When the ACCC receives reports of an alleged breach of the Horticulture Code or the Competition and Consumer Act 2010, we assess the conduct against our Compliance and Enforcement Policy.
Where a report meets the factors set out in that policy, we have a range of options available to us, including issuing warnings, investigating the conduct, issuing infringement notices or commencing legal proceeding.
The ACCC uses a range of compliance and enforcement tools in order to encourage compliance with the Code. In deciding which tool (or combination of tools) to use, the ACCC takes into account a broad range of factors, which are outlined in the ACCC’s Compliance & enforcement policy.
Enforcement tools for resolving concerns include:
- administrative resolutions (e.g. the party in breach agrees to stop the conduct and compensate those affected)
- court enforceable undertakings under section 87B of the Act
- infringement notices
- initiating court action for certain breaches.
The ACCC can seek penalties for a number of breaches of the Code including:
- a party failing to deal with another party in good faith
- a trader failing to disclose necessary information. For example, a trader not publishing a terms of trade document or refusing to report to the grower as required
- trading in horticulture produce without entering a horticulture produce agreement
- a party failing to return a payment within 14 days after an agreement is terminated where the payment was received for the purposes of trade that would have occurred under an agreement that was terminated within a cooling off period
- a trader failing to advise the grower that they reject produce within 24 hours after rejecting the produce
- an agent selling a grower’s horticulture produce other than on an arm’s length basis without the grower’s consent
- refusing to attend mediation
- failing to keep records as required by the Code.
In addition to penalties, a court can make other orders including:
- injunctions to stop the conduct or to require some action to be taken
- compensation and damages
- disqualification orders to prevent directors from managing corporations for a period of time.
See: Fines & penalties
The ACCC can ask parties covered by the code for information or documents they are required to keep, generate or publish under the code. The party has 21 days to provide these documents.
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