MLL217 Study Guide - Final Guide: Hih Insurance, Apparent Authority, Coles Supermarkets
2 Jun 2018
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Remedies available for a contravention of the ACL
Remedies available to the ACL regulator
Overview of main remedies available to ACCC
◼ Remedies available for a contravention of Section 18 and Part 3-1:
◼ Injunctions: s 232 of the ACL
◼ Non-punitive orders: affirmative disclosure and corrective advertising:
s 246 of the ACL
◼ Additional remedies available for a contravention of Part 3-1:
◼ Civil pecuniary penalties: s 224 of the ACL
◼ Infringement notices: s 134A of the CCA
◼ Adverse publicity orders: s 247
◼ Criminal penalties: Part 4-1
Criminal Penalties
▪ Available for a contravention of Part 4-1
▪ Part 3-1 replicated in Part 4-1 – s 18 is not
▪ Penalties can be imposed on:
▪ The person contravening the Act (normally the corporation), or
▪ Any person involved in the contravention (s 2 of the ACL):
▪ Aiding, abetting, counselling or procuring a contravention
▪ Inducing, or attempting to induce a contravention
▪ Being in any way knowingly concerned in or a party to a
contravention
▪ Conspiring with others to commit a contravention
▪ Penalty maximums:
▪ $1.1m for corporation, $220,000 for individual
▪ Burden of proof of establishing a false or misleading representation is
on the prosecution. Must be proved beyond a reasonable doubt
▪ ACCC v Ascot Four ($380,000) – contravention of s 151(1)(i) –
refer to Topic 8.
▪ Must be proved on reasonable doubt
The Regulator(s)
▪ Relevant agencies
▪ Compliance with the ACL
▪ Investigate complaints
find more resources at oneclass.com
find more resources at oneclass.com
▪ Cannot make findings of a contravention (except infringement notices)
▪ Only courts have power to make remedial orders
▪ Enforcement priorities
▪ Relevant conduct and potential impact
▪ Public interest, significant consumer detriment, vulnerable consumer
groups, pattern of non-compliance or risk of future misconduct,
involves a significant new or emerging market issue, conduct that is
industry-wide, market integrity, educate or deterrent effect, a blatant
disregard for the law
▪ Enforcement strategies
▪ Administrative resolution
▪ Infringement notices
▪ Enforceable undertakings- s 218
▪ Litigation
Evolution of factors determining quantum
Hartnell v Sharp Corporation (1981)
▪ The statement that approval had been obtained from the Standards Association of
Australia was central to the respondents marketing of its ovens.
▪ A penalty of $10,000 was imposed in respect of each of the 10 charges.
▪ This substantial penalty was justified taking into account the six factors
▪ It was a statement that was completely untrue and that had been made deliberately
and disseminated to a wide group of people.
▪ The action taken by the respondent to correct the misleading impression created by
its advertisement was insufficient as the corrective statements were themselves
misleading.
▪ The benefits which could be obtained by a corporation from a contravention of this
kind were potentially very significant, and therefore the amount of the penalty needed
to be substantial in order to deprive the respondent and others of an incentive to
engage in conduct of this type.
▪ The court recognised that the following six factors will be important in determining the
amount of any penalty:
▪ The importance of the untrue statements
▪ The corporations state of mind: was it wilfulness or carelessness?
▪ The degree the statement departs from the truth
▪ The degree the statement has been disseminated
▪ The efforts made to correct the situation (and co-operation with ACCC)
▪ The need for general deterrence
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find more resources at oneclass.com
ACCC v Nationwide News
▪ N/W N attempted to say readers could get a free mobile, which was not free (had to
sign up to a plan)
▪ Was prosecuted on 6 of 24 charges, media outlets only noted the 6 charges, and not
the failed 18
▪ The court set the penalty at $120,000 after taking into account, inter alia:
▪ The profits to be earned by the respondent from the sale of extra newspapers
were potentially very large;
▪ The financial detriment to consumers (the buyers of the respondents
newspaper) was potentially significant when considered in aggregate;
▪ The contravention was committed very publicly, and the public had to see that
the law was being enforced; and
▪ The respondent had not offered any apology or expression of contrition
ACCC v Nissan
▪ The Court also recognised a number of relevant factors:
▪ Compliance and staff training programs in place before contravention
▪ Compliance and staff training programs in place after contravention
▪ Similar conduct in the past
▪ The size of the corporations activity in the relevant market
▪ Undertakings to provide compensation
Specific v General Deterrence
ACCC v South East Melbourne Cleaning Pty Ltd (2015)
▪ Cleaning service franchise
▪ Representations that the franchisees would earn specified monthly amounts
▪ Found to be false
▪ Factors the court used to determine the quantum
▪ Disqualified from managing corporations for two years
▪ Agreed not to be involved in management or marketing or a franchise
business for two years
▪ Agreed to pay compensation to suffering parties
▪ Has cooperated with the ACCC and did not contest the proceedings
▪ Has not previously been found to have contravened ACL
▪ Sanctioned with a penalty higher to deter the offender and others, and falls within the
permissible range ($30,000)
ACCC v Chubb Security
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find more resources at oneclass.com
Document Summary
Remedies available for a contravention of the acl. Remedies available for a contravention of section 18 and part 3-1: Non-punitive orders: affirmative disclosure and corrective advertising: s 246 of the acl. Additional remedies available for a contravention of part 3-1: Civil pecuniary penalties: s 224 of the acl. Inducing, or attempting to induce a contravention: being in any way knowingly concerned in or a party to a contravention, conspiring with others to commit a contravention, penalty maximums: . 1m for corporation, ,000 for individual: burden of proof of establishing a false or misleading representation is on the prosecution. Must be proved beyond a reasonable doubt: accc v ascot four (,000) contravention of s 151(1)(i) refer to topic 8, must be proved on reasonable doubt. The regulator(s: relevant agencies, compliance with the acl. Infringement notices: enforceable undertakings- s 218, litigation. Hartnell v sharp corporation (1981: the statement that approval had been obtained from the standards association of.
