TB & REBELS;
I`m 3/4 of my way through a law degree and happy to assist where I can;
MISLEADING OR DECEPTIVE CONDUCT
The ACL prohibits misleading and deceptive conduct in trade or commerce.
Section 18 of the ACL prohibits a person, in trade or commerce, from engaging in misleading
or deceptive conduct. This prohibition is not limited to the supply of goods or services and
creates a broad, economy-wide norm of conduct.
The ACL retains the general prohibition on misleading and deceptive conduct that existed in
section 52 of the TPA and all State and Territory fair trading Acts (FTAs). The drafting of
section 18 is in the same form as section 52 of the TPA, except for the reference to ‘persons’
rather than ‘corporations’.
The effect of section 18 remains unchanged and, accordingly, the existing jurisprudence on
section 52 and its State and Territory equivalents remains applicable under the ACL.
A contravention of the prohibition on misleading and deceptive conduct is subject to
remedies including injunctions, damages and compensatory orders, as set out in Chapter 5 of
the ACL.
Civil penalties and criminal sanctions do not apply to section 18, because of its very broad
scope. Section 18 of the ACL creates a norm of business conduct, and allows persons to seek
remedies for harm caused by breaches of that norm, rather than giving rise to a
contravention that attracts punitive sanctions. Other prohibitions against specific forms of
false or misleading conduct may also apply to instances of misleading conduct and have
specific penalties and criminal sanctions.
UNCONSCIONABLE CONDUCT
The ACL prohibits unconscionable conduct in trade or commerce. The ACL also
specifically prohibits unconscionable conduct in consumer and business
transactions.
Section 20 of the ACL prohibits unconscionable conduct within the meaning of the unwritten
law, from time to time. This means that actions relating to unconscionable conduct, which is
a concept that has developed in the common law and the principles of equity, may be
commenced under the ACL and the remedies provided by the ACL may be applied to a
breach of the provision.
Section 21 of the ACL prohibits unconscionable conduct in connection with the supply of
goods or services to a person. Section 22 of the ACL prohibits unconscionable conduct in
connection with the supply of goods or services, or the acquisition of goods or services, in
business transactions.
The concept of unconscionable conduct in sections 21 and 22 of the ACL is not bound by the
common law and equitable principles, and while courts may consider any relevant matters,
the ACL specifies a guiding list of factors.
The content of Part IVA of the TPA is to remain, in substance, the same in the ACL.
Enforcement and remedies
Remedies applicable to the unconscionable conduct provisions of the ACL include
injunctions, damages, compensatory orders and other remedies, such as non-punitive orders
and adverse publicity orders. There are also civil pecuniary penalties with maximum
penalties of $1.1 million for a body corporate and $220,000 for a person other than a body
corporate, as well as disqualification orders, redress for non-parties and public warning
notices.
PLEASE NOTE THAT THE COMMON LAW OFFERS EVEN MORE PROTECTION !!! thus a lawyer would apply both the common law and statutory provisions to circumnavigate which ever avenue works out best given the scenario.
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