The Competition and Consumer Act 2010 (Cth) — Overview

Introduction

The Competition and Consumer Act 2010 (Cth) (the CCA) is Australia’s principal competition and consumer protection statute. Originally enacted as the Trade Practices Act 1974 (Cth) under the Whitlam Government, the Act was renamed in 2010 following significant amendments and the incorporation of the Australian Consumer Law (ACL) as Schedule 2. The Act is administered and enforced by the Australian Competition and Consumer Commission (ACCC), established under Part II of the Act.

The CCA serves three principal functions: (a) the regulation of anti-competitive conduct (competition law); (b) the protection of consumers from unfair trading practices (consumer law); and (c) the regulation of product liability (manufacturer’s liability). The Act applies to “corporations” in reliance on the Corporations Power (s 51(xx) of the Constitution) and the incidental power (s 51(xxxix)), and extends (by the effect of State application legislation) to natural persons carrying on business activities.

The Competition Provisions (Part IV)

Part IV of the CCA prohibits certain forms of anti-competitive conduct. The provisions are modelled on the antitrust laws of the United States (the Sherman Act) and reflect the economic philosophy that competition in markets serves the public interest by promoting efficiency, innovation, and lower prices.

Cartel Conduct (ss 44ZZRF–44ZZRG)

The most serious form of anti-competitive conduct is cartel conduct, which is prohibited by Division 1 of Part IV. The provisions (inserted in 2009) criminalise contracts, arrangements, or understandings between competitors that involve: (a) price-fixing (agreeing on prices for goods or services); (b) restricting output (agreeing to limit production or supply); (c) allocating customers, suppliers, or territories (market sharing); or (d) bid-rigging (agreeing on the outcome of a tender or auction).

Cartel conduct carries both criminal and civil penalties. Individuals may be imprisoned for up to 10 years and may be disqualified from managing corporations. Corporations may be subject to civil pecuniary penalties of the greater of $10 million, three times the value of the benefit derived, or (if the benefit cannot be determined) 10% of the corporation’s annual turnover. The ACCC works closely with the Commonwealth Director of Public Prosecutions in cartel enforcement.

Anti-Competitive Agreements (s 45)

Section 45 prohibits contracts, arrangements, or understandings that have the purpose, effect, or likely effect of substantially lessening competition in a market. The provision applies to both horizontal agreements (between competitors) and vertical agreements (between firms at different levels of the supply chain). The prohibition requires an assessment of the competitive effects of the agreement, having regard to the market structure, the nature of the restraint, and the countervailing benefits of the agreement.

Misuse of Market Power (s 46)

Section 46 prohibits a corporation that has substantial market power from engaging in conduct that has the purpose, effect, or likely effect of substantially lessening competition in a market. The provision was significantly amended in 2017 (following the Harper Review) to replace the previous “purpose” test with an effects test — aligning Australian law with international approaches in the United States, the European Union, and Canada.

A corporation has “substantial market power” where it has the ability to act without constraint from competitors, customers, or suppliers: Queensland Wire Industries v Broken Hill Proprietary (1989) 167 CLR 177. The provision does not prohibit the mere possession of market power; it prohibits the anti-competitive use of that power. Conduct that may breach s 46 includes predatory pricing, refusal to supply essential inputs, and loyalty rebates designed to foreclose competition.

Exclusive Dealing (s 47)

Section 47 prohibits exclusive dealing — conduct by which a corporation supplies or acquires goods or services on condition that the other party restrict their dealings with third parties — where the conduct has the purpose, effect, or likely effect of substantially lessening competition. The provision covers: full-line forcing; third-line forcing (supplying on condition that the buyer acquire goods from a particular third party); and exclusive dealing in the form of exclusive supply or acquisition arrangements.

Third-line forcing is prohibited per se (without the need to demonstrate a substantial lessening of competition), unless the corporation has obtained a notification from the ACCC.

Resale Price Maintenance (s 48)

Section 48 prohibits the practice of resale price maintenance (RPM): a supplier may not specify a minimum price below which a reseller may not sell the supplier’s goods. RPM is prohibited per se. The provision does not prohibit the supplier from recommending a resale price (as long as it is clearly stated to be a recommendation) or from withholding supply on legitimate grounds unrelated to pricing.

Mergers and Acquisitions (s 50)

Section 50 prohibits a corporation from acquiring shares or assets if the acquisition would have the effect or likely effect of substantially lessening competition in a market. The ACCC reviews proposed mergers and may oppose them through: (a) informal clearance (a non-binding letter from the ACCC stating that it does not intend to oppose the acquisition); (b) formal clearance (a binding determination by the ACCC); or (c) authorisation (where the ACCC is satisfied that the public benefit outweighs the anti-competitive detriment).

In 2025, Australia introduced a mandatory and suspensory merger clearance regime (the Competition and Consumer Amendment (Mergers) Act 2025), replacing the previous voluntary notification system. Under the new regime, all acquisitions above specified thresholds must be notified to the ACCC and cannot proceed until the ACCC has completed its review.

Authorisation and Notification (Part VII)

Part VII of the CCA provides mechanisms by which corporations can obtain immunity from legal action for conduct that would otherwise contravene the competition provisions. Under authorisation, the ACCC or the Australian Competition Tribunal may grant immunity where it is satisfied that the public benefit from the proposed conduct outweighs the public detriment. Authorisation is available for most forms of anti-competitive conduct, including mergers, anti-competitive agreements, and exclusive dealing.

