Fair Trading Act 1987

The Act casts a wide net. “Consumers” are the primary beneficiaries, although the definition of consumer for non-ACL purposes can be narrowed by regulation (s 3(3)). “Traders” — persons supplying goods or services or selling/leasing premises in the course of business — are subject to the bulk of obligations (s 3(1)). Reporting agencies that compile and supply prescribed reports attract the fair-reporting rules in Part 4.

Event organizers, authorised sellers and secondary ticket sellers are regulated under Part 4A; the definition of event organiser is the person who authorises first supply of tickets (s 37C). Motor vehicle insurers and repairers fall under Part 3B. Fuel retailers are captured by any fuel-pricing information scheme established under s 45F. Promoters of, and participants in, third-party trading schemes are regulated by Part 6. Creditors and their agents must observe debt-collection restraints in s 43. Bodies corporate and their directors face personal liability in defined circumstances (s 90(3) for certain offences; s 86B civil penalties).

The Small Business Commission assumes responsibility for business-to-business aspects of the ACL (SA), Part 3A industry codes (when declared) and most of Part 3B (s 4B(2)–(3)). Authorised officers (including the Commissioner, Small Business Commissioner and appointed public servants) exercise investigation and seizure powers (ss 76–78F). The Minister receives reports, may require information (s 28A), issue safety bans or recalls, and make declarations under Parts 4A and 6.

Courts are assigned specific roles: Magistrates Court for most ACL consumer matters and civil penalties; District Court for fair-reporting injunctions and assurance enforcement; Supreme Court for larger compensation and sequestration orders. Ultimately every South Australian resident, business, government agency carrying on business, and interstate participant whose conduct affects the State is potentially within the Act’s extraterritorial scope (s 4A(2)).

Consumers possess rights under the applied ACL (SA) — guarantees as to title, acceptable quality, fitness for purpose, correspondence with description, and remedies for failure (ACL ss 51–59, applied by s 14). They enjoy additional South Australian rights: accurate credit and tenancy reports (ss 31–34), protection from misleading ticket-resale advertising and excessive mark-ups (ss 37F–37G), and safeguards against high-pressure debt collection (s 43).

Traders must not engage in misleading or deceptive conduct (ACL s 18), make false representations, or supply unsafe goods. They face positive duties: to substantiate unfavourable hearsay in reports (s 31(2)(b)), disclose interests when referring insureds to repairers (s 28K), limit ticket resale profit (s 37G), refrain from making supply of a ticket contingent on other purchases (s 37H), and comply with any prescribed industry code (s 28E) or fuel-pricing scheme (s 45F(4)).

The Commissioner’s duties include attempting conciliation only with consumer consent or court request (s 8A(1)), maintaining a register of assurances (s 80), and publishing recreational-services rights information (s 42(6)). The Minister may require information to assess safety-standard compliance or decide on bans or recalls (s 28A), must publish certain notices in the Gazette (s 28B), and can declare ticket-availability obligations (s 37M).

Rights of defence exist: reasonable mistake, reliance on another’s information, or due diligence (s 88); honest-and-reasonable excuse for natural persons facing civil penalty (s 86B(6)). Qualified privilege attaches to credit-worthiness communications provided they do not breach orders (s 35). Crown immunity from pecuniary penalties and prosecution is preserved (s 25), though authorities remain liable.

Penalties are graduated. Criminal offences carry fines up to $100 000 for bodies corporate and $20 000 for individuals in ticket and certain ACL-related matters; imprisonment is available for some fair-reporting breaches (s 37(4)). Lower-level offences (e.g. failing to attend compulsory conciliation) attract $50 000 / $5 000 expiation (s 8A(4)). Civil penalties top out at $50 000 (body corporate) or $10 000 (natural person) per contravention (s 86B(1)), with courts required to consider nature, loss, benefit obtained, prior contraventions and other matters (s 86B(3)).

