Key considerations for investing in Australia – Australian Competition and Consumer Law

Operating as a manufacturer, importer, supplier or retailer of goods and services within Australia is somewhat simplified by the key piece of legislation being of Commonwealth jurisdiction and the unified civil procedure legislation across states and territories.

Relevant law

1. Competition & Consumer Act 2010 (Cth), incorporating the 'Australian Consumer Law'.
2. Civil Procedure Act 2008 (NSW) and associated Uniform Civil Procedure Rules.
3. Civil Dispute Resolution Act 2011.
4. Federal Court of Australia Act 1976 (Cth), Federal Circuit Court of Australia Act 1999 (Cth) and associated regulations.
5. NSW Civil & Administrative Tribunal Act 2013 (NSW) and associated regulations.
6. Customs Act 1901 (Cth), Customs Tariff (Anti-Dumping) Act 1975 (Cth) and associated regulations.

Key regulatory bodies

1. Australian Competition & Consumer Commission
2. Fair Trading NSW (and equivalent interstate bodies)
3. Anti-Dumping Commission

Key issues for new entrants to consider

1. An onshore importer or supplier of goods manufactured offshore can become directly liable for loss and damage suffered in Australia as the 'deemed manufacturer' of those goods. Knowledge of how this can occur assists in:
2. • Ensuring onshore entities are structured appropriately, to minimise risk; and,
   • Avoiding the onshore importer or supplier becoming deemed as the manufacturer for the purposes of liability.
3. The use of a corporate entity to do business in Australia does not afford officeholders and other individuals involved in the business protection from personal liability. Individuals can be personally liable for a breach of the Australian Consumer Law if they are 'involved in' a breach of the Australian Consumer Law by the company they are an officeholder, employee or representative of.
4. Subject to limited exceptions, there is a legal obligation to make a sincere and genuine attempt to resolve a dispute before commencing proceedings in Australia's courts of Federal jurisdiction.
5. The Australian Consumer Law sets out several binding consumer rights, called 'consumer guarantees', which automatically apply to the sale of goods and provision of services to consumers. These include rights to a repair, replacement or refund as well as compensation for damages and loss. Awareness of these consumer guarantees and the circumstances in which they apply is imperative to minimise risk of breaching a guarantee.
6. If goods or materials are imported into the Australian market at cost that is lower than what they can be manufactured for within Australia, a 'dumping duty' may be imposed by Customs. This duty is designed to create fair competition within Australia, without causing injury to Australian industry. This should be taken into consideration when determining the feasibility of doing business in Australia and forecasting revenue.

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.