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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.

Recent Posts

13 October 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Federal Court has ordered iSelect Limited to pay $8.5 million in penalties for making false or misleading representations about its electricity comparison service. iSelect’s commercial arrangements with partner electricity retailers restricted the number of electricity plans those retailers could upload onto the iSelect systems, and therefore the recommended plans were not necessarily the most suitable or competitive.

06 October 2020 - Knowledge

Federal Court spectacle: Oscar Wylee fined $3.5m for its misleading ‘buy a pair, give a pair’ charity claims

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

We explore the importance of ensuring your marketing claims are accurate and remain accurate, especially where the claims involve charitable causes.

28 September 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Charities Crisis Cabinet have come up with a better fix. Charities are registered and regulated by the ACNC, and fundraising is also regulated by Australian Consumer Law which prohibits misleading and deceptive conduct. There are also privacy laws, the Telecommunications Code and local by-laws about collections. In practice, no other authority is needed.

15 September 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

NULIS Nominees and MLC Nominees admitted to misleading or deceptive conduct, false or misleading representations, and breaches of the ASIC Act and Corporations Act. Australia’s Federal Court has imposed a penalty of AUD 57.5 million (USD 42 million) against National Australia Bank units NULIS Nominees and MLC Nominees for charging fees for services not provided to hundreds of thousands of superannuation customers.

18 August 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

An investigation by consumer group Choice has found dating app Tinder is charging some Australians far more than others for access to its premium service Tinder Plus. Choice alleges Tinder's terms of use are not sufficiently transparent, because Tinder users are not told their personal data may be used to set pricing.

12 August 2020 - Knowledge

‘Your explicit consent’ – what it means and why the ACCC is taking Google to court (again)

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

We discuss why the ACCC thinks Google misled consumers to agree to a 2016 privacy policy change that allows a more extensive collection of personal information, and what implications this might have for all businesses.

04 August 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

Australian media will be able to bargain with Google and Facebook to quickly secure fair payment for news content if a draft mandatory code released by the ACCC is adopted. The draft code is aimed at addressing acute bargaining power imbalances between Australian news businesses and Google and Facebook, including through a binding “final offer” arbitration process.

22 July 2020 - Knowledge

The meaning of “consumer” is changing

#Competition & Consumer Law

From next July, many larger transaction customers will become entitled to the benefit of the consumer guarantees under the Australian Consumer Law, as the statutory value cap jumps to $100,000. How can businesses prepare for the change?

21 July 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The Federal Court has found online retailer Kogan Australia Pty Ltd (Kogan) breached the Australian Consumer Law by making false and misleading representations about a tax time sales promotion, in proceedings brought by the ACCC.

06 July 2020 - Knowledge

Inside track: Competition & Consumer

#Competition & Consumer Law

The ACCC is closely monitoring the introduction of the new mandatory dairy code of conduct, including by checking processors’ compliance with the code, and is ready to take enforcement action where appropriate. Agreements must include a minimum milk price, among other conditions.