Expiation notices allow swift resolution of eligible civil-penalty contraventions (ss 86C–86I), with fees capped at $6 000 (corporate) or $1 200 (individual) for industry-code breaches (s 28F(1)(c)). Assurances registered under s 80 can be enforced by District Court orders including profit-stripping and compensation (s 82). Injunctions, compensatory orders and sequestration are available (ss 83, 85, 86). Authorised officers wield broad entry, inspection, seizure and embargo powers (ss 78–78C), backed by offences for hindrance, intimidation or impersonation (ss 78D–78F, maximum $5 000–$10 000).

Vicarious liability applies to principals and employers unless reasonable diligence is proven (s 90(1)). Directors face personal liability where they knew or ought to have known of a significant risk of offence under ss 28A or 37 and failed to exercise due diligence (s 90(3)). Evidentiary certificates and presumptions streamline proof (s 91).

The Act is expressly complementary. It applies the ACL (SA) alongside, but does not duplicate, Commonwealth ACL enforcement (ss 27–28). No double jeopardy for offences or civil penalties across participating jurisdictions (s 27). The Acts Interpretation Act 1901 (Cth) governs interpretation of the ACL (SA) (s 17), while South Australia’s Acts Interpretation Act 1915 is excluded.

Interaction with the Residential Tenancies Act 1995 is carved out for residential-tenancy databases (s 30(2)). Legal-practitioner bills are excluded from ACL s 101 (s 25A). Recreational-services waivers must comply with both this Act and the Civil Liability Act 1936 (s 42(3)). The Small Business Commission Act 2011 supplies the administrative machinery for the Commission’s functions under the Act (s 4B(5)).

Industry codes prescribed under Part 3A can overlap with Commonwealth franchising or horticulture codes but operate as State law for local participants. Fuel-pricing schemes sit alongside Commonwealth competition law. Public-warning powers are constrained so as not to duplicate ACL s 223 notices (s 48(3)). Common-law rights and remedies are preserved (s 92), and contracting-out is void (s 96).

The legislative history reveals incremental expansion. The Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 substituted the former Part 3 with the current ACL application framework, aligning South Australia with the national regime that commenced 1 January 2011. This was driven by the Intergovernmental Agreement for the Australian Consumer Law (defined in s 3(1)) to reduce regulatory duplication.

The Fair Trading (Ticket Scalping) Amendment Act 2018 inserted Part 4A to combat exorbitant secondary-market ticket prices that priced out ordinary consumers; caps, advertising requirements and bot prohibitions were seen as necessary to protect cultural and sporting access. The Fair Trading (Fuel Pricing Information) Amendment Act 2020 added Part 6B to promote price transparency at the pump, responding to consumer complaints about opaque pricing and sudden spikes.

The Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Act 2021 introduced Part 3B after inquiries revealed delays, opaque referrals and perceived conflicts of interest that left policyholders disadvantaged. The Statutes Amendment (Small Business Commission and Retail and Commercial Leases) Act 2024 (commencing 1 July 2025) further reallocates administrative responsibility between the Commissioner and Small Business Commission, reflecting a policy preference for business-to-business matters to be handled by the latter. Penalty increases in the Statutes Amendment (Building and Construction Industry Review—Penalties) Act 2025 will lift certain fines from 15 January 2026. Each reform addressed a discrete market failure while preserving the Act’s overarching consumer-protection architecture.

South Australian courts have applied the Act consistently with national ACL jurisprudence. In fair-reporting cases, the District Court has exercised powers under s 37 to restrain agencies from circulating unsubstantiated adverse information, emphasising the “best evidence reasonably available” obligation in s 31(2)(a). Ticket-resale prosecutions under s 37G have tested the “original supply cost” definition (s 37E), with certificates issued by the Commissioner proving decisive (s 37E(4)).

Controversies have arisen around the breadth of authorised-officer powers. Challenges to entry and seizure under s 78 have tested the “reasonable time” and “unnecessary disruption” qualifiers, but courts have upheld them where officers followed statutory pre-conditions. The civil-penalty regime in Division 3A has generated debate over the borderline between criminal and civil liability; the defence mirroring s 88 (s 86B(5)) and the honest-and-reasonable excuse carve-out (s 86B(6)) were inserted to mitigate concerns that quasi-criminal sanctions were being imposed without criminal-procedure safeguards.

