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The Australian Consumer Law (ACL) was introduced in 2010 under the Competition and Consumer Act 2010 (Cth) (CCA), and there are bodies responsible for enforcing it. All businesses who are providing goods and services to consumers, or even other businesses, should be aware of the ACL. One of the main agencies enforcing the ACL is the Australian Competition and Consumer Commission (ACCC). The states and territories also have state-based legislation and enforcement bodies, including, for example, NSW Fair Trading. This article explains what your business needs to know about enforcing the ACL. 

Substantiation Notices

The ACL offers consumer protection and gives powers to the ACCC to investigate and enforce non-compliance issues with the legislation. One of the enforcement strategies includes the issuing of a substantiation notice. A substantiation notice requires businesses to provide proof of the truth of any claims or representations they have made to consumers.

If you are selling a good or service, you should always ensure that you can substantiate any claims you make, whether in promotional material or directly to consumers. Doing so may protect you from a claim of unconscionable conduct. Additionally, in making certain claims and representations, it is worthwhile to have information ready to justify why any representations you have made are true. This may include: 

  • scientific reports of the claim and its validity; 
  • market research analysis; or 
  • general information that shows proof of the substance of your claim.

If you have been issued with a substantiation notice, you have within 21 days to provide this information, unless the ACCC grants an extension. Also, the response provided by you will be analysed by the ACCC. Further, it may result in a fine or an infringement notice if the details provided are not sufficient enough to substantiate your claims. Non-compliance with a substantiation notice will lead to penalties and fines.

Public Warning Notices

A public warning notice is a notice published on the ACCC’s website warning consumers of certain conduct by a business. As this type of notice can have detrimental impacts on the reputation of a business, the ACCC needs to have reasonable grounds to suspect the business’s conduct is in breach of the ACL. Further, for the ACCC to issue a notice, the ACCC must be satisfied that: 

  • a person has suffered, or is likely to suffer a detriment as a result of the business’ conduct; and
  • it is in the public interest to issue the notice.

A key consideration for the ACCC in evaluating whether it is appropriate to issue a public warning notice will be whether it considers there is an imminent need to inform consumers of the conduct so they can avoid suffering detriment. For example, such detriment may arise where there is: 

  • potential for physical injury from unsafe products; or 
  • concerns about widespread loss through scams. 

The ACCC may also issue a public warning notice where: 

  • a person refuses or fails to respond to a substantiation notice; and 
  • the ACCC considers it in the public interest to issue the public warning notice.

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Section 155 Notices

Pursuant to section 155 of the CCA, the ACCC can issue notices to individuals, businesses or companies requiring them to provide information, documents or evidence. The ACCC issues Section 155 Notices in the context of the ACCC investigating conduct that is potentially in contravention with the law. Additionally, a Section 155 Notice can require an:

  • entity to answer certain questions about its operations, practices and conduct; 
  • entity to provide documents concerning certain matters; and
  • individual to attend an oral examination under oath.

If you have been issued a section 155 Notice, you are required to comply, and non-compliance carries penalties. Therefore, if you can, it is helpful to engage a solicitor to assist you in responding to such a notice and attending an examination, if required. 

Possible Penalties

If the ACCC has undertaken an investigation and decided to take enforcement action, the matter may also end up in court for litigation. Further, if a court believes an individual, business or company has breached the ACL, it can issue: 

  • fines; 
  • civil pecuniary (monetary) penalties; or
  • criminal prosecutions if the breach is serious enough. 

In addition, at the ACCC’s request, the court could also make orders such as:

  • that the individual, business or company implement compliance programs to ensure the impugned conduct is not repeated;
  • that the individual, business or company publish corrective advertising and adverse publicity orders informing consumers of the breach and outcome of the enforcement action; and
  • disqualification of an individual managing a corporation. 

Australian Consumer Law: Tips for Compliance

Businesses need to understand their obligations under the ACL and ensure compliance at all times. Ways of doing this may include:

  • undertaking training in relation to these obligations and providing training to employees;
  • retaining documentation to substantiate any representations your business makes; and
  • updating any legal documents or terms and conditions that are provided to your customers.

These are all effective ways to ensure your business complies with the ACL. In addition, stronger enforcement mechanisms will likely encourage consumers to take up the opportunity to seek recourse.

Key Takeaways

It is important that your business understands its obligations under the Australian Consumer Law (ACL) and ways of enforcing it. However, if you have received an infringement or a substantiation notice, or you simply want to find out what your ACL obligations are, our experienced consumer lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What is a substantiation notice?

Under the Australian Consumer Law, the ACCC may issue a substantiation notice as a way of enforcing the ACL and investigating non-compliance. A substantiation notice requires businesses to provide proof of the truth of any claims or representations they have made to consumers.

What is a public warning notice?

A public warning notice is published on the ACCC’s website warning consumers of certain conduct by a business. The ACCC must have reasonable grounds to suspect the business’s conduct is in breach of the ACL, as this type of notice can have detrimental impacts on the reputation of a business.

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