Fair Trading Act 1989

The FTA casts a wide net. Its primary audiences are:

1. Consumers (defined in s.5 by reference to the ACL(Q) s.3). Any individual or business acquiring goods or services predominantly for personal, domestic or household use is protected. The ACL’s consumer guarantees (ACL pt 3-2) and unfair contract term regime (ACL pt 2-3) apply to them.

2. Businesses (“persons carrying on business within Queensland” – s.4A(1)(a)). This includes sole traders, partnerships, companies, and trusts. Even interstate or overseas suppliers are caught if they have a relevant connection with Queensland (s.4A(1)(d)). Manufacturers, importers, distributors, retailers, service providers, and advertisers are all subject to the ACL’s prohibitions on misleading conduct, the product safety regime, and the consumer guarantee provisions.

3. The Commissioner for Fair Trading and inspectors appointed under the Public Sector Act 2022 (ss.8–12). The Commissioner’s functions (s.11) include complaint handling, education, investigation, and enforcement. Inspectors possess entry, search, seizure, and information-gathering powers (ss.89–90).

4. Courts and QCAT. The FTA allocates jurisdiction with precision (ss.48–51, 50A–50D). QCAT hears minor civil disputes and motor vehicle claims up to $100,000 (s.50A). Magistrates Courts, the District Court and the Supreme Court hear pecuniary penalty applications, injunctions, compensation orders and disqualification orders according to monetary limits and the nature of the relief sought.

5. Government entities. The Crown is bound (s.7) but is not liable to pecuniary penalties; its agents remain personally liable. Sections 24–27 contain detailed rules ensuring that when a State or Territory carries on a “business” it is subject to the ACL(Q), but non-commercial governmental activities are excluded.

The Act therefore affects virtually every participant in the Queensland marketplace, from the corner café to multinational corporations, and from individual consumers to public sector agencies.

Consumer rights flow principally from the ACL(Q). Consumers enjoy statutory guarantees that goods are of acceptable quality, fit for purpose, safe, and match their description (ACL ss.54–59). Services must be rendered with due care and skill (ACL s.60). Consumers may reject goods or services for major failure (ACL ss.259, 267) and obtain compensation for consequential loss (ACL s.236). Unfair terms in standard-form consumer contracts are void (ACL s.23). Consumers have a right to damages for misleading conduct (ACL s.236) and may seek compensation orders (ACL s.237) or redress for non-party consumers (ACL s.239).

Business duties mirror these rights. Suppliers must not engage in misleading or deceptive conduct (ACL s.18), make false representations (ACL s.29), or supply goods that do not comply with safety standards (ACL s.106). Manufacturers face strict liability for defective goods causing injury (ACL ss.138–141). Businesses must comply with information standards and labelling requirements. Under the FTA itself, businesses must obey embargo notices (s.45), safety standards prescribed under s.83, and Ministerial prohibition orders (s.85).

Regulator powers are extensive. The Commissioner may accept enforceable undertakings (ACL s.218, extended by FTA s.62), issue public warning notices (ACL s.223, extended by FTA s.63), and seek pecuniary penalties, injunctions, and disqualification orders. Inspectors may enter premises without warrant in certain circumstances (s.89), issue infringement notices (s.31), and seize goods (s.91A). The Commissioner may obtain information by written requisition (s.90).

Defences are preserved. The ACL’s Chapter 4 Part 4-6 defences apply to FTA offence provisions (s.57). The due diligence defence in ACL s.85(1) is available for certain product liability offences. Section 72 protects publishers who publish advertisements in the ordinary course of business.

Penalties are severe. For a body corporate, the maximum civil penalty for most ACL contraventions is the greater of $50 million, three times the benefit obtained, or 30% of adjusted turnover (ACL s.224). For individuals it is $2.5 million. Criminal offences under ACL Chapter 4 carry fines of up to 20,000 penalty units for corporations and 4,000 for individuals, plus possible imprisonment.

