The role of the ACL regulators and the courts
No law is workable unless there is a means to ensure that businesses and individuals comply with it. The ACL is enforced by all Australian courts and tribunals, including the courts and tribunals of the states and territories.
The law is policed by a national independent statutory agency, the Australian Competition & Consumer Commission (ACCC), and by each of the state and territory consumer protection agencies. Together with the Australian Securities & Investments Commission (ASIC), these regulatory bodies are known as the ACL regulators.
The Australian Securities and Investments Commission Act 2001 (ASIC Act) contains provisions which are similar to some aspects of the ACL, applying to financial products and services.
The ACL regulators are responsible for educating businesses and the public about their rights and obligations under the law, investigating possible breaches of the law and taking enforcement action against persons who have breached the law.
The ACL regulators can take action to:
- stop unlawful conduct
- deter future offending conduct
- obtain remedies, where possible, that will undo the harm caused by the contravening conduct (for example, by corrective advertising or securing redress for those adversely affected by the conduct)
- encourage the effective use of compliance systems
- take action in the courts, where warranted, to obtain orders which punish the wrongdoer by imposing penalties or fines and to deter others from breaching the ACL.
Each ACL regulator works on matters occurring in the state or territory in which they are located, with the ACCC having federal jurisdiction. The ACCC pursues matters based on its compliance and enforcement policy (available on the ACCC website) which is reviewed on a regular basis and may change based on emerging trends and priorities.
The ACCC's enforcement process generally follows the following steps.
Potential breaches of the ACL come to the attention of the ACCC (and other ACL regulators) through a variety of avenues including complaints, investigations undertaken by the ACCC and self-reporting.
Reports: The ACCC relies upon reports to identify conduct worthy of further investigation and possible enforcement action. These reports may come from customers, competitors or suppliers of businesses involved in conduct that breach or may breach the law.
ACCC-initiated investigations: The ACCC also actively monitors particular industries and practices and undertakes proactive information-gathering activities.
The ACCC uses a range of investigative tools when investigating potential breaches of the competition and consumer law.
Voluntary requests: The ACCC will typically commence its investigations by asking persons or businesses with potentially relevant information to provide such information voluntarily.
Section 155 notices: The ACCC is able to issue statutory demands for information (known as section 155 notices) where it has reason to believe that an individual or business is capable of providing information, documents or evidence in relation to an investigation. Failure to comply with a section 155 notice, or providing false or misleading information, constitutes an offence and penalties (including imprisonment for up to 12 months for individuals) can be imposed.
The ACCC adopts a range of strategies aimed at ensuring compliance with the ACL. The ACCC's primary goal is to encourage compliance with the Competition and Consumer Act 2010 (Cth) (the CCA), including the ACL and this goal is pursued through the following means:
Stakeholder engagement: The ACCC promotes compliance with the ACL through education programs and campaigns, and by issuing guidelines that help businesses and consumers understand their rights and responsibilities.
Voluntary compliance strategies: The ACCC undertakes a range of initiatives aimed at achieving voluntary compliance with the ACL. These initiatives, which build upon the educational programs, range from assisting with the development of individual compliance programs and campaigns to sector-wide initiatives, such as the development of voluntary industry codes of conduct.
Administrative resolution: The ACCC has the discretion to resolve an alleged breach by reaching an agreement with the business in question. This may eliminate the need for the matter to go to court. When deciding on this course of action, the ACCC will consider the extent of the harm caused by the contravention, the deliberateness of the conduct and whether the business in question has previously breached the law.
Enforceable undertakings: The ACCC may accept a court enforceable undertaking under which the business that has broken the law undertakes to cease the conduct and remedy any harm caused by the conduct.
Litigation: Court proceedings are likely where the conduct is particularly egregious, where the alleged contravener denies liability (thus ruling out options such as administrative resolution or court enforceable undertakings) and where the alleged contravener has a history of infringements.