The extraterritorial operation (s 4A) has been invoked in misleading-conduct claims involving interstate online traders affecting South Australian consumers, raising questions of nexus that mirror High Court authorities on s 92 of the Constitution. No major constitutional invalidity findings have occurred, but the Starr-Bowkett prohibition (s 43A) was controversial at enactment, requiring an interstate carve-out to avoid arguments of impermissible interference with interstate trade.

Most practitioners miss that the ACL (SA) applies to persons “ordinarily resident” in South Australia even if the conduct occurs wholly outside Australia (s 18(1)(c) and (2)). A trader with no physical presence in the State can therefore face injunctions and compensation orders for online misleading conduct targeting South Australians.

The interaction between s 28K insurer-disclosure obligations and the common-law duty of utmost good faith in insurance contracts is unresolved; failure to disclose a relevant interest could simultaneously breach the Act and render a policy claim denial reviewable for unreasonableness. Many assume Part 4A ticket rules apply only to profit-making resellers; in fact the advertising and contingency prohibitions bind event organisers and authorised sellers as well.

Civil expiation notices under s 86D can relate to up to three contemporaneous contraventions, yet payment of one does not preclude proceedings on the others unless all are expiated (s 86G(2)). The 60-day withdrawal restriction after payment (s 86H(3)) creates a trap for regulators who realise too late that a notice was issued to the wrong entity.

Assurances accepted under s 79 bind only the giver; directors or related entities can continue identical conduct unless separate assurances are obtained. The “no doubling-up” rule in s 27 applies only where punishment or a penalty has already been imposed in another participating jurisdiction; parallel investigations by ACCC and Commissioner remain possible until one proceeds to judgment.

Finally, the Minister’s power to require ticket-availability disclosure (s 37M) is conditioned on procedural fairness and public-interest findings, yet once made the declaration is enforceable by heavy penalties. Event organisers have been caught by overly optimistic “reasonable grounds” estimates that later prove inaccurate, exposing them to prosecution despite good-faith efforts.

Compliance begins with a gap analysis against the ACL (SA) guarantees and prohibitions, supplemented by South Australian overlays. Businesses should maintain an ACL compliance program that includes staff training on ss 18–29 prohibitions, product-safety standards (ACL Part 3-2) and unfair-contracts rules (ACL s 23). South Australian traders must additionally:

• For ticket sales, embed original-supply-cost calculations into resale platforms and ensure advertisements disclose seat details and cost (s 37F). Automated systems should block sales above 110 % (s 37G) and reject contingent bundling unless organiser-approved (s 37H).

• Motor-vehicle insurers must implement written disclosure protocols for relevant interests (s 28K(1)) and policy-choice rights (s 28K(2)), with records sufficient to withstand authorised-officer requests under s 77.

• Fuel retailers subject to a pricing scheme must register, supply real-time data feeds and avoid false information (s 45F(3)–(5)).

• Reporting agencies must adopt verifiable “best evidence” procedures (s 31(2)), purge race/religion data, and operate correction and notification systems meeting the 30-day and 60-day timelines in s 34.

• All traders should prepare templates for s 79 assurances and train debt-collection staff to observe the s 43 time, identity and inquiry rules.

• Contracts for recreational services must use the prescribed form, bring the waiver to attention, obtain express consumer agreement and supply the additional prescribed statement (s 42(2)).

Internal policies should require immediate reporting of authorised-officer notices, preservation of embargoed items (s 78C) and privilege against self-incrimination assertions where applicable (ss 28A(3), 77(3)). Annual reviews should check for new industry codes prescribed under s 28F and Ministerial declarations under s 37M. Where doubt exists, early engagement with the Commissioner for informal guidance or pre-emptive assurance can forestall enforcement action. Records must be kept for at least the three-year civil-penalty limitation period (s 86B(2)) and six-year compensation limitation (s 85(3) read with Limitation of Actions Act 1936).

By treating the Act as an integrated consumer-protection and sector-specific compliance code rather than a mere ACL add-on, organisations can minimise both legal risk and reputational exposure in the South Australian market.