The document is a presentation on the Competition and Consumer Act 2010 and the Australian Consumer Law, highlighting essential consumer rights, protections, and business obligations related to fair trading and consumer guarantees. Key topics include misleading conduct, unconscionable conduct, unfair contract terms, product safety, and strategies to protect businesses from scams. Furthermore, it offers resources for small businesses to better understand and comply with these laws.

1. Competition & Consumer Act 2010
& the Australian Consumer Law
Miranda Chamber of Commerce
Workshop
25 September 2013
Presented by Michael Jerabek
Education & Engagement Manager (NSW & ACT)

2. Australian Competition & Consumer Commission
National law enforcement agency responsible for
administering the Competition and Consumer Act
2010, which aims to:
• promote competition and fair trading; and
• protect consumers
NSW Fair Trading/Consumer Trader Tenancy Tribunal

3. What will I cover today?
• Assessing your awareness of your rights and responsibilities under
the CCA/ACL
• Consumer guarantees & voluntary (express) warranties
• Misleading & deceptive conduct/false & misleading representations
• Unfair contract terms law
• Unconscionable conduct
• Product Safety
• Small business scams
• Restrictive trade practices
• Other useful agencies
• Q&A

4. Negotiating, selling and advertising…
• ‘If you say something dishonest, you’re breaking the
law, but not mentioning something is ok.’
• ‘A business owner can be liable for comments made on
their business’ social media by 3rd
parties if those
comments are misleading.’
• ‘A statement may be true in fact yet be considered
misleading in law.’
True or False?

5. Faulty goods and/or returns…
• A customer tries to return a good purchased from you
that is faulty due to a manufacturing defect but you refer
her to the manufacturer instead as that is where the
source of the problem lies
Signs in store or online:
• ‘Be warned - No refunds given under any
circumstances’
• ‘No refunds given for change of mind’
• ‘Refund given on demand for goods in original condition’
What are the implications, if any, of the above?

6. Consumer guarantees
Consumer guarantees apply to:
• goods or services of any type up to $40,000 in value (and...)
• purchased but also leased and hired
• online, over the phone or in person
• both new & second hand
Consumer guarantees do NOT apply to:
• one-off sales (e.g. private sales such as car or garage sale)
• buying to on-sell (e.g. car repairer purchasing parts to be used in repairs)
• If consumers simply change their minds
• If consumers misuse the goods
• If purpose not specified and not obvious from the circumstances

7. Nine consumer guarantees applying to goods:
• Acceptable quality (acceptable
appearance & finish, free from
defects, safe & durable)
• Reasonably fit for purpose
• Description is accurate
• Goods match sample
• Reasonable availability of spare
parts & repair facilities for
reasonable length of time
• Voluntary (express) warranties to
be satisfied
• Suppliers guarantee clear title
• Suppliers guarantees undisturbed
possession
• Goods to be free of hidden
securities or charges
If any of these guarantees are not met, the consumer
has a right to a remedy.

8. Three consumer guarantees applying to services
A supplier must meet the consumer guarantees of
providing services:
• with due care and skill
• which are fit for any specified purpose
• within a reasonable time (when no time is set)
If any of these guarantees are not met, the consumer
has a right to a remedy.

9. Consumer guarantees – important concepts
• Major failure
• Minor failure
• Consequential loss
• Rejection period
• Trader’s v manufacturer’s/importer’s
responsibility
• Consumer guarantees v voluntary warranties

10. Misleading & Deceptive Conduct
It is unlawful for a business to make statements in trade or
commerce that:
• are misleading or deceptive, or
• are likely to mislead or deceive
• Failing to disclose relevant information, promises, opinions and
predictions can be misleading/deceptive
• Advertisements, promotions, quotations, statements and any
representations made by a person are included
• ‘Small print’ and disclaimers no excuse
• Overall impression considered

11. False & Misleading Representations
• It is unlawful for a business to make false or misleading
representations about goods or services when supplying, offering
to supply or promoting them
• An offence punishable by a fine of up to $220,000 for an individual
and $1.1 million for a body corporate
• Representations can be made:
– Verbally or in writing
– In person, online, over the phone or through correspondence
– In packaging/promotional material
– Through words, pictures or symbols or combination thereof

12. A business must not make false or misleading
representations about:
• standard, quality, value or grade of goods & services
• place of origin of a product
• buyer’s need for the goods or services and whether the goods are
new (also their history & use)
• sponsorship, approval, performance, benefits and uses of goods
and services
• price of goods and services
• any guarantee, warranty or condition
Also:
• Whether a representation is misleading may depend on the
characteristics of a specific group
• A representation can be misleading even if it s true or partly true

