The Trade Practices Act 1974 catches conduct and transactions which affect competition and prices, where there is substantial loss or damage, a substantial lessening of competition, affects trade or commerce, where there are contracts, arrangements or understandings which affect the supply or acquisition of goods or services as well as misuse of market power to name but a few. Given the reach of the Trade Practices Act a wide variety of businesses need to be mindful of its application in their commercial environment to ensure best business practice. If a prosecution is lodged or proceedings commenced, you need to seek legal advice to ensure that your interests are properly protected.
LAC Lawyers is able to assist clients as outlined and as follows:
- Unconscionable Conduct
- Consumer Protection ~ misleading or deceptive conduct
- False or Misleading Representation
- Advertising and Selling
- Harassment and Coercion
- Product Safety and Product Information including recall
- Conditions and Warranties in Consumer Transactions
- Actions against Manufacturers and Importers of Goods
- Part VA ~ Products Liability
- Enforcement and Remedies
- Statutes of Limitation
As part of this landscape, agreements/contracts, disclosure, exclusion clauses, misuse of market power, product information, warnings and a raft of other matters including state legislation have to be considered to ensure that the client’s position is properly considered.
The Trade Practices Act (TPA) which is Commonwealth legislation and its NSW counterpart the Fair Trading Act (FTA) are used for the preservation and enhancement of competition amongst businesses and for the protection of the consumers from the businesses. Federal laws are enforced by the Australian Competition & Consumer Commission (ACCC) and the state laws are enforced by the NSW Office of Fair Trading (NSW OFT). These laws can also be used by businesses and consumers to obtain remedies against those who have infringed these laws.
These laws prohibit anti-competitive behaviours such as:
- price fixing – where competitors agree to charge the same or similar price hence there is no actual or real price difference between the competing products.
- market sharing – where the competitors agree to share the market on the basis of geography, revenue, customers and product.
- boycotts – where the competitors agree not to acquire or refuse to supply goods or service to a business or consumer (primary) and where the competitors agree to prevent another from acquiring or refusing to supply goods or service to a third party (secondary).
- misuse of market power – where a very large business uses its market power to the detriment of a smaller competitor.
- exclusive dealing – where a supplier of goods or service prohibits the purchaser from dealing with the suppliers competitor including refusing to supply or re-supply.
- resale price maintenance – where the suppliers set a price and prevent the business from selling at a different or discounted price.
These laws also protect consumers from behaviours such as:
- misleading or deceptive conduct
- misleading representations about the future supply of goods and services
- false and misleading representations
- false representations in relation to land
- misleading conduct in relation to employment
- not specifying the full cash price
- falsely offering prizes
- misleading the public as to the nature or characteristics of goods and services
- bait advertising
- referral selling
- accepting payment without intending to supply
- making false and misleading statements about work-at-home schemes
- harassments or coercion
- sending unsolicited debit or credit cards
- demanding payment for unsolicited goods or services
The laws also govern whether the products are manufactured in Australia or imported from overseas and enforcement can include:
- consumer product standards
- warning notices in respect of defective product
- voluntary product recall in respect of defective product
- compulsory product recall in respect of defective product
- emergency orders in respect of defective product
If you believe that you need more information regarding the above or you as a consumer or your business may be affected by anything mentioned above, please consult us.