Should Specifically Deterrent or Punitive Remedies be made Available to Victims of Misleading Conduct under the Australian Consumer Law?
AuthorBant, E; Paterson, J
Source TitleTorts Law Journal
AffiliationMelbourne Law School
Document TypeJournal Article
CitationsBant, E. & Paterson, J. (2019). Should Specifically Deterrent or Punitive Remedies be made Available to Victims of Misleading Conduct under the Australian Consumer Law?. Torts Law Journal, 25 (2), pp.99-127
Access StatusOpen Access
ARC Grant codeARC/DP140100767
The ‘smorgasbord of remedies’ available to victims of misleading conduct under the Australian Consumer Law (‘ACL’) and parallel legislation is usually regarded as comprehensive, outstripping the remedies offered at common law for equivalent misconduct. Although the primary aim of the damages and ‘compensation orders’ is to ‘compensate’, or ‘prevent or reduce’ ‘loss or damage’ suffered because of misleading conduct, orders of this kind may have a strong deterrent effect, promoting the protective purposes of the statute. These provisions sit alongside an extensive suite of enforcement provisions designed to deter misleading conduct, including allowing the regulator to seek criminal and civil pecuniary penalties for contraventions of the speciﬁc prohibitions on ‘false or misleading representations’. While this combination might appear to offer complete and effective deterrent measures apt to change commercial misbehaviours, this article argues that the remedial armoury available to achieve the deterrent purpose of the ACL could be made stronger and more effective. In this sphere, the analogous common law torts and equitable doctrines that respond to misleading conduct provide extensive and invaluable remedial templates for regulators and those concerned with law reform, including disgorgement and punitive damages. Drawing on these insights, we argue that such additional remedial options may prove valuable in promoting the consumer protection purposes of the statute. Additionally, they may serve to provide signiﬁcant redress to victims in cases where damages and compensatory orders are inadequate.
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