Competition and consumer law

Competition and consumer law lawyers Sydney

The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law set out various key requirements regulating the standard of conduct that is expected of businesses generally as well as more stringent requirements when dealing with consumers.

In summary they ensure amongst other requirements:

Certain guarantees and warranty requirements when supplying goods and services to consumers are provided.
Businesses are restricted from engaging in certain conduct that is unfair, misleading, deceptive, or unconscionable;
Advertising and marketing related conduct is appropriately regulated;
Product safety and standards;
Anti-competitive behaviour is prohibited; and
Standard form contracts containing unfair terms are unenforceable.

Our team of highly skilled and experienced lawyers is dedicated to providing you with the highest quality legal advice and representation. With a deep understanding of competition and consumer law, we are well equipped to guide you through every step of the legal process.

Whether you’re a business facing competition law issues, or a consumer seeking protection under consumer law, we can help. Our services cover a wide range of legal issues, including anti-competitive conduct, misleading and deceptive conduct, and unfair contract terms, just to name a few.

We pride ourselves on providing our clients with a personalized and tailored approach to their legal needs. Our lawyers take the time to understand your specific situation and goals, and we work closely with you to achieve the best possible outcome.

Related insights

How to Manage an Employee’s Performance & Associated Disciplinary Action

1 ISSUE You have an employee who is under-performing in their work or behaviour and you wish to manage their performance and monitor it moving forwards. You may consider that a failure to improve in accordance with set guidelines should result in some form of disciplinary action[1]. In doing so it is important to consider various factors. This article does not cover situations where immediate dismissal as a result of serious / gross misconduct is appropriate. 2 CONSIDERATIONS 2.1 The terms of the employment contract and any relevant industrial award You need to consider the terms of the relevant employment contract and any other relevant provisions which may apply as a result of an applicable award. These may dictate part of the process which must be undertaken and/or the available disciplinary actions the breach of which may result in an unfair dismissal claim. 2.2 Policy and procedure for dismissal & adherence to policy Ensure that you have in place a policy which covers performance management procedures and adhere to them. Contact us for assistance in this regard. 2.3 Unfair dismissal – Part 3-2 of the Fair Work Act 2009 (Cth) (Act) Protected employees: National system employees are protected against “unfair” dismissal if they have completed at least 6 months of employment and a modern award or enterprise agreement applies to them. Alternatively if they have worked for more than 6 months for the employer and their income is less than the high income threshold then they will also be protected[2]. Unfairness: A person has been unfairly dismissed if: the person has been dismissed[3]; the dismissal was harsh, unjust, or unreasonable[4]; the dismissal was not consistent with the Small Business Fair Dismissal Code; and the dismissal was not a case of genuine redundancy[5]. Harsh, unjust or unreasonable: The Fair Work Commission can take into account any matter that it considers relevant but “must” take into account the following in deciding whether or not the dismissal was harsh, unjust, or unreasonable: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); (b) whether the person was notified of that reason; (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; (e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. Therefore, be upfront (don’t ambush), reasonable, clear, give warning(s), and allow the employee to have a support person present during discussion(s). Listen to the employee before making a decision. Small businesses & unfair dismissal: Importantly, employers who employ fewer than 15 employees are covered by unique provisions contained in the Small Business Fair Dismissal Code. Furthermore, employees who have worked for less than 12 months for small business employers are not eligible to make a claim for unfair dismissal. Otherwise, small business dismissals which comply with the Small Business Fair Dismissal Code are deemed to be fair. 2.4 General protections provisions – Part 3-1 of the Act – adverse action and workplace rights Briefly, a person must not take adverse action against another person in relation to the exercise of a workplace right by that other person. The term “workplace right” is very broad in scope and includes, without limitation any process under a workplace law e.g. cashing out leave, making flexibility arrangements, taking parental leave, taking industrial action, temporary absences etc etc. The term “adverse action” is also similarly broad, and includes, without limitation, dismissal or the alteration of the employees position to the employees prejudice. Employees are also protected from coercion and undue influence as well as misrepresentation about workplace rights. So, seek advice, and make sure your reasons for disciplining are only performance related. 2.5 Bullying – Part 6-4B of the Act Behaving unreasonably towards the employee where that behaviour creates a risk to health and safety could also constitute bullying. However, reasonable management action carried out in a reasonable manner does not constitute bullying. 2.6 Discrimination legislation – protected attributes Ensure that you do not implement your performance management program in an inappropriate manner where the employee has a protected attribute[6] to minimise the risk of falling foul of anti-discrimination legislation. 2.7 Proportionality of the disciplinary action Any performance management program should be closely monitored. The disciplinary action taken should be proportionate to the conduct of the employee. Record and confirm everything in writing. ……………………………… [1] For example in the form of a warning or dismissal [2] s.382 of the Act. See also ss383 and 384. [3] Either terminated by the employer or because the employee was forced to resign because of the employers conduct. See s.386 of the Act for further details. [4] See s.387 of the Act [5] See s.389 of the Act [6] Race, colour, sex, sexual preference, age, physicial or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or national extraction or social origin.

