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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Competition and Consumer Amendment (Misleading Representations about
Broadband Speeds) Bill 2018
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Andrew Wilkie MP
Competition and Consumer Amendment (Misleading Representations about
Broadband Speeds) Bill 2018
OUTLINE
This bill seeks to address the problem of retailers making misleading representations
about the speed of a broadband service, particularly the practice of advertising speeds or
quality that are not achievable during most periods or that are far beyond what the average
user could expect to experience. Such representations may technically be correct and thus
may not be in breach of current consumer law, but they are nonetheless misleading for
consumers and can cause substantial loss and/or damage.
The bill seeks to amend the Competition and Consumer Act 2010 to ensure that, when a
representation is made about the speed, quality or price of a broadband service in trade or
commerce, that representation also includes information about typical (not maximum)
speeds, typical busy periods and what impact this can have on average speeds, and any
other factors that might affect the performance of the service. This transparent advertising
of speeds is consistent with guidance to the industry issued by the Australian Competition
& Consumer Commission in its publication Broadband Speed Clams: Industry guidance
(August 2017).
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short title
1. This clause is a formal provision and specifies the short title of the bill as the
Competition and Consumer Amendment (Misleading Representations about
Broadband Speeds) Bill 2018.
Clause 2: Commencement
2. This clause provides for the commencement of the Act on the day after it receives
Royal Assent. The Act will not apply retrospectively and will only apply to
representations made after its commencement.
Clause 3: Schedules
3. This clause establishes that, as the intent of the bill is to be realised through
amendments to another Act, the schedules of this bill will amend that Act
accordingly.
Schedule 1: Amendments
Competition and Consumer Act 2010
Item 1: After section 37 of schedule 2
1. Item 1 inserts a section 37A into schedule 2 of the Competition and Consumer Act
2010 (the Act).
2. The new subsection 37A(1) stipulates that a person must not, in trade or commerce
and in connection with the supply or possible supply of a broadband service, make
a representation about the quality, value, grade or price of the service without
including the information outlined in new subsection 37A(2).
3. Subsection 37A(2) sets out the required information to be information about: typical
(not maximum) speeds that the average customer can expect to receive, typical
busy periods and what impact this has on average speeds, and other factors that
might be reasonably expected to affect performance.
4. Subsection 37A(3) specifies that this section does not limit the operation of any
other provision of this division (such as section 37, which deals with misleading
representations more broadly).
Item 2: After section 159 of schedule 2
5. Item 2 insert a section 159A into the Act.
6. Subsection 159A(1) creates an offence for making a representation about a
broadband service that does not include the information outlined in subsection
159A(2), which is the same information outlined in 37A(2).
7. There is a pecuniary penalty for contraventions of this section of $1,100,000 for a
body corporate and $220,000 for all other persons. This is consistent with other
pecuniary penalties in the Act.
8. Subsection 159A(2) specifies that 159A(1) is an offence of strict liability. Strict
liability is appropriate because it is consistent with other similar provisions in this
part of the Act. Strict liability is also appropriate in this context because of the nature
of the loss or damage that may be suffered with a misleading representation is
made.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Competition and Consumer Amendment (Misleading Representations about
Broadband Speeds) Bill 2018
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
The bill seeks to amend the Competition and Consumer Act 2010 to ensure that, when a
representation is made about the speed, quality or price of a broadband service in trade or
commerce, that representation also includes information about typical (not maximum)
speeds, typical busy periods and what impact this can have on average speeds, and any
other factors that might affect the performance of the service. This transparent advertising
of speeds is consistent with guidance to the industry issued by the Australian Competition
& Consumer Commission in its publication Broadband Speed Clams: Industry guidance
(August 2017).
Human rights implications
This bill does not engage any of the applicable rights or freedoms.
Conclusion
This bill is compatible with human rights because it does not raise any human rights
issues.
Andrew Wilkie MP