Fines and penalties

  • Breaches of the Competition and Consumer Act 2010 and the Australian Consumer Law attract fines and pecuniary penalties.
  • Some breaches are civil and can result in monetary fines.
  • Some breaches are criminal, and can result in monetary fines and/or jail time. 

How fines and penalties are determined

A number of factors are taken into account by the courts in determining the appropriate fine or level of penalty. The relevant law sets out the maximum penalty for any contravention. This may be by reference to a monetary amount, a number of ‘penalty units’, or to some other method - for example,  turnover.

Criminal breaches

Some breaches of the law are criminal. In these cases a criminal standard of proof is required.

Criminal breaches can result in a fine, which is a monetary fine imposed by the courts as a penalty in criminal proceedings.

Criminal breaches may also result in jail time.

Civil breaches

Some breaches of the law are civil. In these cases, the civil standard of proof is applied. This is known as the balance of probabilities.

Pecuniary penalties in civil cases are monetary fines imposed and collected by civil courts. Civil breaches do no result in jail time.

The calculation of the monetary amount of a penalty is dependent on ‘penalty units’ that are set out in the Crimes Act 1914. On 1 January 2023, the value of the penalty unit for Commonwealth criminal offences will increase from $222 to $275.

In addition, increased maximum pecuniary penalties for certain contraventions of the CCA and ACL commenced on 10 November 2022, and will apply in relation to acts, omissions or offences that occur on or after this time. The amounts listed below reflect the current maximums. For acts, omissions or offences prior to 10 November 2022, the previous maximums will apply. 

Anti-competitive and restrictive trade practices

Anti-competitive practices

Part IV of the Competition and Consumer Act 2010 prohibits anti-competitive practices such as:

Corporations

The maximum pecuniary penalties for breaches of Part IV are the greater of:

  • $50,000,000
  • if the Court can determine the 'reasonably attributable' benefit obtained, 3 times that value, or
  • if the Court cannot determine the benefit, 30% of the corporation's adjusted turnover during the breach turnover period for the offence.

The adjusted turnover is the sum of the value of all the supplies that the corporation (and any related corporation) has made or is likely to have made during the breach turnover period, with some exclusions. The breach turnover period will generally represent the duration of the breach, but 12 months is the minimum period over which the sum is calculated .

Individuals

The maximum pecuniary penalty for breaches of Part IV is $2,500,000.

Secondary boycotts

For secondary boycott conduct which has the purpose, or would have the effect or likely effect, of causing a substantial lessening of competition, the maximum pecuniary penalties for corporations are the same as for anti-competitive behaviour explained above. 

For other secondary boycott conduct, the maximum pecuniary penalties for corporations is $750,000.

Cartels

The Competition and Consumer Act 2010 prohibits cartels under civil law and also makes it a criminal offence for businesses and individuals to participate in a cartel.

Corporations

Corporations can face fines or pecuniary penalties for each criminal cartel offence or civil contravention.

The maximum fine or pecuniary penalty amount for each criminal cartel offence or civil contravention, whichever applies, are the same as for anti-competitive behaviour explained above. 

The maximum pecuniary penalties for civil contraventions of the cartel prohibitions by individuals in $2,500,000.

Individuals

Individuals found guilty of criminal cartel conduct could face:

  • up to 10 years in jail; or
  • fines of up to 2,000 penalty units ($444,000. For conduct on or from 1 January 2023, this amount will increase to $550,000) per criminal cartel offence.

A corporation must not indemnify its officers against civil liabilities or legal costs incurred in defending related proceedings. 

Australian Consumer Law

Penalties for breaches of the law

Breaches of the Australian Consumer Law include unconscionable conduct, making false or misleading representations, and supplying consumer goods or certain services that do not comply with safety standards or which are banned. The maximum pecuniary penalties for most breaches are consistent with penalties for anti-competitive conduct.

The maximum penalties for each breach of the Australian Consumer Law are:

Corporations

The greater of:

  • $50,000,000
  • if the Court can determine the "reasonably attributable" benefit obtained, 3 times that value, or
  • if the Court cannot determine the benefit, 30% of the corporation's adjusted turnover during the breach turnover period for the offence.

See Anti-competitive behaviour section above for explanation of ‘adjusted turnover’ and ‘breach turnover period’.

Individuals

  • $2,500,000.

Infringement notices

Where the ACCC has reasonable grounds to believe a person has breached certain provisions of the Australian Consumer Law it can issue an infringement notice for:

  • unconscionable conduct
  • false or misleading representations
  • pyramid selling
  • certain product safety and product information provisions
  • failure to respond to a substantiation notice
  • false or misleading information in response to a substantiation notice.

The penalty amount for each infringement notice varies, depending on the alleged contravention. In most cases, it is fixed at:

Corporations

  • $13,320 (60 penalty units) (or $133,200 - 600 penalty units -  for a listed corporation)

Individuals

  • $2,664 (12 penalty units)

for each alleged contravention.

For conduct on or from 1 January 2023, the penalty amounts will increase to:

  • $16,500 (60 penalty units) for a corporation (or $165,000 - 600 penalty units - for a listed corporation) and 
  • $3,300 (12 penalty units) for an individual

for each alleged contravention.

