ACL

Overall Checklist of the ACL

These are hyperlinked notes to various sections of the Australian Consumer Law, made to assist with my BLAW20003: Consumer Law class at the University of Melbourne.

Section	General Overview	Applies to who / what?	What kinds of transactions?
18	Misleading or deceptive conduct + application to information providers	Natural persons (State) Businesses, telephone deals, interstate/overseas (Commonwealth) Future events Bypasses exclusion clauses Does not bypass silence Applies to conduct which is likely to mislead or deceive the reasonable consumer (note: confusion is not misleading) Must show causation	In trade or commerce (employees count too) Requires the existence of a consumer Misleading or deceptive advertisements (see s 251 for publisher’s liability)
	See also: s 19 for media exclusions s 251 for advertisement publisher’s liability s 29 for (specifically) false or misleading representations about goods or services, which can impose criminal liability s 29(1)(m) or s 151(1)(m) which prohibits an attempt to exclude liability under the ACL
19	Exclusion of s 18 for media outlets	Protects media outlets from liability for s 18 Does not extend to advertisements or material published in connection with the possible supply of goods or services, or self-promotion
	See also: s 251 for advertisements
20	Unwritten law unconscionable conduct (Blomley v Ryan) (Commercial Bank of Australia v Amadio) (Thorn v Kennedy) (Kakavas v Crown Melbourne)	Developed to “prevent victimisation of the weaker party by the stronger” Two preconditions: W must suffer from some special disability or disadvantage which prevents them from looking after their best interests D must be aware of this disadvantage and take unfair advantage Acquisition of goods and services No criminal equivalent	Must occur in trade or commerce Not restricted to consumer transactions Must not be prohibited by s 21
	Notes: In contrast to unwritten law, which provides a private remedy, provisions s 20-22 prohibit unconscionable conduct. This allows transgressors to be punished if the ACCC pursues action See also: s 21, 22 are used more by consumers as they are statutory s 50 which prohibits harassment
21, 22	Statutory unconscionable conduct (ASIC v Kobelt)	Definition of unconscionable conduct will be similar to s 20 No criminal equivalent s 22 lays out matters that s 21 can be applied to	Trade or commerce Not restricted to consumers
23 – 25, 27, 250	Unfair terms (Jetstar v Free)	Enables terms in contracts to be void in the case of unfairness Regards goods, services or land Does not cover upfront price, terms required by law An unfair term is void and thus unenforceable, thus no rights and obligations on either party Penalties can now be imposed for including an unfair contract term (Treasury Laws Amendment (More Competition, Better Prices) Act 2022) Enforced via s 250, which can grant an injunction against the use of the term or vary the contract Failure to comply: contempt of court	NOT in trade or commerce Applies to consumer or business contracts Must be a standard form contract Excludes cases found in s 28
	Notes: A consumer contract (s 23): Does not need to involve a consumer Is for the supply of goods or services or land Predominantly purchased for personal, domestic, or household use or consumption – does not have to be a good ordinarily used for such reasons Small business contract (s 23): Is for the supply of goods or services or land Business has <100 persons and/or turnover for previous income year was less than $10million (Used to be 20 and $300,000) Standard form contract (s 27) Essentially a non-negotiated contract – one that was accepted, pre-written, with no negotiation Even a little bit of negotiation would form a rebuttal Unfair term (s 24 with examples in s 25) has all three features: Significant imbalance in rights and obligations Not be reasonably necessary to protect the party relying on the term Causes detriment to a party if enforced See also: s 28, containing exclusions
26, 28	Exclusions to the Unfair Contract Terms regime	s 26 excludes terms which: Define the main subject matter of the contract Set the upfront price payable (consequently, Australia has no provision to control price gouging) Are required by law s 28 contains very specific/technical excl. Reason for these exclusions is that large business interests do not want to be exposed to liability under this regime
29, 151	False or misleading representations about goods / services (liability exclusion: LG Electronics, Sem 7 slide 15)	Essentially a smaller, more restrictive s 18 Notably it prevents attempting to deny s 18’s power Prohibits 16 forms of false or misleading representation, particularly the “standard, quality, value, or grade of goods or services”¹ s 29(1)(m) makes it an offence to make a false representation about the rights of consumers in obligation to it Once a supplier provides information, they must provide everything; however, they can exclude information	In trade or commerce Can contravene s 29 even if nobody has been misled
