There are several enforcement options available to us when businesses fail to comply with the law.
What action can the Commission take?
The action we take will depend on the circumstances of the case, and the attitude and responsiveness of the parties involved.
No further action
If we believe there has been no breach, we will not take any further action. When this happens, we will generally send a letter to the complainant and, where relevant, to the investigated party advising that no further action is being taken.
Compliance advice letter
We may issue a compliance advice letter where we consider that the conduct may have breached the law, but in our opinion the matter is not a priority to take further at that time.
The letter will cover our concerns and the penalties that can be imposed for breaches of the law.
We may issue a warning letter as an alternative to litigation where we believe there has been a breach or likely breach of the law but the matter can be resolved without legal proceedings.
The purpose of the letter is to inform the recipient of our view that there has been a likely breach of the law, prompt change in their behaviour, and encourage future compliance.
The letter will be published on the case register.
We may apply to the court for an injunction to stop a person or business from committing an actual or attempted breach of the law, or from assisting or conspiring with another to breach the law. Injunctions may be temporary or permanent.
In some cases we will decide that the most appropriate way to achieve our compliance and enforcement objectives is to issue court proceedings against a business, individual(s), or both. We may take civil or criminal proceedings, depending on the law and all the circumstances of the conduct.
We may decide that the best option for resolving non-compliance is to negotiate a settlement with a party. Some benefits of negotiated settlements can be lower costs to parties, faster outcomes, greater flexibility of terms and outcomes, and greater control of the process.
If a business or individual is successfully prosecuted by the Commission, they may be fined by the court.
Fair Trading Act
The maximum penalty for breaches of the Fair Trading Act is $200,000 for an individual and $600,000 for a business (per offence).
We can also issue businesses with infringement notices of $1,000 for a range of breaches of the Fair Trading Act, such as:
not disclosing that they are a trader when selling online
failing to display a Consumer Information Notice on used motor vehicles where the car can be purchased online
not providing the required information to customers about laybys, uninvited direct sales, and extended warranties.
Credit Contracts and Consumer Finance Act
As with the Fair Trading Act, the maximum penalty for breaches of the Credit Contracts and Consumer Finance Act is $200,000 for an individual and $600,000 for a business (per offence).
We can also issue infringement notices for more minor breaches of some disclosure and repossession rules, requiring lenders to pay a fee of $1,000. If convicted of an infringement offence, the maximum penalty for an individual is $10,000 and $30,000 for a business.
For breaches of the Commerce Act, the maximum penalty is $500,000 for an individual. For a business, the maximum penalty is the greater of:
$10 million; or
three times the commercial gain, or, if this cannot be easily established, 10% of turnover.