Notification is a simpler process available for exclusive dealing (including third-line forcing) and, in some circumstances, resale price maintenance. The notifier simply lodges a notice with the ACCC; the conduct may proceed unless the ACCC issues a notice opposing it.

The Australian Competition and Consumer Commission

The ACCC is the independent statutory authority responsible for enforcing the CCA. It is established under Part II of the Act as a commission comprising a Chair, a Deputy Chair, and Commissioners. The ACCC’s functions include: (a) investigating suspected contraventions of the Act; (b) instituting proceedings in the Federal Court for injunctions, pecuniary penalties, and other remedies; (c) reviewing proposed mergers and granting authorisations and notifications; (d) undertaking market studies and making recommendations to government; and (e) providing guidance to business and consumers.

The ACCC has significant enforcement powers, including the power to compel the production of documents and information (s 155 notices) and to examine witnesses. The ACCC may accept court-enforceable undertakings in lieu of formal proceedings and may issue infringement notices for certain contraventions.

The Australian Consumer Law (Schedule 2)

The Australian Consumer Law (ACL), contained in Schedule 2 to the CCA, is Australia’s national consumer protection law. It applies as a law of the Commonwealth (in relation to corporations) and, by virtue of State application legislation (the ACL as applied by each State and territory), to all persons (including natural persons) in Australia.

Unconscionable Conduct (ss 20–22)

The ACL prohibits unconscionable conduct in trade or commerce. Section 20 applies the common law doctrine of unconscionable conduct (as defined in Commercial Bank of Australia v Amadio (1983) 151 CLR 447). Sections 21–22 provide a broader statutory prohibition on unconscionable conduct in connection with the supply or acquisition of goods or services, extending to conduct that is “unconscionable” within the meaning of the unwritten law. The provisions apply to dealings with both consumers and businesses (including small business).

Unfair Contract Terms (ss 23–28)

The ACL provides that a term of a standard form consumer contract or standard form small business contract is void if the term is unfair. A term is unfair if it: (a) would cause a significant imbalance in the parties’ rights and obligations; (b) is not reasonably necessary to protect the legitimate interests of the party advantaged by the term; and (c) would cause detriment (financial or otherwise) if relied upon. The prohibition applies to terms that exclude or limit liability, penalise breach, or permit unilateral variation of the contract. The unfair contract terms provisions were amended in 2022 to provide for pecuniary penalties.

Consumer Guarantees (ss 51–66)

The ACL implies a set of consumer guarantees into the supply of goods or services to a consumer. For goods, the guarantees include: that the goods are of acceptable quality (s 54); that they are fit for any disclosed purpose (s 55); that they match their description (s 56); and that they correspond with any sample or demonstration model (s 57). For services, the guarantees include: that the services will be rendered with due care and skill (s 60); and that they will be fit for a particular purpose (s 61). The consumer guarantees are not capable of exclusion, restriction, or modification by contract (“no contracting out”).

Product Liability (Part 3-5, ss 138–150)

Part 3-5 of the ACL imposes strict liability on manufacturers for harm caused by goods that have a “safety defect” — a defect that makes the goods not as safe as persons are generally entitled to expect. The regime applies where the goods cause: personal injury (s 138); loss or damage to other goods (s 139); or loss or damage to land or buildings (s 140). The manufacturer is liable without proof of fault or negligence; the plaintiff need only prove that the goods were defective and that the defect caused the harm. The regime operates alongside the common law of negligence.

Unsolicited Consumer Agreements

The ACL regulates unsolicited consumer agreements (door-to-door sales and telemarketing), imposing a 10-day “cooling-off” period, requiring the supplier to provide a written agreement, and prohibiting misleading conduct during the sales process.

The Harper Review and Subsequent Amendments

The Harper Review (the Competition Policy Review, chaired by Professor Ian Harper, 2015) conducted a comprehensive review of the competition provisions of the CCA. The Review’s recommendations, substantially implemented in the Competition and Consumer Amendment (Competition Policy Review) Act 2017, included: (a) the introduction of the “effects test” for misuse of market power (s 46); (b) the removal of the per se prohibition on third-line forcing (now subject to a substantial lessening of competition test, subject to notification); (c) the repeal of s 45(2)–(9) and the rationalisation of the anti-competitive agreement provisions; and (d) the extension of the authorisation process.

The Hilmer Review (the National Competition Policy Review, 1993, chaired by Professor Fred Hilmer) had earlier laid the foundations for competition law reform in Australia, including the application of the CCA to government businesses and the introduction of the competition payments system.

Enforcement and Remedies

The CCA provides a range of enforcement mechanisms and remedies. The ACCC may seek: pecuniary penalties (civil penalties for contraventions of Part IV and the ACL); injunctions to restrain ongoing contraventions; declarations as to the legal effect of conduct; compensation orders for loss or damage suffered; and non-punitive orders (including community service orders, probation orders, and disclosure orders). The Federal Court has jurisdiction to hear and determine matters arising under the CCA and may impose penalties of up to $50 million for serious contraventions of the ACL (following the 2022 amendments increasing maximum penalties).