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Competition & Consumer Law

In competition and consumer law, as with all areas of our practice, we seek to devise strategic and practical solutions for our clients in the most cost-effective manner possible.

Competition & Consumer Law

Competition and consumer law has widespread application to commercial transactions and disputes and must be considered whenever commercial transactions are being planned and implemented.

Expertise

Consumer protection, misleading and deceptive conduct, and unfair contracts

The provisions of the Australian Consumer Law are the cornerstone of Australian advertising and marketing law and also have extensive application to general commercial dealings and transactions. There are similar provisions in the State Fair Trading Acts.

Holding Redlich has a national practice advising advertising agencies and advertisers on the legal issues related to proposed advertisements and advertising campaigns. We advise on these legislative provisions (and other relevant issues such as copyright, trade promotions, and talent agreements) on a daily basis. We also provide training to our clients on advertising and marketing risks, including social media risks.

The Australian Consumer Law also prohibits unfair contract terms in standard form consumer contracts entered into by corporations and contracts which are financial products or relate to the supply of financial services. Under the unfair contracts provisions any term of a standard form consumer contract which is deemed to be “unfair” may be found to be void and treated as if it never existed. 

Competition law and restrictive trade practices

Part IV of the Competition & Consumer Act (CCA) contains comprehensive provisions concerning horizontal and vertical restraints, mergers, market power, and resale price maintenance.

In addition, the ACCC operates a system of informal merger clearance for mergers and acquisitions which may substantially lessen competition.

Holding Redlich is experienced in advising on the application of these legislative provisions to proposed mergers and acquisitions, joint ventures and contractual arrangements. We are also experienced in making applications to the ACCC for informal clearance of mergers, as well as for authorisation by the ACCC of conduct which may be anti-competitive.

Unconscionable conduct

The Australian Consumer Law expands the common law of unconscionable conduct by introducing, in effect, a general duty to trade fairly in relation to consumers, and also in respect of certain business transactions.

These provisions have extensive application to consumer transactions as well as to some business to business transactions including many retail leases. Holding Redlich advises clients in a number of industries, including manufacturing, retailing, and commercial property on steps to ensure compliance with these legislative provisions. We also act for clients in disputes and litigation in which unconscionable conduct is alleged. 

Commercial disputes

Aspects of competition and consumer law, particularly in respect of restrictive trade practices and misleading and deceptive conduct, frequently arise in commercial disputes. Holding Redlich’s litigators regularly conduct cases in the Australian courts at all levels involving competition and consumer law and principles.

In competition and consumer law, as with all areas of our practice, we seek to devise strategic and practical solutions for our clients in the most cost-effective manner possible. In doing so we utilise our extensive knowledge of the industries in which our clients operate and our specialist understanding of the applicable law.

Franchising

Franchising in Australia is regulated by the Franchising Code of Conduct, made under Part IVB of the CCA. Other provisions of the CCA also have application to franchising arrangements. Holding Redlich is experienced in acting for both franchisors and franchisees in respect of the Code and related issues.

Our experience extends to drafting, negotiating and advising upon franchise agreements in a number of sectors including in respect of motor vehicle dealerships, convenience food outlets, and retailers. We also regularly represent franchisors and franchisees in disputes and litigation. Several Holding Redlich partners are accredited mediators with the Office of the Mediation Adviser which is the mediation scheme created under the Franchising Code of Conduct

Access to essential facilities

Part IIIA of the CCA concerns the granting of access to essential facilities which are also ‘monopoly’ facilities such as pipelines, railways and ports. Part XIC of the CCA concerns access to telecommunications services.

Holding Redlich is frequently asked to advise our clients in the pipeline, mining, and stevedoring industries on the application of these provisions to their businesses and commercial activities.

Informal clearances and enforceable undertakings

The ACCC has the power to grant informal clearances of mergers which may otherwise contravene the merger provisions of the CCA. Often a clearance will only be provided by the ACCC after enforceable undertakings are provided by one or more parties to the proposed transaction.

Holding Redlich is experienced in seeking informal merger clearances from the ACCC and in drafting and advising upon enforceable undertakings, especially in respect of transactions in the media, communications, manufacturing and commercial property industries.

Restraints of trade

Restraints of trade in Australia are predominately regulated by the common law which, in essence, will not allow unreasonable restraints of trade to be enforced. Holding Redlich is experienced in drafting and advising upon restraints of trade in employment arrangements and in commercial transactions, and in enforcing and challenging restraints of trade in the Australian courts at all levels.

