Taking your Problems to the Australian Competition Tribunal

Posted on: 3rd March 2013

Australian Competition and Consumer Commission

The Competitions and Consumer Act 2012 is a law put in place to prevent unconscionable conduct. When loosely interpreted, the law can mean several things. Thankfully the  (ACCC) has released a breakdown to help regular folks understand exactly what ‘unconscionable conduct’ means.


These principles are used by tribunals to decide if conduct is unconscionable or not. The ACCC breakdown gives companies useful tips to stop them from becoming involved in unconscionable conduct. In addition, it protects them from engaging in unconscionable conduct with consumers and other businesses.


The breakdown further explains the meaning of the term ‘unconscionable conduct’ by providing examples of ACCC prosecutions based on  unconscionable conduct towards elderly consumers, non-English speakers and franchisees.


Unfortunately, The Competitions and Consumer Act hasn’t defined the concept of unconscionable conduct fully, and this presents some difficulties. One way to work out if conduct is unconscionable is if it’s oppressive and harsh. Unconscionable conduct also arises when one party knowingly exploits a disadvantaged party.


Unconscionable conduct is much more than simply trying to get the best deal.


Factors to take into consideration


Before conduct is deemed unconscionable, there are several factors that need to be assessed. These are listed below:


  • The bargaining strength of each party


  • Have conditions been imposed on the weaker party in order to provide protection for the stronger party’s interests?


  • Was the document clearly understood by the weaker party?


  • Has the stronger party used pressure, unfair tactics or undue influence?


  • The weaker party’s ability to purchase and sell equivalent goods based on price and other circumstances


  • Were the requirements of industry codes followed?


  • Is the stronger party willing to negotiate?


  • Does the stronger party have the unilateral right to change contract terms?


  • The level of good faith that existed between both parties


  • Whether the stronger party acted with ill-regard to conscience.

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