13. Advertising & Selling
• Comparative advertising (use with caution)
– Is the comparison accurate?
– Are the products/services similar?
– Is the comparison valid for life of promotion?
• Two-price advertising (use with caution)
– Was / now price; RRP / sale price
– Price comparisons must be accurate & genuine
– Sufficient number of goods must be sold at previous price for
reasonable period
– Goods must be actually sold at RRP
• Clarity in Pricing
– If component prices are used, single total price must be provided

14. Unconscionable conduct
• Under the ACL unconscionable conduct covers business to
business transactions as well as business to consumer
transactions
• UC can be described as behaviour which is irreconcilable with what
is right or reasonable and is seen as harsh and/or oppressive
• Usually involves a stronger party exploiting its bargaining
advantage to impose terms or conditions that are unreasonable or
against good conscience towards a smaller or weaker party

15. Some examples of possible unconscionable conduct
• Failing to disclose important contractual terms
• Not allowing sufficient time for consumer to read
agreement, seek advice, ask questions & decide
• Refusing to deal with legitimate complaints
• Not explaining terms of contract to consumers from
NESB
• Using friends/relatives to influence decision-making
• Refusing to accept ‘No’ for an answer

16. Unfair contract terms
• ACL enables a court to find a contract term unfair &
declare it to be VOID (treated as if it never existed)
• Applies to standard form contracts including written
and oral – over the phone or face to face.
• Applies to contracts entered into on or after
1 July 2010, and terms of contracts altered on or after 1
July 2010
• Contract remains binding to the extent that it can
operate without the unfair term

17. Unfair contract term test
• Does the term create a significant imbalance between
rights and obligations of the two parties?
• Is the term reasonably necessary to protect legitimate
interests of the business?
• Would the term cause a detriment (financial or non-
financial) if the business tried to enforce it?
• How transparent is the term?

18. Product Safety
• Imposing mandatory safety standards
• Product testing
• Issuing public safety warning notices
• Issuing compulsory recall notices
• Banning unsafe products
• Mandatory reporting
www.productsafety.gov.au
www.recalls.gov.au

19. Small business scams
• Overpayment scams
• Directory entry/unauthorised advertising scams
• Domain name scam
• Office supply scam
• Email intercept scam
• Ransomware scam

20. Protecting your business from scams
• Have clear procedures for verifying, paying and managing accounts
and invoices
• Limit number of staff authorised to place orders & pay invoices
• Keep filing & accounting system well organised
• Make sure the business billing you is the one you normally deal
with, verify ID of person speaking to you & who they represent
• Install reputable computer protection software & firewall
• Subscribe to scam notification service: www.scamwatch.gov.au
• Do not agree to deals/offers straight away – if it sounds too good to
be true, it probably is!

21. Selling goods online
Whether you’re trading online or through a retail outlet,
your customers’ legal rights are the same:
•Right to accurate information
•Right to a fair contract
•Right to a safe product
•Right to repair, refund or replacement
Australian Guidelines for Electronic Commerce 2006 (Australian
Government Treasury) – ‘Best Practice’ model

22. Restrictive Trade Practices
• Cartel conduct (s.44)
• Anti-competitive agreements (s.45)
• Misuse of market power (s.46)
• Exclusive dealing (s.47)
• Resale price maintenance (s.48)
• Prohibition of acquisitions (s.50)

23. New ACCC resource available
Free online
education program
for small
businesses on
Australia’s
competition and
consumer laws
www.ccaeducationprograms.org

24. Purpose & content of program
• Access this free online education program, funded by
the ACCC, to learn more about your rights & obligations
under the Competition and Consumer Act 2010
• There are 10 modules, covering the following topics:
Misleading conduct & advertising Consumer contracts
Pricing & unfair selling practices Unconscionable conduct
Consumer rights & guarantees Exclusive dealing
Selling safe products Cartels
Scams Misuse of market power

25. Further information
• Call the ACCC Infocentre – 1300 302 502
• Visit www.accc.gov.au
• Visit www.productsafety.gov.au
• Visit www.scamwatch.gov.au
• Visit www.consumerlaw.gov.au
• Subscribe to the
ACCC Small Business Information Network
for regular fair trading email updates

26. Other useful agencies
• NSW Small Business Commissioner (advocacy,
advice & mediation)
web: http://www.smallbusiness.nsw.gov.au
Infoline: 1300-795-534 or 8222-4800
• NSW Fair Trading (education, licencing & compliance)
web: www.fairtrading.nsw.gov.au Infoline: 13-32-20
• ASIC
web: www.asic.gov.au Infoline: 1300-300-630

27. Open forum
Any questions arising from the checklist or the
presentation?

28. Small business self assessment checklist
• You have 15 minutes to complete the checklist
• Write down any questions that may come up for you
• Feel free to discuss with your neighbour/s when finished