Compliance programs

The penalties for infringing the provisions of the CCA and the Australian Consumer Law can be very substantial and most Australian businesses ensure that they comply with the law. Many businesses implement trade practices compliance programs for their staff and Holding Redlich is familiar with the drafting and implementing of such programs in a number of industries, including in retailing, media, and commercial property.

ACCC Investigations

The ACCC has extensive powers to conduct investigations and enquiries and Holding Redlich is experienced in advising and assisting clients which may be subject to such activity by the ACCC. Our experience extends to drafting detailed submissions and representing clients in meetings with the ACCC.

Experience

Regulatory compliance, including corporations law, copyright, privacy and competition law.

For an expert guide on Australian merger analysis, read our chapter published in the Mondaq Comparative Guide to Merger Control here.

You can also find out more about Australia's competition litigation laws, current issues and upcoming legal changes by reading our Q&A guide here, which we jointly published with The Legal 500.

Recent Posts

22 November 2022 - Knowledge

ACCC mows down turf breeder for concerted practice concerns

#Competition & Consumer Law

In the first enforcement action of its kind in three years, the ACCC has secured a court enforceable undertaking from a turf breeder after concerns it may have engaged in a concerted practice.

22 November 2022 - Knowledge

ACCC calls for wide ranging new regulation for digital platforms

#Corporate & Commercial Law, #Competition & Consumer Law

The ACCC uses its regulatory power to call for new competition and consumer protection laws for digital platforms after extensive consumer harms have been uncovered.

07 September 2022 - Knowledge

Proposed penalties raise the bar on competition and consumer law breaches

#Competition & Consumer Law, #White Collar Crime & Regulatory Investigations

The federal government intends to deter competition and consumer law breaches with the release of a Draft Bill that would see companies and individuals face significantly higher penalties.

15 August 2022 - Knowledge

Not easy being green for Logan waste collection businesses, QCA finds

#Competition & Consumer Law, #Government, #Local Government

For the first time in five years, the Queensland Competition Authority (QCA) has handed down an investigation report finding a breach of the competitive neutrality principles by Logan City Council in the pricing of its green waste collection services.

06 July 2022 - Knowledge

Money transfer cartel sent cash and received jail time

#Competition & Consumer Law, #White Collar Crime & Regulatory Investigations

In an Australian competition law first, four individuals have received prison sentences for criminal cartel conduct after fixing foreign exchange rates and fees despite being employed by competing money transfer businesses.

21 June 2022 - Knowledge

From the guest room to the dog house, ACCC brings action against Airbnb

#Competition & Consumer Law

The ACCC has instituted proceedings against Airbnb for breaking house rules by misleading consumers into believing the prices for accommodation displayed on its booking platform were in Australian dollars, when in fact those prices were in US dollars.

07 June 2022 - Knowledge

ACCC takes swipe at Mastercard for alleged misuse of market power

#Competition & Consumer Law

After signalling a focus on competition issues in the financial services sector, the ACCC has pinned down Mastercard in proceedings alleging it has misused its market power with the purpose of substantially lessening competition in the supply of debit card acceptance services.

01 June 2022 - Knowledge

ACCC identifies unfair contract terms in chicken industry

#Competition & Consumer Law, #Agribusiness

An investigation by the Australian Competition & Consumer Commission has resulted in some of Australia's largest chicken meat processors addressing unfair contract terms with chicken growers.

30 March 2022 - Knowledge

Court finds nothing sweet about Peters icing out their competition

#Competition & Consumer Law

In proceedings brought by the ACCC, the Federal Court has served Peters Ice Cream a just dessert for engaging in anti-competitive conduct in the distribution of ice creams sold in petrol stations and convenience stores.

28 March 2022 - Knowledge

Third party access declaration may be terminal without logic and reason

#Administrative Law, #Competition & Consumer Law

A recent Queensland Supreme Court judicial review decision provides interesting insight into the court’s interpretation and ultimate operation of the new access criteria that apply to the third party access regimes under Queensland and Commonwealth competition legislation.

21 March 2022 - Knowledge

Sector specific regulation for digital platforms: The ACCC develops the case for new powers

#Technology, Media & Telecommunications, #Competition & Consumer Law

Mid-way through its 5 year inquiry into digital platform services, the Australian Competition & Consumer Commission has released a discussion paper seeking feedback on whether an enhanced regulatory framework is required to address the practices of digital platforms.

07 March 2022 - Knowledge

ACCC announces compliance and enforcement priorities for 2022-23

#Competition & Consumer Law

The ACCC’s 2022-23 compliance and enforcement priorities provide valuable insights to both public and private sector entities on the regulator’s focus areas from both a competition and consumer law perspective. They are particularly useful for those keen to stay off the ACCC’s enforcement radar.