‘Misleading and Deceptive Conduct Under Australian Consumer Law’
In Queensland, the protection of consumers against misleading and deceptive conduct is embedded in both state and national consumer law. Whether you’re a consumer or a trader, it’s important to understand your rights and obligations so that fair and lawful dealings are ensured.
Relevant Laws
Misleading and deceptive conduct in Queensland is primarily governed by the Australian Consumer Law (ACL), which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The ACL applies nationally and is administered at the state level by the Queensland Office of Fair Trading (OFT).
The key provision that relates to Misleading and Deceptive Conduct is section 18 of the ACL, which states:
“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
This piece of legislation applies to individuals and businesses engaging in commercial transactions and, as mentioned above, is designed to protect consumers from false or misleading representations.
How It Applies
While the ACL is federal legislation, each state and territory—including Queensland—has adopted it through their own laws. In Queensland, this occurs through the Fair Trading Act 1989 (Qld), which incorporates the ACL as law of the state.
What Constitutes Misleading or Deceptive Conduct?
Misleading and deceptive conduct includes a broad range of conduct. The conduct may involve:
- Making false statements about goods or services (e.g. origin, quality, price)
- Omitting key facts that would affect a consumer’s decision
- Advertising that creates a false impression
- Misleading online descriptions or images
- Silence or failure to correct a known misunderstanding
Importantly, it is not necessary to prove that the person intended to mislead. It is sufficient that the conduct was likely to mislead a reasonable person.
Examples in a Queensland Context
Here are some practical examples of misleading or deceptive conduct under Queensland consumer law:
- A car dealer in Brisbane advertises a used vehicle as having “never been in an accident” when it had previously been written off and repaired.
- A Gold Coast property developer promotes a residential estate as “fully approved and ready to build”, despite knowing that significant council approvals are still pending.
- An online store based in Cairns claims to sell “locally made skincare products” when the items are actually manufactured overseas and are merely packaged locally.
Consequences and Remedies
Businesses found to have engaged in misleading or deceptive conduct may face serious consequences, including:
- Civil penalties including fines
- Orders for compensation or refunds
- Injunctions (preventing further misleading conduct)
- Corrective advertising
- Reputational harm
Consumers affected by such conduct in Queensland can:
- Lodge a complaint with the Queensland Office of Fair Trading
- Seek legal advice to pursue damages or other remedies
- Apply to the Queensland Civil and Administrative Tribunal (QCAT) for minor consumer disputes (up to $25,000)
Defending Against Claims
Businesses accused of misleading conduct may try to argue:
- The conduct was not likely to mislead the average consumer
- The consumer relied on their own investigation
- The misleading element was not material to the transaction
Tips for Compliance in Queensland
For businesses operating in Queensland, it is advised that they:
- Review marketing materials and sales scripts regularly
- Train staff on consumer rights and ethical selling practices
- Keep accurate records of transactions and representations
- Be cautious in making statements about future matters (e.g. performance, results)
And consumers should:
- Ask for written representations or guarantees
- Keep receipts, ads, and written correspondence
- Report concerns to the Queensland OFT promptly.
Conclusion
Misleading and deceptive conduct is not just a legal risk— but is also conduct that undermines trust in Queensland’s marketplace. The law in this area is clear and firmly enforced, offering strong protections for consumers while holding businesses accountable for the accuracy and honesty of certain claims. If you have experienced an issue that relates to misleading and deceptive conduct and would like to know where you stand, contact the experienced team at Miller Sockhill Lawyers on 07 5444 4750.