This chapter engages with the substantive law pertaining to misleading or deceptive conduct. The statutory prohibition on misleading or deceptive conduct first appeared in the now defunct Trade Practices Act 1974 (Cth) (TPA). Section 52 of the TPA provided that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The TPA has now been repealed. In place of the TPA has emerged the Australian Consumer Law (ACL). The ACL now contains the same prohibition on misleading or deceptive conduct. The ACL is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The s 52 TPA equivalent is s 18 of the ACL. Section 18 provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. This chapter looks solely at misleading or deceptive conduct under s 18 of the ACL.

This chapter explores the themes of procedural and substantive fairness in regulating consumer contracts in ASEAN member states. Most member states have regimes that address conduct by traders that impinges upon consumers’ ability to make free and informed decision about the contracts they enter, with prohibitions on misrepresentation and undue pressure. The treatment of unfair contract terms is less even across the region. Equally, in many circumstances the law that exists ‘on the books’ is not backed up by regulatory oversight. Consumers often lack the recourses to pursue claims of unfair conduct or terms and so an active and responsive regulator is essential to the vitality and effectiveness of the consumer protection regime. Nonetheless, it does not seem overly optimistic to suggest a growing awareness of the relevance of consumer protection in a thriving market economy, including prohibitions on substantive unfairness, or the possibility of a more unified approach consistent with the ASEAN way.