By Adam Rich
November 27, 2015
Businesses operating in Australia must comply with the Competition and Consumer Act 2010 (CCA). The CCA is enforced by the Australian Competition and Consumer Commission (ACCC). The ACCC has broad investigative and enforcement powers to ensure compliance. Businesses therefore need to be proactive in ensuring that they comply with the CCA.
Breaches of the CCA
The various practices and activities that attract the attention of the ACCC regarding possible breaches of the Australian Consumer Law (ACL) include misleading and deceptive conduct, unfair practices and anti-competitive behaviour (such as price fixing, abuse of market power and cartel conduct).
Sometimes businesses are caught out when their activities and practices, which may have been ‘the norm’ in their industry for some time, become the particular focus of the ACCC’s enforcement branch. Given the ACCC’s tendency to target specific industries from time to time, businesses are generally unable to rely on industry practice in their defence. Instead, businesses need to understand their compliance obligations under the CCA to ensure that they do not inadvertently fall foul of the CCA and to ensure that they have appropriate compliance training and review mechanisms in place in order to avoid costly breaches of the law.
The ACCC has extensive powers to investigate possible breaches of the CCA including raiding business premises and issuing broad requests for information through section 155 notices. In this regard the ACCC has a history of utilising its powers to the fullest extent. These investigative procedures can be incredibly disruptive to your business and absorb considerable resources and expense. The ACCC has no obligation to advise a business under investigation whether it will actually proceed with enforcement proceedings. In the event it does not prosecute a business upon completion of an investigation, businesses are unable to recover the considerable costs incurred in complying with the ACCC’s investigation and responding to any section 155 notices and interviews.
The best way to reduce the risk of attracting a possible ACCC investigation and/or prosecution is to implement a voluntary compliance program with the assistance of experienced trade practices lawyers. These programs are useful for any business, from small businesses to publically listed companies, whose business activities include any of the following activites:
A compliance program assists a business and its staff in identifying and reducing the risk of breaching the CCA and may assist in remedying any breaches so as to avoid a potential ACCC investigation.
The ACCC has published 4 compliance program templates, with Level 1 being for small business up to Level 4 applying to large corporate entities. The templates indicate how the ACCC approaches compliance programs and what practices your business ought to implement.
A well considered compliance program may result in you:
Wisewould Mahony has experience with preparing ACCC compliance programs and can prepare a program tailored to your business and risk profile. Our programs are designed to ensure you comply with all aspects of the CCA by providing practical and commercially sensible advice.
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