Tourism Services Act 2003

Without limiting the matters to which regard may be had to decide if an inbound tour operator or tour guide has contravened section 35(1), regard may be had to all or any of the following—

the relative strengths of the bargaining positions of the inbound tour operator (the service provider), the tour guide (also the service provider) or a business associate of the inbound tour operator or tour guide (also the service provider) and the tourist;

whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tourist by the service provider;

the extent to which the service provider unreasonably failed to tell the tourist about—

any intended conduct of the service provider that might affect the interests of the tourist; or

any apparent risk to the tourist from the intended conduct;

the extent to which the service provider failed to tell the tourist about any relationship between the service provider and an entity who was involved in the provision of a service to the tourist;Examples of a relevant relationship between a service provider and an entity—Example 1A service provider owns, has a proprietary interest in, or receives a payment or other benefit from a retail establishment to which the service provider takes a tourist for the purpose of the tourist purchasing goods.Example 2An inbound tour operator publishes, or contributes material to, a brochure for the use of tourists that contains an itinerary for the tourists. The inbound tour operator is the owner of a retail establishment listed in the brochure as a place at which the tourists can purchase goods or services.

whether the tourist’s ability to protect the tourist’s interests was affected by the tourist’s cultural, language or religious characteristics;

the amount for which, and the circumstances under which, the tourist could have acquired identical or equivalent services—

from a person other than the service provider; or

without the help of the service provider;

if the service provider supplies a service of selling goods to a tourist, or taking a tourist to a place to purchase goods or services, the amount for which, and the circumstances under which, the tourist could have acquired identical or equivalent goods or services—

from a person other than the service provider; or

without the help of the service provider;

whether the service provider acted to prevent or dissuade the tourist from making a choice about where to eat, shop, stay or visit in circumstances where it would have been reasonable to have allowed the tourist to make the choice;Example of circumstance in which service provider acts to prevent choice—To facilitate shopping by tourists, a service provider takes them to a retail outlet (the first outlet) in an area away from competing outlets. The provider is aware of competing outlets in places to be visited by the tourists as part of their itinerary but, before taking them to the first outlet, fails to tell them that they will have the opportunity to shop at these outlets also.

the extent to which, in a dealing with the tourist, the conduct of the service provider toward the tourist was consistent with the conduct of the service provider in a similar dealing with other tourists;

whether the service provider deceived or misled the tourist;Examples of deceptive or misleading conduct—Example 1A service provider deceives a tourist by telling the tourist that goods the tourist can purchase from a particular retail outlet are ‘good value’, knowing that identical or equivalent goods are available for considerably lower prices from other retail outlets easily accessible by the tourist.Example 2A service provider misleads a tourist by telling the tourist that certain goods the tourist is considering buying from a particular retail establishment are likely to be confiscated by customs authorities, knowing that the information is untrue or having no reason to believe that it is true.

whether the service provider has contravened a code of conduct;

the provisions of any applicable industry code that the service provider has agreed to be bound by.

In this section—apparent risk means a risk the service provider should reasonably foresee but that may not be apparent to the tourist.business associate, of an inbound tour operator or tour guide (the relevant person), means—

an employee of the relevant person; or

a person with whom the relevant person has a contractual relationship that relates to or affects the tourist, including, for example, a hotelier, restaurateur or retailer with whom the relevant person has a contractual interest that relates to or affects the tourist.