Main Body

1.4 The Competition and Consumer Act 2010 (Cth)

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:

Fair Trading Act 1989 (Qld), s. 4

(1) This Act applies to every person who does an act or makes an omission in Queensland that constitutes a contravention of this Act.

(2) Where acts or omissions occur that would constitute a contravention of this Act if they all occurred in Queensland and any of the acts or omissions occur in Queensland, the person who does the act or makes the omission shall be taken to have committed that contravention of this Act.

(3) Subsections (1) and (2):

(a) shall not be construed as limiting any application that this Act has apart from this section; and

(b) shall be construed subject to any provisions of this Act expressly to the contrary.

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)

Provision Title

Australian Consumer Law

Trade Practices Act 1974 (Cth)

Related bodies corporate 6 4A(5)
Consumers 3 4B
Acquisition, supply and re-supply 11 4C
Loss or damage to include injury 13 4K
Unconscionable conduct within the meaning of the unwritten law 20 51AA
Unconscionable conduct 21 51AB
Unconscionable conduct in business transactions 22 51AC(3)
Misleading representations with respect to future matters 4 51A
Misleading or deceptive conduct 18 52
False or misleading representations about goods or services 29 53
False or misleading representations about sale etc of land 30 53A
Misleading conduct relating to employment 31 53B
Single price to be specified in certain circumstances 48 53C
Offering rebates, gifts, prizes etc 32 54
Misleading conduct as to the nature etc of goods 33 55
Misleading conduct as to the nature etc of services 34 55A
Bait advertising 35 56
Referral selling 49 57
Wrongly accepting payment 36 58
Misleading representations about certain business activities 37 59
Harassment and coercion 50 60
Unsolicited cards etc 39 63A
Assertion of right to payment for unsolicited goods or services 40 64
Liability etc of recipient for unsolicited goods 41 65
Application to information providers 19, 38 65A
Pyramid schemes 44–46 65AAA–65AAE
Provisions relating to country of origin representations 254–258 65AB–65AN
Safety warning notices 129, 130 65B, 65S
Interim bans 109–113 65C
Permanent bans 114–117 65C
Supplying etc consumer goods covered by a ban 118 65C
Safety standards 104–108 65C, 65E
Information standards 134–137A 65D, 65E
Compulsory recall of consumer goods 122–127 65F–65H
Notification requirements for a voluntary recall of consumer goods 128 65R
Liability under a contract of insurance 133 65T
Convention on Contracts for the International Sale of Goods 68 66A
Conflict of laws 67 67
Guarantees not to be excluded etc by contract 64 68
Limitation of liability for failures to comply with guarantees 64A 68A
Guarantees as to title, undisturbed possession and undisclosed securities etc 51–53 69
Guarantee relating to the supply of goods by description 56 70
Guarantees as to acceptable quality and fitness for any disclosed purpose etc 54, 55 71
Guarantees relating to the supply of goods by sample or demonstration model 57 72
Linked credit contracts; Non-linked credit contracts 278–287 73
Continuing credit contract 14 73A
Definition of ‘loan contract’ 2 73B
Guarantee as to due care and skill; fitness for a particular purpose etc (services) 60, 61 74
Meaning of manufacturer 7 74A
Goods affixed to land or premises 8 74A(8)
Guarantee as to repairs and spare parts 58 74F
Guarantee as to express warranties 59 74G
Indemnification of suppliers by manufacturer 274 74H
This Part not to be excluded etc by contract 276 74K
Limitation in certain circumstances of liability of manufacturer to seller 276A 74L
Actions for damages against manufacturer of goods 271-273 74A-74M
Meaning of safety defect in relation to goods 9 75AC
Actions against manufacturers for goods with safety defects 138-142 75AD-75AG, 75AK
Time for commencing defective good actions 143 75AO
Liability joint and several 144 75AM
Survival of actions 145 75AH
No defective goods actions where workers’ compensation law etc applies 146 75AI
Unidentified manufacturer 147 75AJ
Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard 148 75AL
Representative actions by the regulator 149 75AQ
Offences relating to unfair practices 151-168 75AZB-75AZR
Pecuniary penalties 224 76E
Pecuniary penalties and offences 225 76F
Civil action for recovery of pecuniary penalties 228 77
Indemnification of officers 229 77A
Certain indemnities not authorised and certain documents void 230 77B
Preference must be given to compensation for victims 227 79B
Injunctions 232-235 80
Actions for damages 236 82
Defences 207-211 85
Non-punitive orders 246 86C
Adverse publicity orders 247 86D
Regulator may issue a public warning notice 223 86DA
Order disqualifying a person from managing corporations 248 86E
Compensation orders etc for injured persons 237-238 87
Power of a court to make orders 244 87(1)
Application for orders 242 87(1B), 87(1C)
Kinds of orders that may be made 243 87(2)
Orders for non-party consumers 239-241 87AAA
Undertakings 218 87B
Substantiation notices 219-222 87ZL-87ZO































































  1. Fair Trading Act 1989 (Qld) s. 20.
  2. Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No.2) 2010 (Cth) 37 [3.9].


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