Gift card rules

Pecuniary penalties

The maximum pecuniary penalty for a breach of the rules for gift cards is:

Corporations

  • $30,000.

Individuals

  • $6,000.

Infringement notice penalties

Where the ACCC has reasonable grounds to believe a breach of the gift card provisions has occurred, we can issue an infringement notice.

Current infringement notice penalties for the gift card provisions are:

Corporations

  • $12,210 (55 penalty units).

Individuals

  • $2,442 (11 penalty units).

For conduct on or from 1 January 2023, these amounts will increase to $15,125 for a corporation and $3,025 for an individual.
 

Non-compliance with statutory notices and enforceable undertakings

Penalties can be imposed for non-compliance with a section 155 notice.

The Court can impose a fine of:

Companies

  • Up to $111,000 (500 penalty units).

Individuals

  • Up to $22,200 (100 penalty units) or 2 years imprisonment.

For non-compliance on or from 1 January 2023, these amounts will increase to $27,500 for individuals and $137,500 for corporations.

Under section 87B, where a person has breached an enforceable undertaking, the court can (on application by the ACCC) make an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person obtained directly or indirectly that can be reasonably attributed to the breach.

Codes of conduct

Horticulture code

Maximum pecuniary penalties for breaches of civil penalty provisions under the Horticulture Code of Conduct are:

  • $66,600 (300 penalty units). For conduct on or from 1 January 2023, this will increase to $82,500
  • infringement notices for corporations, $11,100 (50 penalty units)
  • infringement notices for individuals, $2,220 (10 penalty units).

For conduct on or from 1 January 2023, these will increase to $13,750 for corporations and $2,750 for individuals.

Dairy code

Maximum pecuniary penalties for breaches of civil penalty provisions under the Dairy Code of Conduct are:

  • a processor that is not a small business entity, $66,600 (300 penalty units)
  • a processor that is a small business entity, $22,200 (100 penalty units)
  • by a farmer, up to $22,200 (100 penalty units)

For conduct on or from 1 January 2023, these will increase to:

  • up to $82,500 for a processor that is not a small business entity
  • up to $27,500 for a processor that is a small business entity
  • up to $27,500 for a farmer.

Where the ACCC has reasonable grounds to believe a person has breached a civil penalty provision in the dairy code, it can issue an infringement notice. Infringement notice penalty amounts are:

  • infringement notices for corporations, $11,100 (50 penalty units)
  • infringement notices for individuals, $2,220 (10 penalty units).

For conduct on or from 1 January 2023, these will increase to $13,750 for corporations and $2,750 for individuals.

Franchising code

The Franchising Code of Conduct contains pecuniary penalties for breaches of certain provisions.

Financial penalties

The maximum pecuniary penalty amount varies depending on the alleged contravention:

  • in most cases, up to $133,200 (600 penalty units). For conduct on or from 1 January 2023, this will increase to $165,000.

There are greater pecuniary penalties for contraventions of certain civil penalty provisions of the franchising code:

  • disclosure of materially relevant facts (cl 17(1) and (2))
  • restricting the freedom of association of franchisees or prospective franchisees (cl 33), and
  • terms of agreement for new vehicle dealership agreements (cl 46A(1)-(3) and cl 46B).

For these provisions, for corporations the maximum pecuniary penalty per contravention is the greater of:

  • $10,000,000
  • if the Court can determine the "reasonably attributable" benefit obtained, 3 times that value, or
  • if the Court cannot determine the benefit, 10% of annual turnover in preceding 12 months.

Individuals

  • $500,000.

Where the ACCC has reasonable grounds to believe a person has breached a civil penalty provision in the franchising code, it can issue an infringement notice. Infringement notice penalty amounts are:

  • for corporations, $11,100 (50 penalty units)
  • for individuals, $2,220 (10 penalty units).

For conduct on or from 1 January 2023, these will increase to $13,750 for corporations and $2,750 for individuals.

Motor vehicle information scheme

Significant penalties apply to data providers for failing to comply with the obligations of the scheme.

A failure to comply with the main obligations of the scheme can attract maximum pecuniary penalties of:

  • $10 million for corporations, or

  • $500,000 for individuals.

The ACCC can also issue infringement notices up to 600 penalty units for corporations ($133,200)  and 120 penalty units ($26,640) for individuals, for breaches of certain obligations.

Payment surcharges

Where the ACCC has reasonable grounds to believe that a business has charged a payment surcharge which is excessive, we can issue an infringement notice:

  • 60 penalty units ($13,320) for a corporation (600 penalty units ($133,200) for a listed corporation)
  • 12 penalty units ($2,664) for an individual.

For conduct on or from 1 January 2023, these amounts will increase to:

  • $16,500 for a corporation
  • $165,000 for a listed corporation
  • $3,300 for an individual.

The ACCC can also take court action, in which we can seek pecuniary penalties of up to:

  • 6,471 penalty units ($1,436,562) for a corporation
  • 1,295 penalty units ($287,490) for an individual.

For conduct on or from 1 January 2023, these amounts will increase to:

  • $1,779,525 for a corporation
  • $356,125 for an individual.

See also

Legislation

Organisation for Economic Cooperation and Development report on Pecuniary Penalties for Competition Law Infringements in Australia

ACCC welcomes new penalties and expansion of the unfair contract terms laws