Increased competition and consumer law penalties now take effect

The maximum penalties for contraventions of competition law prohibitions in the Competition and Consumer Act 2010 (Cth) and offence and civil penalty provisions in the Australian Consumer Law have now markedly increased following the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) having received the Royal Assent.

Of particular note, the maximum penalty for any individual violation by corporation of a relevant provision is now the greater of:

• $50 million;
• three times the value of the benefit obtained; and
• if the court cannot determine the value of the benefit obtained, 30% of the company’s (and related bodies corporate’s) ‘adjusted turnover’ during the ‘breach turnover period’.

Of particular note, the ‘adjusted turnover’ penalty potentially has massive consequences given that the penalty is by reference to a corporate group’s revenue for the greater of 12 months and the entire period during which the breached occurred.

For individuals and those who may not otherwise be a body corporate, the maximum penalty is now $2.5 million.

The new penalty regime applies to offences committed, and contraventions, acts or omissions that occur, on or after 10 November 2022, with the stated expectation being that such penalties will act as a greater deterrent to prohibited conduct.

New maximum penalties will also apply to breaches of civil penalty provisions found in Parts IVBA, X and XICA of the Competition and Consumer Act 2010 (Cth), which relate respectively to the news media bargaining code, international liner cargo shipping and the telecommunications access regime, as well as for contraventions of provisions of the specialised ‘competition rule’ in Part XIB.

With this new penalty regime having taken effect, businesses should be reflecting on the risk points in their organisations that may lead them to contraventions of the Competition and Consumer Act 2010 (Cth) and/or the Australian Consumer Law and look to put in place policies, processes and practices to improve compliance.

Please contact Gadens if you need guidance on the implications of these changes and to address any concerns arising.

Authored by: 

Adam Walker, Special Counsel