"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 and consumer law in Australia is governed by comprehensive legislative provisions which are principally contained in the Competition and Consumer Act 2010 (which was formerly called the Trade Practices Act 1974). The Australian Competition and Consumer Commission (ACCC), which is an independent statutory authority financed by the Australian Government, is the principal regulator of competition and consumer law in Australia.
The consumer protection provisions in the Australian Consumer Law (which is a schedule to the Competition and Consumer Act 2010 (CCA)) have been adopted as a model for the fair trading regimes in Australia’s states and territories (in legislation usually called Fair Trading Acts).
Competition and consumer law has widespread application to commercial transactions and disputes and must be considered whenever commercial transactions are being planned and implemented. Holding Redlich has extensive experience in all aspects of competition and consumer law including:
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 for our advertising and marketing clients and undertake compliance programs.
The Australian Consumer Law also prohibits unfair contract terms in standard form consumer contracts entered into by corporations and to 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 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 authorization by the ACCC of conduct which may be anti-competitive.
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 our clients in a number of industries, including manufacturing, retailing, and commercial property on steps to ensure compliance with these legislative provisions, and we also act for our clients in disputes and litigation in which unconscionable conduct is alleged.
Franchising in Australia is regulated by an industry code, 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.
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.
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.
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.
Commonwealth Legal Services Multi-Use List
Holding Redlich has been appointed to the Commonwealth Legal Services Multi-Use List in the categories of Government and Administrative Law, Corporate and Commercial Law and Dispute Resolution and Litigation. We regularly act for and advise Commonwealth Government departments and agencies.