To understand the application of the comparatively recently introduced Competition and Consumer Act 2010 (Cth), it is important to be aware of its history and origins.

1.4.1 Background

The Competition and Consumer Act 2010 (Cth) replaced an earlier piece of legislation titled Trade Practices Act 1974 (Cth) (TPA). In doing so, it adopted a structure similar to the TPA and indeed, many of the provisions of the Competition and Consumer Act 2010 (Cth) are similar, or virtually identical to the corresponding provisions of the TPA. Consequently, it may be necessary to take account of case law decided under the TPA when interpreting and/or applying the provisions of the Competition and Consumer Act 2010 (Cth). However, care must be taken to distinguish those precedents that are based on aspects of the TPA that have been altered in the Competition and Consumer Act 2010 (Cth). This situation, typical of periods of law reform, means that lawyers practising in this field must be aware of the law as it previously stood to be able to assess the validity now, of judgments decided prior to the introduction of the Competition and Consumer Act 2010 (Cth).

The TPA regulated several aspects of the law of obligations including: implied terms, illegality and several issues going to consent. Furthermore, the TPA was of central importance in the context of false, misleading and deceptive conduct. In other words, every area discussed in this book was affected by the TPA.

Introduced in the form it had when replaced by the Competition and Consumer Act 2010 (Cth) in 1974, the TPA was first enacted as the Trade Practices Act 1965 (Cth). The Act of 1965 was modelled upon the US Sherman Act and was thus primarily focused on ‘horizontal’ anti-competitive conduct such as cartels. The threefold objectives of the TPA were stated in s. 2: “The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.”

While the TPA proved to be a rather effective statute in several regards, its complex structure may be seen as evidence of the Act having tried to achieve too many different aims. It would perhaps have been better to introduce separate instruments addressing separate areas. However, that was clearly not the approach preferred in 1974.

Being a federal instrument limited by the Constitution, the TPA was supplemented by state-based legalisation. At their core, the Fair Trading Acts of the different states, such as the Fair Trading Act 1989 (Qld) (FTA), largely mirrored the consumer protection provided in the TPA. However, some differences existed between the various Fair Trading Acts.

The Fair Trading Acts came about as a result of increasing recognition of the need for nationally uniform consumer protection legislation. The objective of the Fair Trading Act 1989 (Qld) was outlined in s. 3: “The principal objective of this Act is to provide for an equitable, competitive, informed and safe market place.”

Each state’s Fair Trading Act was limited in its application to that state. However, as is clear in what was s. 4 of Queensland’s Fair Trading Act, particularly through s. 4(2), the application was nevertheless rather broad:

The Competition and Consumer Act 2010 (Cth), which then replaced the TPA, introduced the Australian Consumer Law. This resulted in changes to the various state and territory Fair Trading Acts. For example, Queensland’s Fair Trading Act now states that the Australian Consumer Law, as a law of Queensland, applies to:

(a) persons carrying on business within this jurisdiction; or

(b) bodies corporate incorporated or registered under the law of this jurisdiction; or

(c) persons ordinarily resident in this jurisdiction; or

(d) persons otherwise connected with this jurisdiction.^[1]

Therefore, the introduction of the Australian Consumer Law has reformed the TPA (and various Fair Trading Acts’) prohibitions. For example, many of the Australian Consumer Law provisions apply to, and regulate the behaviour of, ‘a person’. In contrast, the TPA was commonly focused on regulating the behaviour of ‘a corporation’. This broadening of the scope of application is significant as it means that the ACL applies to both natural persons and to legal persons: “The provisions of the ACL apply to all persons – whether they are individual persons or bodies corporate – as it will be a law both of the Commonwealth and of each State and Territory.”^[2]

1.4.2 The aim of the Competition and Consumer Act 2010 (Cth)

Section 2 of the Competition and Consumer Act 2010 (Cth) states that “The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.” Thus, its aim is the same as the aim of its predecessor. However, one important aim of the Act, not mentioned here, is the harmonisation it provides within Australia.

1.4.3 The Australian Consumer Law

The most important part of the Competition and Consumer Act 2010 (Cth) is the so-called Australian Consumer Law (“ACL”), which is found in Schedule 2 of the Act. That Schedule contains 316 sections, many of which are virtually identical to provisions previously found in the TPA. However, it also contains important differences to the previous regulatory scheme.

The ACL will be the focal point for large parts of this book.

While, as noted, the Trade Practices Act itself has been repealed and replaced by Competition and Consumer Act, some case law stemming from the Trade Practices Act remain relevant. Consequently, it is useful to be aware of the corresponding or comparative provisions of the current ACL and the previous Trade Practices Act 1974 (Cth). The following table illustrates this:

Comparative provisions of the Australian Consumer Law and Trade Practices Act 1975 (Cth)