Protecting your brand & trade mark registration

Before choosing your brand: We have previously discussed important considerations when choosing the name of your business. Before you decide upon your brand (which may consist of a letter, word, name, number, logo, aspect of packaging, shape, colour, sound or scent) and launch it (including before you register your domain name) a trade mark availability search should be conducted by a professional to determine whether there are any existing registered or unregistered rights which may exist in similar brands. Benefits of trade mark registration: The mere registration of your company name or business name with the Australian Securities and Investments Commission (ASIC) does not protect your brand identity, or provide registered trade mark rights in your brand. Registration with ASIC is a legal obligation. However, registration as a trade mark with the Australian Trade Marks Office can provide your business with: an exclusive statutory monopoly to use your registered brand identity in respect of the goods and/or services for which it is registered in Australia; an easy way to prevent cybersquatting (the registration of a domain name which incorporates your brand by others); much easier and cheaper enforcement of your rights in your brand if someone else infringes your rights, for example, by using a brand which is either substantially identical or deceptively similar to your brand in respect of the same or similar goods and/or services; and a registered “asset” which can be licensed, assigned, and monetised. Only registered trade marks can apply the ® symbol. This puts others on notice that your brand is registered, and that you are likely to prosecute infringement. Costs: Your brand is your identity. It is valuable property to which your goodwill and reputation are attached. People who infringe your brand may derive benefits from your hard work or diminish your brand’s value through their actions (e.g. by selling inferior goods or services). Registration as a trade mark is typically a fairly inexpensive exercise if your brand does not currently infringe the rights of others (please refer to our earlier article here for further information). Goods and services are divided into “classes”. It is possible to obtain protection with IP Australia in one class for $330. This is a drop in the ocean when compared to the potential costs to your business of non-registration. Registration lasts for 10 years and is renewable. We provide trade mark registration advice and assistance at cost effective fixed fee rates.

does-your-business-need-a-privacy-policy

Do I Need a Privacy Policy on My Website in Australia?

The answer is mostly likely “yes”, even if you are a small business with annual turnover of less than $3,000,000. Under the Privacy Act 1988 (Cth) (Privacy Act), various types of entities are, in summary, required to comply with a prescribed set of 13 “Australian Privacy Principles”. The first principle requires a clearly expressed and up to date privacy policy, so that personal information is managed in an open and transparent manner. Government agencies, private and not for profit organisations including individuals (e.g. sole traders), companies, partnerships, unincorporated associations, and trusts are all required to comply. There are exemptions. For example, small businesses (i.e. those with annual turnover of less than $3,000,000 and which are not for example related to a larger company that is subject to the Privacy Act) might be exempt in limited circumstances. However, the practical reality is that as soon as small businesses handle any personal information and trade in personal information, they will be caught under the Privacy Act. Various other scenarios may also render small businesses liable to compliance with the Australian Privacy Principles (for example, small businesses who provide services to or on behalf of government agencies, those who are “reporting entities” (a broad category) under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), or those who operate residential tenancy databases etc). Furthermore, as soon as a business receives Tax File Number information about an individual (for example in a Tax File Number declaration upon the commencement of employment), certain obligations arise under the Privacy (Tax File Number) Rule 2015 (issued under s.17 of the Privacy Act). Employers for example would be best advised to ensure that they have a privacy policy (and consent covering purpose of collection, use, disclosure, storage etc) in place, compliant contractual clauses, and provide collection notices where appropriate. Non compliance with the Privacy Act can lead to significant fines. As a bare minimum, a privacy policy needs to cover the following: (a) the kinds of personal information that the entity collects and holds; (b) how the entity collects and holds personal information; (c) the purposes for which the entity collects, holds, uses and discloses personal information; (d) how an individual may access personal information about the individual that is held by the entity and seek the correction of such information; (e) how an individual may complain about a breach of the Australian Privacy Principles, or a registered APP code (if any) that binds the entity, and how the entity will deal with such a complaint; (f) whether the entity is likely to disclose personal information to overseas recipients; (g) if the entity is likely to disclose personal information to overseas recipients, the countries in which such recipients are likely to be located if it is practicable to specify those countries in the policy.

