a payment, or sets out the charge for placing, in a publication, an advertisement, for financial services, relating to: (i) the other person; or (ii) the other person’s profession, business, trade or occupation; and (b) does not contain a warning statement that complies with the requirements set out in the regulations; unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the advertisement.

Note: Failure to comply with this subsection is an offence (see section 12GB).

(3) Subsections (1) and (2) do not apply to an advertisement that is placed in a publication published by a person who is: (a) the publisher of a publication that has an audited circulation of 10,000 copies or more per week, as confirmed by the most recent audit of the publication by a body specified in the regulations; or (b) a body corporate related to such a publisher; or (c) the Commonwealth, a State or a Territory, or an authority of the Commonwealth, a State or a Territory; or (d) a person specified in the regulations.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(4) A person: (a) is not liable to make any payment to another person; and (b) is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person; in full or part satisfaction of a charge for placing, in a publication, an advertisement for financial services, unless the person has authorised the publishing of the advertisement. (5) A person is not taken for the purposes of this section to have authorised the placing, in a publication, of an advertisement, unless: (a) a document authorising the placing of the advertisement has been signed by the person or by another person authorised by him or her; and (b) a copy of the document has been given to the person before the right to payment of a charge for the placing of the advertisement is asserted; and (c) the document specifies: (i) the name and address of the person placing the advertisement; and (ii) particulars of the advertisement; and (iii) the amount of the charge for the placing of the advertisement, or the basis on which the charge is, or is to be, calculated. (6) In a proceeding against a person in relation to a contravention of this section, the person bears the onus of proving that the person knew or had reasonable cause to believe that the person against whom a right to payment was asserted had authorised the placing of the advertisement.