FTA-specific offences attract lower but still substantial penalties. Breach of an embargo notice (s.45) carries 200 penalty units for a body corporate or 40 for an individual. Supplying goods contrary to a safety standard (s.84) carries 1,100,000 penalty units for a body corporate or 220,000 for an individual (when the value of a penalty unit is taken at the Commonwealth rate). Infringement notices are capped at 600 penalty units for listed corporations, 60 for other bodies corporate, and 12 for individuals for most provisions (s.33).

Enforcement tools are graduated. The Commissioner may begin with education or an enforceable undertaking. Infringement notices provide a quick administrative route (ss.30–37). For serious or persistent breaches the Commissioner may seek injunctions (s.65), compensation orders (s.67), pecuniary penalties (s.64), or adverse publicity orders (s.69). Asset preservation orders (s.46) prevent dissipation of funds pending litigation. Embargo notices (ss.38–45) allow immediate cessation of supply of unsafe goods or services.

Criminal prosecutions are brought by inspectors or, with the Commissioner’s approval, by other persons (s.94(6)). The limitation period for summary proceedings is generally three years (s.58 applying ACL s.212). The Criminal Code (Qld) applies to FTA offences (s.53).

The FTA is expressly designed to sit within a national scheme. Section 4 declares that Part 1 (other than ss.1 and 3) does not apply to the interpretation or operation of the ACL(Q), which has its own definitions (ACL s.2). The Acts Interpretation Act 1901 (Cth) applies to the ACL(Q) instead of the Queensland Acts Interpretation Act 1954 (s.19).

The FTA interacts with the Competition and Consumer Act 2010 (Cth) by applying its Schedule 2 as Queensland law. Federal Court decisions interpreting identical ACL provisions are therefore highly persuasive. Section 4B(3) provides that a reference to a particular ACL(Q) provision is a reference to the corresponding numbered provision in the Commonwealth Schedule.

At State level, the FTA interacts with the Queensland Civil and Administrative Tribunal Act 2009. QCAT has jurisdiction for minor civil disputes and motor vehicle claims up to $100,000 (ss.50, 50A). The Motor Dealers and Chattel Auctioneers Act 2014 supplies the definition of “motor vehicle” for s.50A.

The FTA’s safety and information standard provisions complement product-specific statutes such as the Heavy Vehicle National Law and food safety legislation. Where an overlap occurs, s.29 of the FTA prevents double recovery of pecuniary penalties or criminal punishment for the same conduct (applying ACL s.225).

The Public Sector Act 2022 governs appointment of the Commissioner and inspectors (ss.8–9). The Statutory Instruments Act 1992 governs regulations prescribing safety standards and codes of practice.

The most significant change was the Fair Trading (Australian Consumer Law) Amendment Act 2010, which replaced the former Part 3 (Trade Practices) with a new Part 3 that applies the ACL as a law of Queensland. The amendment was part of a national reform package agreed by the Council of Australian Governments in 2008 to reduce regulatory duplication. The Intergovernmental Agreement for the Australian Consumer Law (defined in s.14) underpins the scheme.

Subsequent amendments have been incremental. The Fair Trading and Other Legislation Amendment Act 2019 inserted ss.50A–50D to give QCAT jurisdiction over motor vehicle claims up to $100,000, reflecting consumer dissatisfaction with the cost and formality of court proceedings. The Fair Trading and Other Legislation Amendment Act 2022 updated references to the Public Sector Act 2022.

The 2010 changes were driven by the desire for a single national law, consistent enforcement, and removal of the previous “patchwork” of State and Territory fair trading Acts. The retention of Queensland-specific enforcement tools (infringement notices, embargo notices, Commissioner powers) was a deliberate policy choice to preserve local responsiveness.

Because the ACL(Q) mirrors the Commonwealth ACL, most litigation cites Federal Court authorities. Key Queensland decisions have clarified procedural matters rather than substantive law. In ACCC v Valve Corporation (No 3) [2016] FCA 196 (a Commonwealth case but directly applicable), the Court confirmed that the ACL applies to digital products supplied from overseas where there is a relevant Australian connection—consistent with the extended application in FTA ss.4A and 20.

Controversies have arisen around the breadth of the Commissioner’s information-gathering powers under s.90. The privilege against self-incrimination is abrogated (s.90(5)), but derivative use immunity is granted (s.90(6)). The provision has survived constitutional challenge on the basis that it is reasonably adapted to the legitimate end of consumer protection.

