Fair Trading Act 2010

The Act casts a wide net. Its primary beneficiaries are consumers, defined in s 7(1) (for purposes outside Part 3 and the ACL (WA)) as persons who acquire goods otherwise than for resale, hire or lease in the course of a trade or business, who use or may use services, or who acquire interests in land or become tenants otherwise than for business resale or sub-letting. Farmers are expressly excluded from the “trade or business” disqualification (s 7(3)). The ACL (WA) itself uses the broader ACL definition of “consumer” in s 3.

Businesses that supply goods or services in trade or commerce (s 6 definitions of “supply”, “trade or commerce”) are directly regulated. The Act applies to persons carrying on business in Western Australia, bodies corporate incorporated or registered under WA law, persons ordinarily resident in WA, or persons otherwise connected with the jurisdiction (s 24(1)). Conduct outside WA is caught if there is a sufficient territorial nexus under s 11 or s 24(2).

The Crown in right of Western Australia and other jurisdictions is bound when it carries on business (ss 10, 28–29), although it enjoys immunity from pecuniary penalties and prosecution (s 30). Authorities of the Crown do not share that immunity.

Regulated persons under the Registration Acts in Schedule 2 (real estate agents, motor vehicle dealers and repairers, settlement agents, debt collectors, land valuers, employment agents, charitable collectors and short-term rental providers) are subject to the Commissioner’s licensing, compliance-check and disciplinary functions (s 57A, Division 4A of Part 6, s 88E). Their advisory committees (property, motor vehicle, consumer) influence policy (ss 63C, 63G, 63K).

Investigators, authorised persons and assistants (ss 63–67) exercise coercive powers and are protected from certain liabilities. The Commissioner (s 55) and the Department hold significant administrative and enforcement responsibilities. SAT and the courts (Supreme, District, magistrates) are the fora for enforcement and review.

Suppliers of goods or services to consumers, publishers of advertisements, and persons who make representations are subject to the misleading conduct, unconscionable conduct, unfair contract terms, consumer guarantee, safety standard, and information standard prohibitions within the ACL (WA). Persons involved in contraventions (s 90) face accessorial liability.

Transitional provisions (ss 37–41, 52–54) continue to affect parties to pre-2011 contracts, undertakings and code contraventions. Ultimately, every participant in the WA consumer marketplace—individual shoppers, small traders, large corporations, government instrumentalities, licensed professionals and publishers—is either protected by, regulated by, or empowered under the Act.

Consumers enjoy a comprehensive suite of rights derived from the ACL (WA). These include guarantees as to title, undisturbed possession, acceptable quality, fitness for purpose, correspondence with description, and supply by sample (ACL (WA) ss 51–59). Rights to repair, replacement or refund arise on failure of a guarantee (ACL (WA) ss 259–265). Consumers may recover damages for foreseeable loss (ACL (WA) s 236) and obtain compensatory orders (s 105 of the Act, ACL (WA) ss 237–238). Unfair contract terms in standard form consumer or small business contracts are void (ACL (WA) s 23). Misleading or deceptive conduct is prohibited (ACL (WA) s 18), as is unconscionable conduct (ACL (WA) ss 20–22A) and unfair practices (ACL (WA) Part 3-1).

Businesses owe duties not to engage in the foregoing conduct, to comply with safety standards, bans and recall notices (ACL (WA) Part 3-3), to provide itemised bills on request (ACL (WA) s 101), and to adhere to information standards. Suppliers of unsolicited consumer agreements must comply with the strict rules in ACL (WA) Part 3-2 Division 2, including a cooling-off period. Where a prescribed code of practice applies, businesses must observe its terms; breach may lead to SAT orders under s 47.

The Commissioner has duties to promote consumer interests, investigate complaints, disseminate information, advise the Minister, and administer licensing regimes (ss 56, 57A). The Commissioner may issue public warnings where satisfied it is in the public interest (s 57). Advisory committees must advise on regulation, education and emerging issues (ss 63C, 63G, 63K).

Investigators and authorised persons must produce certificates of authority (ss 65–66), conduct interviews in private when requested (s 70), provide receipts for seized items (s 79), permit owner access to seized things where practicable (s 81), and return seized items when retention is no longer necessary (s 82). They must exercise powers reasonably; compensation is payable for damage caused by insufficient care (s 77).

