1. Enforcement action and compliance work

Maintaining and enhancing compliance with the Competition and Consumer Act is a key objective of the ACCC. This is achieved by promoting competition and informing markets, encouraging fair trading and protecting consumers. The enforcement function of the ACCC is well supported by its liaison, analysis, outreach and compliance arms.

In this topic:

Complaints and inquiries

During the March 2012 quarter the ACCC responded to 50 737 complaints and inquiries from businesses and consumers (an increase of 11.14% from the December 2011 quarter. Email 19 315 (up14.77%), telephone 30 923 (up 8.81%) and letter correspondence 499 (up 23.55%).

Of these, 42 064 complaints and inquiries were entered into the ACCC’s database with 569 matters flagged for further consideration. Complaints and inquires not entered into the ACCC’s database were considered to raise issues that fall outside of the ACCC’s role and responsibility.

During the first quarter of 2012, the ACCC received elevated numbers of complaints and enquiries with an immediate and sustained impact on contact levels following the launch of the ACCC’s campaign to raise consumers’ awareness of their consumer guarantee rights under the Australian Consumer Law which ran throughout February.
 

Chart 1.1: The ten industries attracting the most complaints (excluding scams)

The chart shows the highest complaints from Miscelaneous Store-Based Retailing, moving down through to Clothing Retailing in the following order:

1. Miscelaneous Store-Based Retailing
2. Electrical and Elecytronic Appliance Retailing
3. Non-Store Retailing
4. Car Retailing
5. Finance and Investment Services
6. Fuel Retailing
7. Computer and Computer Peripheral Retailing
8. Furniture Retailing
9. Air Transport
10. Clothing Retailing

Scam contacts

Contacts about scam activity continued to be significant, accounting for 21 581 or 51 per cent of the complaints and enquiries entered into the ACCC’s database during the March 2012 quarter. The highest number of complaints was received in relation to advance fee fraud, and computer hacking scams (including the ‘Microsoft scam’).

 

Scam type	Number of reported scams
Advanced fee / up-front payment (Nigerian style)	7851
Modem-jacking / key-logging (including computer hacking)	2917
Online auction & shopping	2607
Lottery & sweepstakes	2316
Banking & online account (including Phishing)	1637
Unexpected 'prizes'	765
Job & employment (including business opportunity)	760
Dating & romance (including adult services)	670
False billing (advertising, directories, domain names, office supplies)	538
Mobile phone (ringtones, competitions, missed calls)	264

Enforcing the Act for businesses and consumers

In undertaking its enforcement and compliance activity, the ACCC remains committed to working in the interests of consumers. As Australia’s national consumer protection and competition agency, the ACCC manages its enforcement and compliance processes to achieve effective and efficient outcomes that serve the public interest, in accordance with the ACCC’s Enforcement and Compliance Policy, available at www.accc.gov.au. The ACCC works with the Treasury, Australian Securities and Investments Commission and state and territory Australian Consumer Law (ACL) regulators and in the committees established to facilitate ACL cooperation.

Litigation commenced

The ACCC commenced six first-instance litigation proceedings in the Federal Court of Australia during the March 2012 quarter for alleged breaches of the CCA or the former TPA.

Fair Trading and consumer protection

Air Asia Berhad

Justice Tracey—Federal Court Melbourne

Commenced 17 January 2012—VID39/2012

The ACCC instituted proceedings in the Federal Court against Air Asia BHD alleging the airline’s website failed to display airfare prices inclusive of all taxes, duties, fees and other mandatory charges.

The ACCC alleges that in August and September 2011 the Air Asia website displayed a non-inclusive fare pricing for certain routes and only displayed the correct fare on a subsequent booking page.

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Neighbourhood Energy & Anor

Justice Marshall—Federal Court Melbourne

Commenced 26 March 2012—VID268/2012

The ACCC instituted proceedings in the Federal Court against Neighbourhood Energy and its former marketing company in relation to their door-to-door selling practices.

The ACCC alleges that the respondents engaged in misleading and deceptive conduct. It is alleged that the respondents breached the ACL by failing to immediately leave the premises at the request of the occupier. The ACCC contends that consumers requested the salespeople to leave by placing a ‘do not knock’ sign on their door.

