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4.5 False or misleading representations under ACL s. 29 (TPA s. 53)

Section 29 of the Australian Consumer Law (s. 53 of the Trade Practices Act) deals with false or misleading representations and states that:

Australian Consumer Law, s. 29

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

(b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or

(c) make a false or misleading representation that goods are new; or

(d) make a false or misleading representation that a particular person has agreed to acquire goods or services; or

(e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or

(f) make a false or misleading representation concerning:

(i) a testimonial by any person; or

(ii) a representation that purports to be such a testimonial; relating to goods or services; or

(g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

(h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation; or

(i) make a false or misleading representation with respect to the price of goods or services; or

(j) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; or

(k) make a false or misleading representation concerning the place of origin of goods; or

(l) make a false or misleading representation concerning the need for any goods or services; or

(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); or

(n) make a false or misleading representation concerning a requirement to pay for a contractual right that:

(i) is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); and

(ii) a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation of a kind referred to in subsection (1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.

(3) To avoid doubt, subsection (2) does not:

(a) have the effect that, merely because such evidence to the contrary is adduced, the representation is not misleading; or

(b) have the effect of placing on any person an onus of proving that the representation is not misleading.

While s. 18 of the ACL (TPA s. 52) is very general, s. 29 of the ACL (TPA s. 53), dealing with false or misleading representations, is comparatively specific. It outlines specific types of behaviour which, if breached by a person engaged in trade or commerce in the supply of goods or services, can amount to an offence under Chapter 4 of the ACL (TPA Pt VC). Further, a breach of ACL s. 29 can result in an injunction under ACL s. 232 (TPA s. 80), damages under ACL s. 236 (TPA s. 82), as well as other orders under ACL s. 237 (TPA s. 87). These remedies are discussed in detail below.

 

Importantly, ss. 29(1)(e) and (f), concerning testimonials, and 29(1)(n), concerning requirements to pay for certain contractual rights, are new provisions.  They add to the list of representations that were expressly prohibited in the former TPA s. 53.  Further, s. 29(2) provides that, “in… a proceeding concerning a representation of a kind referred to in ss. 29(1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary.”

Another point to note is that the terms of the ACL imply a wider application by substituting “person” for “corporation,” which was the term used in the TPA provisions.


  1. [1998] 1048 FCA.
  2. (1979) ATPR 40-129.
  3. (2011) 192 FCR 34.
  4. Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960.
  5. Undertaking dated 27th September 2011; see http://www.accc.gov.au/content/index.phtml/itemId/1018610.
  6. [2004] FCA 1047, at 17.
  7. (1996) 66 FCR 451.
  8. (1994) ATPR 46-136.
  9. (2002) ATPR 41-863.
  10. (2003) ATPR 46-241.
  11. [2003] FCA 897.
  12. [2002] FCA 1552.
  13. [2003] FCA 0850.
  14. (1981) ATPR 40-223.
  15. Peter James Dawson v Motor Tyre Service Pty Ltd (1981) ATPR 40-223, at 43-024.
  16. (1989) ATPR 40-963.
  17. Miller v Fiona’s Clothes Horse of Centrepoint Pty Ltd (1989) ATPR 40-963, at 50-520.

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