The regulatory framework that governs the operation of competition and consumer law in Australia is largely contained in the Competition and Consumer Act 2010 (CCA). Many people know this legislation as the Trade Practices Act which was an earlier version of competition and consumer protection legislation.
Consumer protection provisions are contained in Schedule 2 of the CCA. Schedule 2 is referred to as the Australian Consumer Law (ACL).
The ACL deals with the types of conduct and issues that most affect consumers such as misleading or deceptive conduct, unconscionable conduct, unfair practices, conditions and warranties, product safety information, manufacturer’s liability for goods with safety defects and which party will be responsible for defects in imported products. The ACL has been adopted as a model for the fair trading regimes used throughout in the various Australian states and territories. Often the state based legislation is referred to as a Fair Trading Act.
Understanding your obligations under the CCA and the ACL as well as how this legislation is administered is a necessary and important part of successfully conducting business in Australia today.
The Australian Competition and Consumer Commission (ACCC)
The ACCC is an independent statutory authority tasked with being the principle regulator of all competition and consumer legislation in Australia. As such it is a powerful body with significant responsibilities.
Changes to consumer & competition law
From 12 November 2016 the Unfair Contract Terms Regime (UCT Regime) was extended to cover standard form contracts entered into with ‘small business’. The changes apply to any standard form small business contract for the supply of goods and services, including financial services or products or an interest in land. Importantly, the UCT Regime will apply whenever one party to a contract falls within the definition of a ‘small business’ even if the other party is not a small business. A wide range of contracts will be affected including franchise agreements.
We are able to advise and assist clients in relation to all aspects of regulatory compliance including:
- Ensuring you meet your current obligations under the CCA and ACL as well as advising you as to how best to meet additional obligations under the UCT regime;
- Advising and assisting in relation to investigations and inquiries carried out by the ACCC into your business;
- Advising in relation to the legality of proposed advertising campaigns;
- Reviewing and advising in relation to business contracts including contracts with small business;
- Developing and implementing training, compliance and audit programs to ensure your business does not act in breach of its legal obligations under the CCA and the ACL in respect of consumer and competition law;
- Advising and acting in relation to commercial disputes arising out of claims of restrictive trade practices, misleading and deceptive or unconscionable conduct. This includes when these types of claims are made against you or, alternatively, when you are of the view that another party’s conduct has resulted in loss or damage to you as a result of these types of business practices;
- Advising in relation to franchising agreements including contract review and preparation to ensure compliance with all relevant laws; and
- Advising in relation to commercial disputes including restraints of trade issues arising out of employment contracts.
The penalties for breaching competition and consumer protection laws are significant. The ACCC has very broad investigatory powers and will not hesitate to use them if it believes that a breach of the law has occurred. It is therefore essential that all businesses not only understand their obligations but have the tools and expertise available to them to ensure that they are able to fulfil their legal obligations.
Our experienced commercial and business services lawyers are able to work with you and your team to guide and advise you through all areas of consumer and competition law and look forward to assisting you.