Reports were circulating about a proposal of the Commonwealth Government to increase penalties for corporations for misleading and deceptive conduct from $50 million to $100 million. After some research it appeared that there was no formal or definite statement by the Commonwealth in a media release or other publication from the Government. The source of the reports was in an ACCC (Australian Competition and Consumer Commission) media release on 13 March 2026 in relation to petrol and diesel price rises and the actions that the ACCC is taking in relation to fuel companies to ensure that they are open and honest about the reasons for widely varying and rapid increases across the country.
The media release of the ACCC said:
The ACCC will take action for misleading or deceptive conduct about the reason for the steep and rapid increase in prices by individual retailers, or breaches of competition laws.
We welcome government plans to move to increase the maximum penalties for relevant breaches of Australian Consumer Law and the Competition and Consumer Act from $50 million to $100 million and will seek the highest penalties appropriate in any cases we bring to the courts.
Doubling Civil Pecuniary Penalties under the Australian Consumer Law
This has now happened. Act No. 19 of 2026 Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026 has been passed and came into effect on 28 March 2026.
As the name of the Act indicates, potential penalties under the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Commonwealth) (ACL) have been doubled.
The civil pecuniary penalty provisions in section 224 of the ACL allow a court to impose civil penalties up to the amounts specified in section 224(3) in relation to a range of offences under the ACL, particularly in relation to:
- Part 2-2 (about unconscionable conduct)
- Section 23(2A) or (2C) (unfair terms in standard form consumer or small business contracts)
- Part 3-1 (unfair practices including false or misleading representations about goods or services or the sale of land).
Civil penalties can be applied if a person, including a corporation, has contravened a provision of the ACL, or has attempted to contravene such provision or aided, abetted, counselled or procured a person to contravene such a provision, or induced or attempted to induce a person to contravene such a provision or has conspired to contravene such provision or has in any way directly or indirectly knowingly been concerned in or a party to the contravention (Section 224(1)(b).
The Penalty Limits
Prior to the amendment, the maximum amount of the civil penalties that could be ordered for offences under Part 2-2, Section 23(2A) or (2C) or Part 3-1 of the ACL was $2,500,000 for individuals and for a body corporate the greater of the amounts specified in subsection 224(3A) that is:
- $50 million;
- 3 x the value of benefit that the body corporate (and any related body corporate) has obtained directly or indirectly from the act or omission;
- where a court cannot determine the value of the benefit – 30% of the body corporate’s adjusted turnover during the breach turnover period for the act or omission.
The $50 million amount has been increased to $100 million. This is the only change. The other penalty limits remain the same.
The penalties, and the applicable maximum amounts, apply for each act or omission for which penalties may be imposed (S.224(3)). This means that each contravention, such as each item of packaging which contains a misrepresentation, can attract a penalty. Accordingly, where there are a number of breaches of the ACL, which is commonly the case, the potential penalties are very substantial. This would not seem to indicate a need to increase the maximum amounts but the Government obviously has a different view.
Some of the Cases
Courts do impose substantial penalties under Section 224 of the ACL. Some cases and the penalties that have been imposed are:
- ACCC v Google LLC (No 2) [2021] FCA 367 $60 million
- ACCC v Trivago N.V. (No 3) [2022] FCA 417 $40 4.7 million
- ACCC v Uber B.V. [2022] FCA 475 $21 million
- ACCC v Apple Pty Ltd [2018] FCA 953 $9 million
- ACCC v Valve Corporation (No 3) [2016] FCA 196 $3 million
- ACCC v TPG Internet Pty Ltd [2013] FCA 1107 $2 million (varied on appeal)
- ACCC v Singtel Optus Pty Ltd [2012] FCA 14 $3 .61 million
- ACCC v Telstra Corporation Ltd [2021] FCA 502 $50 million
- ACCC v Volkswagen AG (No 3) [2019] FCA 2166 $125 million
- ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 $10 million.
These cases all involve companies at the big end of town, but smaller companies may also be liable for very substantial penalties for offences against the ACL.
What Conduct Can Constitute an Offence?
The ACCC media release mentioned above and some commentaries refer to the potential increase in the penalties for “misleading or deceptive conduct”. This may itself be somewhat misleading as the primary provision relating to misleading and deceptive conduct in the ACL is section 18 (1) which reads:
A person must not in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
A contravention of Section 18 however is not an offence, although it may give rise to civil liability to other persons affected. Section 18 is not listed in section 224 as one of the sections for which breaches may give rise to civil pecuniary penalties.
To come within the civil pecuniary penalty regime in section 224 a breach of the ACL must be in relation to the provisions of the ACL that are specified in Section 224. These include contraventions of Section 29 relating to goods or services and Section 30 relating to sale of land and these sections prohibit a person in trade or commerce making a false or misleading representation (rather than engaging in misleading or deceptive conduct).
In relation to goods or services, the types of representation which may be false or misleading specified in Section 29 (1) is a representation:
- that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use
- that services are of a particular standard, quality, value or grade
- that goods are new
- that a particular person has agreed to acquire goods or services
- that purports to be a testimonial by a person
- concerning a testimonial or that purports to be a testimonial relating to goods or services
- that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits
- that the person making the representation has a sponsorship approval or affiliation
- as to the price of goods or services
- as to the availability of facilities for the repair of goods or of spare parts for goods
- concerning the place of origin of goods
- concerning the need for any goods or services
- concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under the ACL)
- concerning a requirement to pay for contractual rights that are equivalent to statutory rights under the laws of the Commonwealth or a State or territory.
In relation to sales or a grant of interests in land, the types of representation which may be false or misleading that are specified in section 30(1) are representations that:
- the person making the representation has a sponsorship, approval or affiliation
- concerns the nature of the interest in the land
- concerns the price payable for the land
- concerns the location of the land
- concerns the characteristics of the land
- concerns the use to which the land is capable or may lawfully be put
- concerns the existence or availability of facilities associated with the land.
Offences that may incur Penalties
Although the general and wider provisions of section 18 of the ACL relating to misleading or deceptive conduct will not give rise to any civil pecuniary penalties in the event of a breach, the categories of representations which may be false or misleading under sections 29 and 30 are very wide and often conduct which breaches section 18 will also fall within one of the headings in sections 29 or 30 and, potentially, lead to the commission of an offence and the imposition of penalties.
Businesses should also keep in mind that as well as offences relating to false and misleading representations, the offences that may give rise to substantial penalties under the ACL include contraventions relating to unconscionable conduct (sections 20 – 22A), unfair terms in standard consumer or small business contracts (sections 23 – 28) and specific unfair practices or misleading conduct in sections 31 – 38. Penalties may also be applied for offences relating to cartel conduct and restrictive trade practices (misuse of market power, exclusive dealing) and failure to comply with the new mandatory merger regime.
Precautionary Measures
Companies and other traders should ensure as far as possible that breaches of the ACL do not occur and should have, and enforce, appropriate policies and procedures to prevent the types of conduct or representations that may lead to breaches of the ACL and have arrangements for training of staff for these purposes. Businesses should also review their business documents to ensure that breaches of the ACL that are offences that may give rise to substantial penalties do not occur.
Companies and other trading entities may also wish to consider appropriate group structures so that the impact of inadvertent breaches of the ACL which may give rise to very substantial penalties which could impose severe hardship on the business and perhaps threaten ability of the business to continue may be contained.
DW Fox Tucker Lawyers are happy to discuss any of these issues and can provide assistance to organisations looking to safeguard their businesses.