Automation, artificial intelligence and legal issues

By Newyorka Musabelliu and Chris Chang – January 2020 It is not surprising that the law cannot keep up with the growth in artificial intelligence. Patent applications have already been filed on behalf of and in the name of a machine called Dabus that used AI to design two products[1]. Nevertheless, progress is being made regarding law reform in this space. In December 2019 the Australian Law Reform Commission released a report for law reform in connection with artificial intelligence over the next five years[2] and the World Intellectual Property Organization (WIPO) announced a public consultation process on artificial intelligence and intellectual property policy[3]. Below are some of the associated legal issues[4]. Table of Contents Key takeaways The implementation of different types of permanent controls, checks and balances on the AI which cannot be overridden is important given the different types of risks. The ALRC report notes recent commentary and states “appropriate design choices are crucial for automated systems to achieve consistency with concepts such as transparency and accountability; predictability and consistency; and equality before the law” and calls for effective regulation of technological developments. There are doubts as to whether mere principle based regulation will suffice and therefore the task of drafting such legislation will be both challenging and interesting. IP Law There are a multitude of issues to consider in view of the current landscape but, in summary, it is important to ensure the retention of personal control over the creative process and provide the input to at least a substantial part of the end result. Otherwise the risk is that you will lose rights in works authored by AI or jointly authored with AI unless reform addresses this. Reform debate primarily focuses on ownership where the work has been created by AI. Who should own the intellectual property rights (1) no-one (2) the AI, or (3) an interested party such as the producer. The latter is in our opinion the preferred option. In any other scenario this would be unsatisfactory to many businesses who have invested in AI and the fruits of the AI’s labour, including adaptations and compilations etc of those works. If left unaddressed, questions as to whether inventions presently created by AI can be registered as patents by persons other than the AI[5], or whether future applications based on such inventions are in fact already part of the prior art base and do not constitute inventive steps may also arise, and so forth. Who should be responsible for infringement by AI? We suggest the principles of agency law should apply. This question also opens the doors to liability for other positive acts of AI and questions concerning torts to the person for example which, given current advances in AI, is a possibility. Admin Law Even when automated systems are deployed carefully and effectively by government agencies, questions remain as to their compatibility with core administrative law principles and the rule of law. In particular, it is not yet clear whether (or how) such systems can be said to act with procedural fairness. The legality of actions and decisions by public bodies is called into question as is transparency and accountability of government decisions (in particular, whether automated decision-making software can provide adequate reasons that would in turn facilitate access to judicial and merits review where appropriate)[6]. The independent scrutiny of automated systems prior to implementation is already envisaged by the ALRC e.g. by way of algorithmic impact assessment[7] and therefore creators of AI are no doubt already focusing upon how to demonstrate compliance such tests if they havnt already done so. Privacy Law Information handled about individuals may not satisfy the definition of personal information under the Privacy Act 1988 (Cth) if the relevant person is for example allocated a code and is therefore not identifiable. Collection by AI may also occur without knowledge or consent (both of the public and the owner of the AI). Permanent checks and balances are likely to already be in place. Directors’ duties and defences It is important for directors to understand the technology upon which they place any reliance, and any limitations if they intend to rely on the safe harbor provisions contained in s.189 of the Corporations Act 2001 (Cth). Discrimination Studies have shown that inadvertent discrimination may occur in the AI’s implementation of its algorithms. Misuse of big data Other issues raised include the propensity for improper use of big data in the financial sector, and consumer law. The WIPO statement of issues goes into greater detail[8]. Discussion BACKGROUND AND STATUS OF AI As the phrase suggests, “artificial intelligence” (AI) is designed with the objective of imitating human intelligence artificially (and as has been proven, exceeding human intelligence in many ways, in the same way traditional computers have served us for so many years). Human intelligence includes accurate perception, analysis, logic / rationale, the ability to make calculated decisions based on objectives and, ultimately, solve problems. It also includes creativity. Machine learning has been available for years (e.g. for the purposes of electronic discovery in litigation). Algorithms are programmed in machines designed to learn both from large amounts of historic data and through their own, “personal”, experience and evolution, to make accurate predictions. Aside from significant advances in the use of artificial intelligence in the legal sector, we note some other examples of developments in recent times: The advanced use of AI as applied to gastrointestinal diagnostics. In particular, AI has been used in the “automated detection of disease and differentiation of pathology subtypes and disease severity[9]”; In October 2011, Takahiro Yamaguchi and So Kanno explored the link between the machine and art. The “Senseless Drawing Bot” is an autonomous device that sits on a skateboard which draws abstract lines using many colors. The robot moves from side to side, riding the wave of today’s modern graffiti. The lines drawn are complex and create abstract modern graffiti and one would have a difficult time arguing that the same work, if originally created by a human,