	Usage: while a consumer may seek to use this to seek a civil remedy, this is unlikely as this is all covered by s 18. Instead, a consumer may choose to use the criminal equivalent, s 151, which carries a criminal offence See also: s 30 for land representations s 31 for misleading conduct relating to employment s 33, s 34 for misleading conduct as to the nature of goods/services s 37 for misleading representations about business activity (profitability, risk, etc)
30 , 152	False or misleading representations about sale of land (ACCC v Gary Peer & Associates)	Similar to provisions for the sale of goods or services, but for the sale of land covers nature of interesting features in the land, price, location, characteristics, how the land can be used, facilities	In trade or commerce
31 , 153	Misleading conduct relating to employment (ACCC v Zanok)	Covers availability, nature, T&C of a job Think of the future situations -conditions for deception If a job vacancy is advertised, but applicants are told during the interview that it no longer exists, they are liable Company is liable for alerting the applicant before they come to the interview	Not restricted to conduct occurring in T or C “in relation to employment that is to be” Can apply to contracts for services
32 , 154	Offering rebates, gifts, prizes (Seminar 10 slide 5)	Must not offer rebates/gifts/prizes or free items with no intention to provide Unlawful to run a “buy one get one free” promotional campaign if the price of the item being sold was increased from its usual selling price, to offset the cost of the second item Two situations: Where it is possible for a consumer to purchase just one of the items for less than the offer price Where the offer price is higher than the price at which one item could have been purchased from the supplier, before the offer was promoted	In trade or commerce
33 – 34 , 155 – 156	Misleading the public as to the nature of goods / services (ACCC v Apple, iPad 4G)	Only applies to conduct directed at the public 33 for goods, 34 for services	Conduct liable to mislead members of the public only Can overlap with s 29 – some forms of conduct can lead to liability under both provisions
35 , 157	Bait advertising	Offering items for sale at very low prices to attract consumers to a business The prohibition occurs when businesses do not offer items for sale at the advertised price, in reasonable quantities or for a reasonable time, or knew that they would not be able to do so Valid defence: “we weren’t aware the product would be as successful as it was”
36, 158	Wrongly accepting payment	ACL prohibits business from accepting payment for goods or services if it does not intend to supply them at all, or supply materially different goods or services 36(4) provides that a business which has accepted payment for goods or services must supply all those within the agreed time; on the other hand, the ASIC has no such equivalent	Related to accepting prepayment for goods or services Examples: deposits if the business does not intend to supply
37 , 159	Misleading representations about certain business activities	Must not make a false statement concerning the profitability, risk, or any other material aspect of business activity… … that the person invites others to participate or engage in, or invest in	In trade or commerce
38 , 160	Application of false / misleading representations provision to information providers
39 , 161	Unsolicited cards	Prohibits business from sending credit or debit card to anyone, unless they have requested the card in writing or it is being sent to replace an existing card Offence for a card provider to enable a credit card to be used as debit or vice versa without written permission
40, 43 , 162 , 163	Asserting payment for unsolicited goods or services + unauthorised entries / advertisements	Person must not assert the right to payment from another person	In trade or commerce For unsolicited goods or services
	See also: s 41-42 for the liability of the recipient
41 – 42	Liability of recipient for unsolicited goods / services (“inertia selling”)	Recipient of unauthorised item is not obliged to pay Recipient protections: Not liable for any loss or damage to the goods unless wilful and unlawful After a recovery period (1-3 months typically), the goods will become the property of the recipient unless they unreasonably prevent the sender from recovering them Not liable for any loss or damage resulting from the supply of the services Cannot assert a right to payment without reasonable cause (s 10 – demanding payment or threatening to sue for money, placing person on a defaulters list, invoking collection proceedings etc.)
44 – 46 , 164	Pyramid schemes	A Ponzi/pyramid scheme rewards participants for recruiting new members rather than selling real goods or services Involves two things: a joining fee + being induced to pay the fee by the prospect of earning a ‘recruitment payment’ when they introduce new members ACL prohibits participation in a pyramid scheme as well as persuading others to do so As opposed to marketing scheme which induces participants through the prospect of earning commissions through selling real good or services – this is not illegal
