The object of the CCA is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.
The CCA prohibits restrictive trade practices such as cartel conduct, contracts, arrangements or understandings that restrict dealings or affect competition, misuse of marker power and exclusive dealing.
The CCA also protects the consumer by banning misleading and deceptive conduct and unconscionable conduct in trade or commerce and by making unfair contract terms in consumer contracts void. The CCA also contains a number of protective provisions such as: provisions banning specific unfair practices in trade or commerce; provisions dealing with consumer transactions for goods or services; provisions on the safety of consumer goods and product related services; and provisions on the liability of manufacturers for goods with safety defects.
Anyone, be it a consumer protection agency, an individual consumer or another corporation, with a genuine interest in a matter, can take the University or a staff member to court for breaching the CCA.
Breaches of the CCA can result in court-imposed sanctions such as fines and monetary penalties, damages, injunctions and ancillary orders. Consequential effects of a breach may include substantial legal costs, adverse publicity and staff down time.
CCA and the University
The CCA has become increasingly relevant to the University, mainly as a result of the growth of competition between universities for local and international students and the University’s growing involvement in commercial, research and consulting activities.
The obligations imposed by the CCA affect almost all aspects of the University’s operations including its interaction with current and prospective students, program/course promotion and research and consultancy services.
Both the University and individual staff can be held liable for a breach of the CCA which results from their acts or omissions, and can be sued by competitors, suppliers, customers or consumers (including students). If the University or its staff breach the CCA, they can also be prosecuted by the Australian Competition and Consumer Commission (ACCC).
It is therefore crucial that all staff understand the legislative requirements and how they may affect their day to day role at the University.
Potential areas of risk exposure
- Providing advice and information regarding admission requirements, courses, teaching arrangements, assessment, academic progress and career opportunities;
- Program/course advertising and promotional material
- Marketing and promotion of the University
- Discussions with competitors or members of competitors with respect to marketing and promotion
- Provision of research and consultancy services (including capability, expertise and delivery)
- Conferral between universities regarding agreements or understandings with respect to research and service engagement with third parties
- Liaison with competitors with respect to the delivery, supply or capacity to supply teaching, research or consultancy outputs
- Contractual dealings and negotiations with students, competitors, consumers and suppliers
- Liaison with other universities, higher education providers or suppliers with respect to fee and pricing structures
- Conferral between universities regarding appropriate program offerings and course syllabuses
- Bidding for tender and discussions with competitors or members of competitors with respect to tenders and tender processing generally