ACCC issues guidelines on the use of infringement notices.

Monday , 21, March 2016 Leave a comment


The Australian Competition and Consumer Commission’s guidelines to issuing infringement notices under the Competition and Consumer Act 2010 (the Act).

News_ACCC

The new guide takes into account the ACCC’s experience in considering and issuing infringement notices since their introduction as part of Australian Consumer Law (ACL) amendments in April 2010.

The ACCC may issue an infringement notice where it has reasonable grounds to believe that a person has contravened certain consumer protection provisions including:

  • the unconscionable conduct provisions
  • the unfair practices provisions (save for certain sections e.g. section 18 of the ACL)
  • certain unsolicited consumer agreement and lay-by agreement provisions, and
  • certain product safety and product information provisions.

The ACCC may also issue an infringement notice to a person in relation to:

  • the failure to respond to a substantiation notice, or
  • the provision of false or misleading information to the ACCC in response to a substantiation notice.

Guidelines on the use of infringement notices

4. When is the ACCC more likely to issue an infringement notice?

The ACCC will take into account a broad range of sometimes competing factors in considering whether to seek to resolve a matter through the issuing of an infringement notice. Examples of circumstances where the ACCC is more likely to consider the use of an infringement notice include:

  • where it forms the view that the contravening conduct is relatively minor or less serious
  • where there have been isolated or non-systemic instances of non-compliance
  • where there have been lower levels of consumer harm or detriment
  • where the facts are not in dispute or where the ACCC considers the circumstances giving rise to the allegations are not controversial, and
  • where infringement notices form part of a broader industry or sectoral compliance and enforcement program following the ACCC raising concerns about industry wide conduct.

(a) The ACCC may issue multiple infringement notices

The ACCC may issue multiple infringement notices where it considers it appropriate to do so, taking into account all of the circumstances. In deciding whether to issue more than one infringement notice, the ACCC takes into account a range of considerations including:

  • whether the ACCC believes that there have been multiple contraventions of infringement notice provisions
  • where the contraventions have occurred in a number of states or territories
  • where the contraventions have involved the use of different types of media, such as online, television, radio, magazines and newspapers, outdoor advertising, and
  • whether there are circumstances which make it desirable to issue multiple notices to deter similar conduct by the specific business involved or the broader industry.

(b) Infringement notices and court-enforceable undertakings

In appropriate cases, as well as issuing an infringement notice, the ACCC may seek additional remedies, including by way of court-enforceable undertakings. This course is more likely where the ACCC considers that:

  • it is important to minimise the likelihood of future conduct through an undertaking or the implementation of a compliance program
  • other remedies such as corrective advertising or changed practices are required, or
  • action is required to deliver affected party or consumer redress such as by refunds.

Where the ACCC considers an infringement notice (or notices) to be appropriate as part of the resolution but insufficient to address one or more of these additional factors, the ACCC may seek a court-enforceable undertaking in addition to issuing an infringement notice.

Read More here.



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