The interaction between FTA embargo notices and the common law tort of conversion has produced litigation. Courts have upheld the validity of embargo notices provided the inspector holds the requisite reasonable grounds (s.39(2)). Failure to comply with an embargo notice is a strict liability offence subject to the statutory defences in s.45(3).

QCAT’s expanded jurisdiction over motor vehicle claims (s.50A) has generated debate about whether the $100,000 limit includes or excludes GST and whether “motor vehicle” extends to caravans. The Tribunal has taken a broad view, consistent with the consumer-protection purpose of the provision.

Most practitioners miss three recurring traps.

First, the definition of “consumer” in the ACL (s.3) is not the same as the ordinary meaning. A business that acquires a $60,000 truck predominantly for business use is still a “consumer” for the purposes of the consumer guarantees if the truck is of a kind ordinarily acquired for personal, domestic or household use. The statutory presumption in ACL s.3(2) is often overlooked.

Second, the FTA’s extended application (s.4A) catches overseas suppliers who have never set foot in Queensland. A New Zealand online retailer that targets Queensland consumers via a .com.au website will be subject to the ACL(Q) and to the Commissioner’s investigative powers. Many compliance programs still assume a physical presence is required.

Third, the interaction between ACL unfair contract terms and the Personal Property Securities Act 2009 (Cth) is under-appreciated. A retention of title clause that is expressed too broadly may be an unfair term under ACL s.23 even though it creates a security interest. The Queensland Court of Appeal in Canon Finance Australia Ltd v Gadekat Pty Ltd [2015] QCA 2 confirmed that the unfair terms regime can invalidate clauses that would otherwise be enforceable under Commonwealth secured transactions law.

Another subtle point: s.53A modifies the definition of “unsolicited consumer agreement” for the purposes of the permitted hours provisions (ACL ss.73, 170) and the termination period (ACL s.82). Paragraph (d) of the ACL definition is excluded. This means door-to-door sales of services that would otherwise qualify as unsolicited consumer agreements are not caught by the strict timing and cooling-off rules. Many lawyers still cite the unamended ACL definition.

A robust compliance program should address the following:

• Mapping obligations. Identify every ACL prohibition and guarantee that applies to the business. For retailers this includes the consumer guarantees in ACL pt 3-2; for manufacturers it includes the defective goods liability regime in pt 3-5.

• Contract review. All standard-form consumer contracts must be audited against ACL s.23. Grey-list terms (ACL s.25) should be removed or redrafted. Particular attention should be paid to automatic renewal clauses, unilateral variation clauses, and broad exclusion clauses.

• Advertising clearance. All marketing material must be vetted for misleading or deceptive conduct (ACL s.18) and specific false representations (ACL s.29). Substantiation files should be maintained for performance claims.

• Product safety. If the business supplies goods subject to mandatory safety standards, ensure testing and certification are current. Implement a recall protocol that complies with ACL ss.122–127 and the FTA embargo notice regime.

• Record-keeping and notices. Retain documents that evidence compliance for at least six years. Ensure consumer guarantees are displayed where required and that refund policies do not purport to limit statutory rights.

• Staff training. Sales staff must be trained on the difference between “puffery” and actionable representations. Complaint-handling staff must understand the consumer guarantee remedies and the prohibition on demanding proof of purchase beyond a reasonable period.

• Incident response. Maintain a crisis management plan that includes immediate notification to the Commissioner when a serious product-related injury occurs (ACL s.131) and cooperation with any embargo or recall notice.

• Queensland-specific issues. Businesses should register with the Office of Fair Trading’s business names database if required, understand QCAT’s expedited motor vehicle jurisdiction, and monitor the Commissioner’s public warning notices on the departmental website.

Compliance is not a set-and-forget exercise. The Commissioner’s enforcement priorities change annually; the current focus is on dodgy online traders, unfair contract terms in the gig economy, and unsafe imported consumer products. Regular legal sign-off on new product lines and marketing campaigns is the cheapest form of insurance against the multi-million-dollar penalties now available.