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AGL Sales Pty Ltd & Ors

Justice Middleton—Federal Court Melbourne

Commenced 26 March 2012—VID267/2012

The ACCC instituted proceedings in the Federal Court against AGL Sales and its marketing company in relation to their door-to-door selling practices.

The ACCC alleges that the respondents engaged in misleading and deceptive conduct and made a range of false representations to consumers in the course of door-to-door selling. 

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Apple Pty Ltd & Anor

Justice Bromberg—Federal Court Melbourne

Commenced 28 March 2012—VID271/2012

The ACCC instituted legal proceedings in the Federal Court against Apple for misleading advertising.

The ACCC alleges that Apple’s recent promotion of the new ‘iPad with WiFi and 4G’ is misleading because it represents to Australian consumers that the product can, with a SIM card, connect to a 4G mobile data network in Australia, when this is not the case.

Competition

Eternal Beauty Products Pty Ltd & Anor

Justice Murphy—Federal Court Melbourne

Commenced 30 January 2012—VID79/2012

The ACCC instituted proceedings in the Federal Court against Eternal Beauty Products and its director Ms Penny Rider alleging the company engaged in resale price maintenance by inducing or attempting to induce two retailers not to sell products online at prices less than those specified by the company.

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Flight Centre Ltd

Justice Logan—Federal Court Brisbane

Commenced 9 March 2012—QUD177/2012

The ACCC instituted proceedings in the Federal Court against Flight Centre alleging the company attempted to induce competitors to enter into price fixing arrangements.

The ACCC alleges that on six occasions between 2005 and 2009, Flight Centre attempted to induce international airlines Singapore Airlines, Malaysian Airlines and Emirates to agree to stop offering their international airfares directly to the public at prices less than Flight Centre offered. It is alleged that the purpose and likely effect of the attempted arrangements sought by Flight Centre was to stop the airlines undercutting Flight Centre so that is was able to maintain the level of commissions it received from the airlines.

Proceedings concluded

Three first-instance enforcement litigation proceedings relating to fair trading and consumer protection were finalised during the March 2012 quarter. One appeal was finalised during the March 2012 quarter.

Fair trading and consumer protection

Trade Quip Pty Ltd (first instance proceedings and contempt proceeding)

Justice Murphy—Federal Court Melbourne

Commenced 22 July 2011—Concluded 29 February 2012—VID792/2011, VID334/2006

Proceedings related to Trade Quip supplying four models of hydraulic trolley jacks that did not comply with the prescribed product safety standard, and supplying one model of trolley jack marked with a statement representing that the jack complied with the mandatory standards when it did not.

The contempt proceedings related to breach of orders made by Justice Weinberg on 1 August 2007.

First instance proceedings outcome—pecuniary penalty $100 000, injunction, establishment of a compliance program, corrective notices, contribution towards ACCC costs.

Contempt proceeding outcome—penalty $7 500.

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Hooker Meats Pty Ltd

Justice Middleton—Federal Court Melbourne

Commenced 18 August 2011—Concluded 23 February 2012—VID889/2011

Proceedings in the Federal Court against Hooker Meats alleging misleading place of origin representations. Hooker Meats admitted they had engaged in misleading and deceptive conduct by falsely claiming that the meat it offered for sale was sourced from King Island.

Outcome—pecuniary penalty $50 000, declarations and undertaking.

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Turi Foods Pty Ltd & Ors

Justice Tracey—Federal Court Melbourne

Commenced 5 September 2011—Concluded 23 January 2012—VID974/2011

Proceedings in the Federal Court against Turi Foods and others for alleged misleading and deceptive conduct and misleading representations regarding the space available for meat chickens to roam freely in various advertising. Turi Foods admitted they had engaged in the alleged conduct.

Proceedings against the second, third and fourth respondents are continuing.

Turi Foods Outcome—Declarations, injunctions, corrective advertising, pecuniary penalties $100 000, establishment of a compliance program.

Other

Singtel Optus Pty Ltd (appeal)

Chief Justice Keane, Justices Finn and Gilmour—Full Federal Court Sydney

Commenced 28 July 2011—Concluded 7 March 2012—NSD1245/2011

Proceedings related to advertising for the ‘Think Bigger’ and ‘Supersonic’ broadband internet plans. The ACCC alleged misleading and deceptive conduct, and false or misleading representations in relation to the advertising of these internet products. Optus appealed the extent of the penalty imposed by the court at first instance, raising issues including as to certain factual findings made by the primary judge. 