47, 165	Multiple pricing	Prohibits a business from displaying multiple prices but selling from anything apart from the lowest price To avoid liability (i.e. catalogue error) the business can: Retract the price and publish the retraction as publicly Withdraw the goods from sale Charge the consumer the lowest of those prices Consumer has no right to purchase the goods at the lowest price
48, 166	Component pricing	When a business splits a transaction into components and then advertises the lower component price For instance, quoting a price without tax Only allowed if the supplier specifies the total amount as a single figure in a prominent way	Only for consumer goods or services Does not apply to: Certain delivery charges Representations made to corporations Optional charges the customer can choose to avoid Charges which cannot be quantified at time of contract, but which can be calculated in a transparent way The supply of services under a contract where they are paid periodically
49 , 167	Referral selling	Supplier induces customer to acquire goods or services by promising a benefit if they assist the supplier to secure more customers Prohibited where receiving the benefit depends on an event (such as sale) occurring after the supply contract is made
50 , 168	Harassment and coercion (ACCC v Panthera)	Prohibits undue harassment, which is conduct ‘calculated to intimidate, demoralise, tire out, or exhaust the person targeted’ Coercion means using/threatening physical force Conduct can amount to H & C even if it is not illegal or directed at someone other than the real target Doesn’t matter if the creditor has a contractual right to recover the goods Includes blackmail	In relation to the sale of goods, services, or land In relation to the payment of the sales above
51 – 53	Non T/C consumer guarantees (goods)	Consumer guarantees 51: the supplier has the right to dispose of ownership in the goods, unless otherwise agreed 52: The consumer’s possession of the goods will not be disturbed unless supply was of a limited ownership 53: No undisclosed securities attached to the goods	Applies to goods Exception: limited title Exception: hire/lease for s 51
54 – 59	T/C consumer guarantees (goods)	54: Acceptable quality Exception: consumer error or consumer examined goods prior to purchase 55: Reasonably fit for purpose Exception: consumer’s decision did not rely on the supplier’s advice 56: Goods will correspond with their description 57: Goods will correspond with a sample or demonstration model Exception: defect would be apparent on a reasonable examination 58: Repair facilities and spare parts are available Exception: If consumer has written notice that repair/spare parts are not available 59: *Manufacturers and* suppliers** will comply with express warranties	Applies to goods Exceptions apply, primarily for auctions
60 – 63	T/C consumer guarantees (services)	60: Services will be provided with due care and skill Exceptions: none 61(1): Services will be reasonably fit for the disclosed purpose Exceptions: architects and engineers 61(2): Services will achieve the result that the consumer made known to the supplier Exceptions: architects and engineers 62: Services will be supplied within a reasonable time unless the parties indicate otherwise	All businesses and professionals with exclusions 64(A)
64	Unallowed guarantees exclusions	Makes ineffective any attempt to: Exclude a guarantee Prevent reliance on a guarantee Prevent liability arising from non-compliance Attempts to do so are ineffective and violate the ruling
64A	Guarantees of reduced liability	Liability can be limited to repairing or replacing goods that do not meet a consumer guarantee Cannot exclude liability entirely Does not apply to title, quiet possession, and encumbrance guarantee A term will not be effective to limit the liability if their reliance on it is unreasonable	Non-consumer goods or services only
	CCA s 139A allows the suppliers of recreational services to contractually exclude, restrict, or modify their liability for death, personal injury, or illness Cannot be done in relation to property damage or loss, or significant personal injury caused by reckless conduct See also: s 275
69 – 72	Unsolicited consumer agreements (definitions in 71, coverage in 72)	Unsolicited agreement has four elements: Must be for the supply in T or C of consumer goods or services to a consumer … Applies only to agreements to supply consumer goods or services to private individuals or businesses Negotiated at a dealer at a place alternative to the supplier’s business premises or by telephone Consumer must not have invite the dealer for the purpose of entering into the agreement Price payable must not be ascertainable at time of sale, or over $100 70: presumes agreements are unsolicited consumer agreements if it is alleged and no other person proves otherwise	As per 69, this excludes: Business contracts: made for commercial goods or services Discontinued agreements: consumer has discontinued negotiations but supplier afterwards contacts Agreements made at a party plan (lingerie party) Renewal agreements Subsequent agreements