Rights of review exist: SAT may review seizures (s 83). Persons subject to SAT orders under s 47 or injunctions under ss 99–100 may seek variation (s 104). Consumers and businesses on whose behalf the Commissioner litigates retain certain rights, although the Commissioner controls the conduct of proceedings (ss 49, 59).

Crown entities carrying on business are subject to the ACL (WA) but cannot be penalised or prosecuted (s 30). Legal professional privilege is preserved in limited circumstances (s 83(4)), and the privilege against self-incrimination is abrogated for information-gathering but the answers are inadmissible in most subsequent proceedings (s 86).

Criminal offences under the Act carry significant penalties. Breaches of the ACL (WA) are crimes (s 32), with the penalty stated in the ACL (WA) itself (commonly $1.1 million for corporations and $220,000 for individuals for most offences, with summary conviction penalties capped at $36,000). Specific offences include publishing advertisements implying approval by a consumer affairs authority (s 62, $10,000), failure to cooperate with investigations (s 88, $10,000), and obstruction (s 89, $2,000). Contravention of a s 106 asset-preservation order is a crime carrying $1.1 million/$220,000 penalties (s 107).

Civil pecuniary penalties under ACL (WA) s 224 are available for many contraventions. The civil standard of proof applies (s 33). Injunctions (ss 99–104), compensatory orders (s 105), and variation of contracts (s 105(4)) provide flexible remedies. The Commissioner or any person may seek injunctions (s 99); only the Commissioner may seek certain remedial injunctions under s 100.

Codes of practice are enforced via SAT orders under s 47 (cease conduct, rectify consequences, prohibit directors from similar breaches). Non-compliance with a SAT order is an offence punishable by $50,000 (s 47(6)). Undertakings given under predecessor legislation continue and may be enforced (s 53).

The Commissioner may conduct proceedings on behalf of consumers or businesses up to $100,000 or for specific performance (s 58(3)). Costs are borne by the Commissioner; recovered moneys (excluding costs) go to the consumer or business (ss 49, 59).

Enforcement is supported by broad investigatory powers, including warrantless compliance checks at regulated persons’ premises (s 88E) and police assistance (s 88D). Forfeiture of seized items is possible (s 84), with dealing by the chief executive officer (s 85).

Limitation periods are three years for offences (s 91). Various defences are available (ss 96–98), but vicarious liability (s 95) and officer liability under The Criminal Code (s 94A) extend responsibility. No doubling-up of criminal or civil liabilities occurs where conduct contravenes both the ACL (WA) and another application law or code (ss 31, 50).

The Act is expressly additional to, and not in derogation of, other laws relating to goods and services supplied to consumers (s 14(1)). It does not limit existing rights or remedies except as expressly provided (s 14(2)).

Section 15 provides that where a provision of ACL (WA) Part 3-3 or an applied regulation is inconsistent with an Act listed in Schedule 1 (including the Food Act 2008, Work Health and Safety Act 2020, Road Traffic Act 1974 and others) or an instrument made under such an Act, the Schedule 1 provision prevails. This carves out product safety regulation in those specialised domains.

The Sale of Goods Act 1895 is subordinated to ACL (WA) Part 3-2 Division 1 consumer guarantees in the event of inconsistency (s 35). The Act does not limit concurrent operation of Commonwealth, State or Territory laws (s 12).

The ACL (WA) is interpreted using the Acts Interpretation Act 1901 (Cth) rather than the WA Interpretation Act 1984 (s 23), ensuring national uniformity. Terms used in the ACL (WA) bear the same meaning in Part 3 (s 17(2)).

The Act repeals the Consumer Affairs Act 1971, Fair Trading Act 1987 and Door to Door Trading Act 1987 and makes consequential amendments (long title). Transitional provisions (Part 9, ss 37–41, 52–54) ensure continuity of prior codes, undertakings, orders and proceedings.

Licensing and regulatory functions under the Registration Acts in Schedule 2 are exercised by the Commissioner (s 57A). Compliance checks under s 88E support those regimes. Information obtained under the Act may be used for functions under any Schedule 2 Act or other legislation administered through the Department (ss 112–113).