The Full Federal Court allowed the appeal and set aside the penalties originally ordered on the basis that the primary judge erred in making certain factual findings. However, the Full Federal Court supported the initial findings in relation to the seriousness of the conduct and the need for a substantial penalty.

Outcome—Pecuniary penalty $3.61 million.

Court enforceable undertakings accepted

The ACCC accepted seven enforcement-related, court enforceable undertakings (under section 87B of the CCA) during the March 2012 quarter.

Fair trading and consumer protection

Furniture Galore Pty Ltd

Undertaking given 10 January 2012

Undertaking related to misleading and deceptive conduct and false or misleading representations made in relation to the advertising of goods on sale. Furniture Galore has also paid three infringement notice penalties to the ACCC relating to this conduct.

Outcome—Furniture Galore has undertaken that it will refrain from engaging in similar conduct in the future, publish corrective notices, and implement a trade practices compliance program.

View the Furniture Galore Pty Ltd undertaking.

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Australian Workplace Services Pty Ltd (AWS)

Undertaking given 10 January 2012

Undertaking related to false or misleading representations made in relation to the selling or promoting of safety products. AWS made representations that there was a requirement under relevant workplace safety laws of the state in which the business was located for the business to maintain information and material of the same nature as those supplied or offered for supply by AWS, when in fact there was no such requirement.

Outcome—AWS has undertaken it will refrain from engaging in similar conduct in the future, publish corrective notices on its website, and implement a trade practices compliance program.

View the Australian Workplace Services Pty Ltd (AWS) undertaking

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John Gerard O’Halloran

Undertaking given 10 January 2012

As the director and day-to-day manager of AWS, Mr John O’Halloran has provided a separate court enforceable undertaking in relation to false or misleading representations AWS made in relation to the selling or promoting of their safety products.

Outcome—Mr O’Halloran has undertaken he will not make, or be directly or indirectly knowingly concerned in, or party to a corporation making representations to consumers that they are required by state or territory health and safety laws to maintain information and/or materials of the same nature as those supplied or offered for supply by AWS, when this is not the case.

View the John Gerard O’Halloran undertaking

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Under the Wing Pty Ltd

Undertaking given 25 January 2012

Undertaking related to resale price maintenance. Under the Wing, a sales agent representing designers of fashion handbags and other goods, attempted to induce an on-line reseller not to sell handbags below the recommended retail prices specified by the handbag designer.

Outcome—Under the Wing has undertaken it will refrain from engaging in similar conduct in the future, write to its clients to alert them to the undertaking and implement a trade practices compliance program.

View the Under the Wing Pty Ltd undertaking

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Paul Maloney Fashion Agency Pty Ltd

Undertaking given 25 January 2012

Undertaking related to resale price maintenance. Paul Maloney Fashion Agency, a sales agent representing designers of fashion handbags and other goods, attempted to induce an on-line reseller not to sell handbags below the recommended retail prices specified by the handbag designer.

Outcome—Paul Maloney Fashion Agency has undertaken it will refrain from engaging in similar conduct in the future, write to its clients to alert them to the undertaking and implement a trade practices compliance program.

View the Paul Maloney Fashion Agency Pty Ltd undertaking

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Edwards Essences Pty Ltd

Undertaking given 22 February 2012

Undertaking related to resale price maintenance. Edwards Essences has made it known to a distributor that it should not sell goods supplied to it by Edwards at a price less than the recommended retail price specified by Edwards.

Outcome—Edwards has undertaken it will refrain from engaging in similar conduct in the future, write to all Edwards distributors to advise them of the undertaking and the Director will attend a trade practices compliance program.

View the Edwards Essences Pty Ltd Undertaking.

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Noonkanbah Enterprise Management Company Pty Ltd

Undertaking given 13 March 2012

Undertaking related to false or misleading conduct in relation to selling some products well beyond ‘best before’ dates and displaying shelf prices that were lower than the actual purchase prices.

Outcome—Noonkanbah has undertaken it will refrain from engaging in similar conduct in the future, ensure store managers attend a compliance seminar on the CCA, display an in-store corrective notices and make the ACCC FairStore: a best practice guide for stores serving remote and indigenous communities publication available to customers.

View the Noonkanbah Enterprise Management Company Pty Ltd undertaking.

Other items in ACCCount 1 January to 31 March