Australia: Competition and Consumer Law - What's News - 14 September 2016

In the media – National

Union deals make construction costs double US: report
Sweetheart deals, union labour "cartels" and archaic work practices have made Australian construction costs almost double those in the US for some projects, according to a Menzies Research Centre report recommending ­reforms to shave infrastructure costs by 10 per cent (12 September 2016). More...

Bosisto's pay $10,800 penalty for allegedly false or misleading tea tree oil claims
The ACCC issued the infringement notice because it had reasonable grounds to believe that Bosisto's had made a false or misleading representation in breach of the Australian Consumer Law (ACL) by labelling its tea tree oil as 100% pure, when that was not the case (08 September 2016). More...

ACCC releases issues paper for communications sector market study
The ACCC has released an issues paper to begin seeking feedback from industry and consumers as part of its market study of the communications sector. The paper calls for comment on a range of matters that may affect competition, the efficient operation of markets, and investment incentives over the next five years and beyond (05 September 2016). More...

ACCC seeks feedback on a framework for guidance on competition law reforms
The Australian Government released an exposure draft of the Competition and Consumer Amendment (Competition Policy Review) Bill today to implement reforms identified by the Harper Competition Policy Review (05 September 2016). More...

Competition 'effects test' legislation released
Public consultation has begun in earnest on laws aimed at preventing the misuse of market power. Changes also include: broadening the definition of competition to include potential imports of goods and services; confining the cartel conduct provisions to conduct affecting competition in Australia; prohibitions on price signalling, exclusionary provisions and concerted practices (05 September 2016). More...

Travel sites to amend price clauses to allow cheaper hotel rates
The competition watchdog has reached a deal with travel sites Expedia and to allow hotels to provide cheaper rates to customers booking on the phone or through walk-ins, but not on the hotels' actual website (02 September 2016). More...

Credit card surcharges overhaul leaves companies facing fines if found overcharging consumers
Companies that charge consumers excessive credit card fees will be hit with big fines under a ban that takes effect on Thursday. Australian Competition and Consumer Commission (ACCC) chairman Rod Sims said companies "won't be able to charge whatever they like" depending on how you pay for a bill (01 September 2016). More...

ACCC takes action against Volkswagen over diesel emission claims
The ACCC has instituted proceedings in the Federal Court of Australia against German company Volkswagen Aktiengesellschaft (VWAG) and its Australian subsidiary, Volkswagen Group Australia Pty Ltd (VGA), alleging they engaged in misleading or deceptive conduct, made false or misleading representations and engaged in conduct liable to mislead the public in relation to diesel vehicle emission claims (01 September 2016). More...

Westpac refunds $20m to customers over foreign transaction fees
Westpac, Australia's second largest bank by market capitalisation, has refunded about $20 million in credit card foreign transaction fees to approximately 820,000 customers. ASIC deputy chairman Peter Kell warned many Australians were not aware they were being charged (08 September 2016). More...

In practice and courts, published reports

ACCC updated guidance material on information gathering powers
The Australian Competition and Consumer Commission has released updated guidelines on its use of mandatory information gathering powers under the Competition and Consumer Act 2010 (the CCA). This includes a basic guide for individuals and small businesses (07 September 2016). More...

ACCC: New law on unfair contract terms to provide protections for farmers and agriculture businesses
From 12 November 2016 a new law comes into place that will protect farmers and small businesses from unfair contract terms. If a farmer is concerned about the terms of a contract they have received, they should visit the ACCC website or contact the ACCC's Agriculture Unit for information about the law. More...

How to Assess the Competitiveness and Efficiency of the Superannuation System: Draft report
The sheer size of the superannuation system, combined with its compulsory and broad nature, makes the efficiency of the system paramount. This draft report was released on 2 August 2016. Submissions are due by 09 September 2016. More...

ASIC's Corporate Plan 2016–17 to 2019–20 and Focus for 2016–17 to 2019–20 and Focus for 2016–17
ASIC has published its Corporate Plan for 2016–17. The Corporate Plan outlines ASIC's vision: To allow markets to fund the economy, and in turn, economic growth (31 August 2016). More...


Griffiths v LMM Holdings Pty Ltd as the Trustee for the Brisbane BMW Trust [2016] FCCA 2322
CONSUMER LAW – Misleading and deceptive conduct – whether representations as to the delivery of motor vehicle be made – whether representations were true – representation as to a future matter – whether reasonable grounds for making representation.
CONTRACT – Whether pre-contractual representation a term of the contract – where pre-contractual representation not a term promissory in nature and not of the contract – where no reliance upon pre-contractual representation – where no estoppel arises by reason of the representation. Australian Consumer Law, ss.23(1), 24.

Australian Competition and Consumer Commission v Ozsale Pty Limited [2016] FCA 1049
CONSUMER LAW – supplying and offering to supply children's garments that did not meet the relevant fire hazard safety standards – admitted contraventions – parties agreed as to facts, liability and penalties – pecuniary penalties – declarations – injunctions – compliance program - Australian Consumer Law ss 106, 224.

Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co [2016] NSWCATAP 196
CONSUMER CLAIM – Whether decision of Tribunal addressed the respondent's alleged breaches of the Australian Consumer Law – Whether the Tribunal took into account a "once in a lifetime" experience – Whether the Tribunal's decision reflected the financial loss suffered by the appellant and his wife for three wasted days - Whether the Tribunal took into account the unconscionable conduct of the respondent - Whether the Tribunal took into account the misleading and deceptive conduct of the respondent.
AUSTRALIAN CONSUMER LAW (NSW) – meaning and effect of the requirement of s 79U that the orders be fair and equitable to all parties to the claim – assessment of damages pursuant to s 236 of the Australian Consumer Law (NSW).


Competition and Consumer Amendment (Competition Policy Review) Bill 2016 [Exposure Draft]
This draft contains significant amendments to the Competition and Consumer Act 2010 (the CCA). See the Exposure Draft (06 September 2016).

Competition and Consumer Amendment (Country of Origin) Bill 2016
Registered 05 September 2016; HR 01 September 2016 - The Bill amends the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010) to alter the definition of substantial transformation as it applies to the safe harbour provisions of the ACL. This Bill complements the Country of Origin Food Labelling Information Standard 2016 (Information Standard) (made under the ACL) which came into effect on 1 July 2016.

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Ian Robertson
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