The State Administrative Tribunal Act 2004 governs SAT reviews of seizures (s 83) and code enforcement. Court rules of evidence apply to pecuniary penalty proceedings (s 33). The Evidence Act 1906 s 11 is preserved in relation to self-incrimination (s 86(2)).

Asset preservation orders under s 106 operate subject to the Bankruptcy Act 1966 (Cth) (s 106(6)). The Act interacts with the Parliamentary Privileges Act 1891 (s 112(4)) and the Chattel Securities Act 1987 (s 114(5)).

The Fair Trading Amendment Act 2022 (No. 34 of 2022) introduced ss 19A–19E and amended s 19 to establish a formal Western Australian tabling, disallowance and proclamation mechanism for amendments to the Commonwealth ACL text and regulations. Previously, amendments applied automatically once they commenced federally. The change was driven by a desire to preserve parliamentary sovereignty over consumer law while maintaining national uniformity. Section 19D deals with amending laws passed after 1 June 2021 but before the 2022 Act’s commencement. Section 19E treats tabling as publication for Standing Order purposes.

The Directors’ Liability Reform Act 2023 (No. 9 of 2023) amended ss 94A and 95 to align officer liability with the model in The Criminal Code ss 39 and 41, reducing automatic personal liability for corporate offences and requiring proof of knowledge or recklessness in many cases. This reform reflects a national trend toward proportionate director liability.

The Short-Term Rental Accommodation Act 2024 added that Act to Schedule 2 and amended s 88E(1A) to exclude charitable collections and short-term rental activities from warrantless compliance checks, balancing consumer protection with regulatory efficiency in emerging sectors.

The Legal Profession Uniform Law Application Act 2022 amended s 8(4) to confirm that legal services under the Uniform Law are not “services” for the purposes of the Act, preserving the separate regulatory regime for lawyers.

The Work Health and Safety Act 2020 and Firearms Act 2024 were added to Schedule 1, ensuring that safety standards in those domains prevail over ACL (WA) Part 3-3.

These changes respond to the need to keep the Act aligned with national reforms, address emerging industries, refine liability rules, and maintain appropriate boundaries between general consumer law and sector-specific regulation.

Although the Act itself has not generated a large body of reported WA-specific appellate litigation, its ACL (WA) provisions have been the vehicle for numerous actions. Because ACL (WA) mirrors the Commonwealth ACL, Federal Court and High Court authorities are directly applicable. Key principles established in cases such as Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 on the characterisation of conduct as misleading, and Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 on unconscionable conduct, govern ACL (WA) litigation.

Controversies have arisen around the breadth of investigator powers. The abrogation of the privilege against self-incrimination (s 86) and the use of compelled answers (limited to proceedings for false or misleading information under s 88(1)(b)) have been criticised by practitioners as overly broad, although courts have upheld similar provisions in cognate legislation.

The Commissioner’s power to conduct proceedings on behalf of consumers (s 58) has raised questions about the independence of the litigant and potential conflicts where the Commissioner also investigates. Section 49(1)(b) gives the Commissioner complete control, which has been defended as necessary for public interest litigation but criticised by some defendants as creating an uneven playing field.

SAT orders under s 47 for code breaches have occasionally been challenged on the basis that the code itself is vague or that the Commissioner’s application lacks particularity. The consent jurisdiction in s 47(3) has been used pragmatically to avoid contested hearings.

The asset preservation orders under s 106 have been controversial in high-value consumer cases, with respondents arguing that the 30-day ex parte duration (s 106(5)) is insufficient to prepare a defence. Courts have balanced this against the protective purpose.

The interaction between ACL (WA) consumer guarantees and the Sale of Goods Act 1895 (s 35) has produced disputes over whether particular defects engage the statutory guarantees or the implied conditions under the older Act; the statutory hierarchy in s 35 has generally resolved these in favour of the ACL (WA).

No constitutional challenges to the application mechanism in s 19 have succeeded, the tabling and disallowance process having been designed to withstand arguments based on improper delegation.