73 , 170	Permitted hours for UCAs	See readings p 115
74 , 171	Disclosing purpose and identity
75 , 172	Ceasing to negotiate on request
76 , 173	Informing person of termination period
77	Liability of suppliers for dealer contraventions
78 – 81 , 174 – 177	UCA requirements
82 – 83	Terminating UCAs
84 , 178	Obligation of suppliers on termination of UCAs
85	Obligations of consumers on termination of UCAs
86 , 179	Prohibition of supplies after UCAs
87 – 88 , 180 – 181	Repayments and recovering amounts after terminating a UCA
96 , 188	Lay-by agreements in writing
97 – 98 , 189 – 191	Termination of lay-by agreements by consumers and suppliers
99	Effect of lay-by termination
104 – 105	Safety standards for consumer goods and product related services (making + declaring)
106 – 107 , 194 – 195	Supplying consumer goods or product related services that do not comply with standards
108 , 196	Requirement to nominate a safety standard
109 – 113	Interim bans on consumer goods or product related services
114 – 117	Permanent bans on consumer goods or product related services
118 – 119 , 197 – 198	Supplying banned consumer goods or product related services
122 – 123	Compulsory recall of consumer goods + recall notices
124 , 199	Obligations of supplier in relation to recall notices
125 , 200	Notifying non-Australian persons who supply recalled consumer goods
126	Dealing with multiple recall notices
127	Compliance with recall notices
128 , 201	Voluntary recall of consumer goods
129	Safety warnings about consumer goods and product related services
130	Announcement of the results of an investigation
131 – 132A , 202	Reporting death / serious injury / illness relating to consumer goods or product related services
134 – 135	Declaring and making information standards for goods and services
136 – 137 , 203 – 204	Supplying goods and services that do not comply with information standards
138 – 141	Liability of manufacturers for an injured individual, other persons, damaged goods, land, buildings, fixtures
142	Defences to defective goods actions
143	When to commence defective goods actions
144	Liability joint
145	Survival of actions
146	No defective goods action where workers’ compensation law applies
147	Unidentified manufacturer
148	Commonwealth liability for goods noncompliant with CW mandatory standard
149	Representative actions by the regulator
251	Publisher’s liability for advertising	The publisher of an advertisement may contravene s 18 of the ACL merely by publishing it, even though they were not its author Liability can be avoided if: (s 18) It is clear the publisher is merely a conduit and does not adopt/endorse its contents (s 251) If the publisher is in the business of publishing advertisements, and the publisher had no reason to suspect that it was misleading	Publishment of advertisements
255	Safe harbour defence
259, 260, 262, 263	Major defect	Defines a major failure as any of the following situations: Goods would not have been acquired by a reasonable consumer fully aware Significant depart from description or sample Goods are substantially unfit for a purpose for which they are commonly used Goods are unfit for a disclosed purpose made known to the supplier Goods are not of acceptable quality because they are unsafe Remedies available: see Page 106 of Readings
275	State and Territory limitations (Moore v Scenic Tours)	S & T’s can preclude or limit liability for failure to comply with the four supply of service guarantees produced Applies to all services, not just recreational ones Allows the protection of S or T law to exclude liability, not just contractual (i.e. CCA s 139A)	Only supply of recreational services Only refers to individual S or T limitations

s 29 prohibits 16 forms of false or misleading representation

the standard, quality, value or grade of goods or services

that the goods are new

that a particular person has agreed to acquire these goods or services

that the goods or services have been purchased, endorsed, or sponsored by a particular person

that goods or services have certain sponsorship, approval performance characteristics, accessories, uses or benefits

that the person making the representation has sponsorship, approval or affiliation

the price of the goods or services

the availability of repairs and spare parts for the goods

where the goods originate from

the need for the goods or services

the existence or exclusion of any condition, warrantee, guarantee, right or remedy available under the ACL

the need to pay for a contractual condition, warranty or guarantee equivalent to those that a consumer has under the ACL

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