The Australian Competition and Consumer Commission (ACCC) has extensive powers to investigate, regulate and prosecute suspected breaches of the Australian Consumer Law (ACL) (which is Sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA)). These powers are found in the body of the CCA and in Ch 5 of the ACL.

Each of the following departments and offices of the states and territories also have the same or similar powers to investigate, regulate and prosecute suspected breaches of the ACL:

• in New South Wales, the NSW Fair Trading;

• in Victoria, Consumer Affairs Victoria;

• in Queensland, the Office of Fair Trading (Qld);

• in South Australia, Consumer and Business Services (SA);

• in Western Australia, Consumer Protection (WA);

• in Tasmania, Consumer Affairs and Fair Trading (Tas);

• in the Australian Capital Territory, the Access Canberra (ACT);

• in the Northern Territory, Consumer Affairs (NT).

For further details of the relationship between the ACCC and the state and territory regulators see The relationship between the Australian Competition and Consumer Commission and state and territory consumer protection agencies.

The ACCC’s investigative powers fall into two categories:

• the powers to obtain documents, information and evidence and to enter premises and seize documents under s 155 and Pt XID respectively of the CCA; and

• the power to issue substantiation Notices, requiring persons who have made representations or claims in trade or commerce regarding the supply of goods or services, or the sale or grant of interests in land, or the offer of employment, to provide information or documents to substantiate the claims (found in s 219 of the ACL).

See What investigative powers does the ACCC have?

The ACCC has power to:

• issue public warning notices where it has reason to believe that a person has breached the ACL and one or more persons has suffered loss or detriment as a result of the breach and it is in the public interest to issue the notice (s 223, ACL);

• issue an Infringement Notice where it has reason to believe that a person has breached the ACL (s 134A, CCA);

• accept court enforceable undertakings where it believes there has been a breach of the ACL and the party in question agrees to give the undertaking (s 87B, CCA); and

• commence proceedings to enforce breaches of the ACL, on its own behalf and as representative for a class of persons affected by the offending conduct. It can also seek compensation orders on behalf of injured persons and non-party consumers.

The remedies and types of orders the ACCC can seek and obtain in proceedings commenced by it include:

• civil pecuniary penalties — the maximum penalties are $1.1 million for corporations and $220,000 for individuals;

• disqualification orders — orders disqualifying a person from managing corporations as a result of certain contraventions of the ACL, in the event of prosecution or civil penalty proceedings being brought by the ACCC;

• declarations;

• injunctions;

• compensation orders (on behalf of injured persons and non-party consumers); and

• other non-punitive orders such as orders for corrective advertising, community service and implementation or compliance programs.

Proceedings for breach of those provisions of the ACL which are criminal offences (which are found in Ch 4 of the ACL) can also be initiated by the ACCC and/or brought by the Commonwealth Director of Public Prosecutions.

See What powers does the ACCC have to regulate and enforce conduct under the ACL?

When dealing with the ACCC in the exercise of its investigative, regulatory and enforcement powers it is important to bear in mind that:

• the powers of the ACCC frequently extend beyond that which would otherwise be available to a non-regulator and certain objections to the use of those powers may not be available;

• it is an offence to provide false or misleading information to the ACCC;

• in determining whether or not to pursue an investigation or proceedings the ACCC will have regard to its Compliance and Enforcement Policy; and

• the ACCC has a Cooperation Policy, which encourages co-operation where there has been a breach of the ACL, including by providing for the seeking of reduced penalties for such breach.