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.