Most practitioners underestimate the territorial reach. Section 24(2) and s 11(4) extend the ACL (WA) to conduct occurring wholly outside Western Australia provided there is a connection with the jurisdiction (e.g. a WA resident consumer or a contract whose proper law would be WA but for a choice-of-law clause). Overseas suppliers have been caught.

The definition of “consumer” in s 7 excludes business purchases but the ACL (WA) definition in ACL s 3 is broader and applies to the bulk of substantive rights. Advisers must check which definition governs the particular provision.

Computer access orders under s 75 are not limited to devices physically on the premises; they extend to any device “accessible from” a computer or storage device at the premises. Cloud accounts and remote servers are therefore within scope.

Section 57 warnings can name individuals and trading names without prior notice if the Commissioner considers it in the public interest. There is no statutory right of reply before publication, although natural justice may apply depending on the circumstances.

The no-doubling-up provisions (ss 31, 50) are not as protective as they appear. A person may still face both a pecuniary penalty under the ACL (WA) and a SAT order under s 47 if the conduct also breaches a code, provided the orders are not identical.

Transitional provisions continue to bite. Pre-2011 contracts are not subject to unfair contract terms provisions unless renewed or varied after 1 January 2011 (s 38), yet the entire contract may be affected if a term is varied (s 38(3)). Legal advice on legacy contracts must examine renewal and variation history.

The Commissioner’s power to assume conduct of existing litigation (s 58(1)(a)(ii)) can occur mid-proceeding without the consumer’s further consent once initial consent is given. Practitioners acting for defendants have been surprised when the Commissioner steps in and adopts an aggressive settlement posture.

Finally, many regulated persons forget that s 88E warrantless compliance checks can occur “even though an investigation is not under way in relation to any particular regulated person” (s 88E(3)). Routine audits are lawful.

Businesses should embed an ACL compliance program that addresses the specific prohibitions in Chapters 2 and 3 of the ACL (WA). This includes regular staff training on misleading conduct (ACL (WA) s 18), review of standard form contracts for unfair terms (ACL (WA) s 23), and robust processes for consumer guarantees (ACL (WA) ss 51–59). Records of decisions on refunds, repairs and replacements should be retained.

Suppliers subject to a prescribed code of practice must maintain a copy, train staff on its requirements, and implement internal audit procedures. Contraventions should be self-reported to the Commissioner where appropriate to demonstrate good faith.

Licensed industries (Schedule 2) must ensure that all staff hold current authorisations, that business premises comply with any conditions, and that records required under the relevant Registration Act are kept. Compliance checks under s 88E can be expected; businesses should designate a compliance officer to accompany authorised persons and provide immediate access to documents.

Contracts with consumers should not contain exclusion clauses purporting to negate ACL (WA) rights (s 13 renders them ineffective). Choice-of-law clauses attempting to avoid WA law are void where the proper law would otherwise be Western Australia (s 11(5)).

Publishers and advertisers must verify claims before publication; the defence in s 98 is available only to those without reason to suspect a contravention. Websites, social media and online marketplaces must be monitored for third-party content that could expose the platform operator to accessory liability (s 90).

Businesses facing an investigation should obtain legal advice immediately. There is no privilege against self-incrimination (s 86), but answers cannot be used in most subsequent proceedings. Warrants should be scrutinised for compliance with ss 71–74; defects may render entry unlawful.

To minimise risk of Commissioner-initiated litigation under s 58, businesses should respond promptly and constructively to complaints referred by the Department. Early settlement offers may influence the Commissioner’s assessment of the public interest.

Records of all consumer transactions (including online) should be kept for at least seven years to rebut limitation defences and to respond to requests for itemised bills (ACL (WA) s 101). Systems should flag high-risk transactions (e.g. unsolicited agreements, high-value goods, vulnerable consumers) for additional oversight.

Regular engagement with the relevant advisory committee (where applicable) allows businesses to influence codes and policy before they are prescribed. Subscription to Commissioner newsletters and monitoring of public warnings (s 57) provides early warning of emerging enforcement priorities.

In short, compliance requires both substantive legal knowledge of the ACL (WA) and a proactive relationship with the Commissioner’s office. Businesses that treat the Act as an opportunity to build consumer trust rather than a compliance burden are least likely to attract enforcement action.