Misleading and deceptive conduct 

Alongside the consumer guarantees, the Australian Consumer Law contains a much more general norm: a prohibition on misleading or deceptive conduct in trade or commerce. Where the guarantees regime targets specific failures in specific transactions, this prohibition is a broad, open-textured standard that reaches almost any communication or behaviour with a trading character, and it is one of the most heavily litigated provisions in Australian commercial law.

The general prohibition

The ACL prohibits a person from engaging, in trade or commerce, in conduct that is misleading or deceptive, or likely to mislead or deceive. Each element matters. The conduct must have a trading or commercial character — private, non-commercial conduct falls outside the norm even if it happens to mislead someone. The prohibition is not confined to conduct that actually deceives anyone: conduct that is merely likely to mislead or deceive is caught, so a claim can succeed without any actual consumer having been misled in fact. And the prohibition is not limited to statements about goods or services bought by consumers — it applies broadly across trade and commerce, including business-to-business dealings, negotiations, advertising and online conduct.

Not a fault-based norm

The prohibition has a strict-liability flavour: a person can contravene it without intending to mislead anyone, without acting dishonestly, and without having been careless. Liability turns on the effect, or likely effect, of the conduct, not on the state of mind behind it. This is a significant departure from causes of action like deceit, which require proof of a dishonest state of mind, and it is one reason the prohibition has become the default vehicle for so many commercial disputes: a plaintiff does not need to prove what the defendant knew or intended, only that the conduct conveyed a false or misleading impression.

Even a literally true statement can contravene the prohibition if the overall impression it conveys is false or misleading — for example, through selective disclosure, ambiguous framing, or the omission of a qualification a reasonable person in the audience would need. Conversely, silence can amount to misleading conduct in circumstances where the relevant audience would reasonably expect disclosure of a particular matter and none is given.

Identifying the relevant audience

Because the test is about likely effect rather than actual belief, courts approach it by identifying the class of persons likely to be exposed to the conduct — the ordinary or reasonable members of that class, or, where the conduct targets a group with particular characteristics or vulnerabilities, a hypothetical ordinary member of that narrower group. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191¹ is the source of this ordinary- reasonable-member standard, rejecting a test pitched at the most careless possible consumer. The conduct is then assessed as a whole, in its full context, to ask whether it conveys a misleading representation to that audience. Context matters: a disclaimer, a qualification, or surrounding circumstances may prevent conduct from being misleading, but a disclaimer does not automatically cure an otherwise misleading overall impression, particularly where the disclaimer is inconspicuous relative to the misleading message itself. ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640² is the High Court's application of that point: a prominently advertised $29.99 monthly price for an ADSL2+ service, qualified much less prominently by a requirement to bundle it with a $30 home telephone service, was misleading because the dominant message of the advertisements governed and the fine print did not neutralise it.

Breadth of application

Because the prohibition is expressed at a high level of generality rather than as a list of specific prohibited practices, it extends to conduct well beyond formal advertising: pre-contractual representations, conduct during negotiations, promotional and marketing material, packaging and labelling, and conduct conducted online or through intermediaries can all fall within it. This breadth is deliberate — the provision is designed to function as a general safety net for trading conduct that damages the informed functioning of markets, rather than to catch only a defined category of deceptive practices.

Remedies

A contravention can attract a wide range of remedies at a conceptual level, reflecting the provision's role as a general norm rather than a narrow prohibition. These include damages for loss caused by the conduct (which requires the plaintiff to establish that the conduct actually caused the loss claimed), injunctions restraining continuing or future conduct, corrective disclosure or advertising orders, declarations, and other orders a court considers appropriate to compensate loss or to prevent or reduce harm flowing from the contravention. The range of available orders reflects the practical reality that misleading conduct can cause many different kinds of harm, from a single consumer's loss to market-wide distortion.

Applying this in a problem question

1. Ask whether the conduct occurred in trade or commerce.
2. Identify precisely what representation or overall impression the conduct conveyed.
3. Define the relevant class or audience and assess the conduct objectively from that viewpoint.
4. Remember no intent to mislead is required — ask whether the conduct was misleading, deceptive, or merely likely to mislead or deceive.
5. Consider whether silence, context or a disclaimer affects the analysis, without assuming a disclaimer automatically cures the problem.
6. Identify the remedy sought and, for damages, check causation between the conduct and the loss claimed.