At present the ACCC has no power to issue 'infringement
notices' – sometimes called 'on the spot
fines' – to wrongdoers and must instead apply to the
courts for pecuniary penalties to be imposed. Petrol retailers may
be the first to experience a new ACCC power to issue
"fines", in the form of infringement notices, if the
Fuelwatch legislation (the National Fuelwatch (Empowering
Consumers) Bill 2008 and the National Fuelwatch
(Empowering Consumers) (Consequential Amendments) Bill 2008 -
currently caught up in the Senate) is passed.
Under the proposed Fuelwatch legislation, which is modelled on a
regime currently in place in Western Australia, petrol retailers
must inform the ACCC by 2pm each day of the price at which they
will sell each type of fuel offered by them during the next day.
The petrol retailers must sell at the notified prices, commencing
at 6am the next day, for a 24 hour period. The ACCC will maintain a
website publishing daily fuel prices for consumers to refer to.
Under the proposed Fuelwatch legislation, if the ACCC has
reasonable grounds to suspect that a petrol retailer has failed
notify the ACCC of certain prescribed details, including the
retailer's name, ABN, service station location and kinds of
fuel to be offered for sale
notify the ACCC of the next day's price for petrol, or
sell fuel at the notified price
it may issue an infringement notice to the retailer. The
infringement notice will inform the retailer that if it pays a
penalty ($550 in the case of an individual and $2,750 in the case
of a body corporate) within 28 days, civil penalty proceedings in
the Federal Court will not be brought in relation to the matter.
Civil penalty proceedings carry potential penalties of up to
$22,000 in the case of an individual and $110,000 in the case of a
body corporate. (It should be noted that under the proposed
legislation it is open to the ACCC to move straight to civil
penalty proceedings. There is no requirement to first issue an
It is far from certain that a national Fuelwatch scheme, and
along with it, ACCC power to issue infringement notices, is going
to become a reality. The fate of the legislation appears to be in
the hands of key independent Senators, with whom the Government is
Yet, Fuelwatch aside, there are other signs that infringement
notices will eventually join the cache of enforcement tools
available to the ACCC.
For one thing, on 30 April 2008 the Productivity Commission
published its final report, Review of Australia's Consumer
Policy Framework, which included a recommendation that
infringement notices (along with civil pecuniary penalties, banning
orders and substantiation notices) be added to the enforcement
tools currently in the Trade Practices Act 1974
(TPA). This recommendation was made
notwithstanding the fact that the ACCC had not argued in favour of
the introduction of infringement notices in its lengthy submission
to the Productivity Commission inquiry (ACCC December 2005
Submission in response to the Ministerial Council on Consumer
Affairs' discussion paper Civil Penalties for Australia's
Consumer Protection Provisions). In its report, the
Productivity Commission noted that infringement notices are already
a feature of some State and Territory fair trading acts.
More recently, the ACCC itself has recommended that the TPA be
amended to introduce infringement notices (along with civil
pecuniary penalties) for breaches of a mandatory industry code made
under Part IVB, citing for support of the views the Productivity
Commission expressed in favour of infringement notices in the
Productivity Commission's final report. The ACCC made the
recommendation to include an ACCC power to give infringement
notices in the TPA as part of its review of the Horticulture Code
that appears in the grocery inquiry report published by the ACCC on
5 August 2008 (see our summary of the Grocery Report
here). Interestingly the ACCC's recommendation for
infringement notice powers is not confined to the Horticulture
Code, but seems to extend to other mandatory industry codes made
under Part IVB such as the Franchising Code of Conduct and the
Oilcode. The introduction of such laws will attract a significant
degree of attention, particularly in the franchising sector, where,
for example, a minor omission from a franchise disclosure document
might see a company fined for breaching the Franchising Code. We
will continue to provide updates with any developments in this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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