ACCC Section 28B: Unfair Trading Practices

Section 28B is a proposed amendment to the Australian Consumer Law (ACL), the federal statute that governs how businesses must treat consumers in Australia. The amendment — which the government has indicated is expected to pass in 2026 — would introduce a standalone prohibition on “unfair trading practices”, a category of conduct that causes consumer harm but which does not always fit neatly within the existing prohibitions on misleading conduct (s18) or false representations (s29).

The ACCC has advocated for an unfair trading practices prohibition for several years, citing a gap in consumer protections for conduct that is manipulative or exploitative without necessarily being misleading. The UK, EU, and US Federal Trade Commission have had equivalent provisions for some time; the s28B proposal brings Australia into alignment with those frameworks.

The draft bill is public. The ACCC has published guidance on what the amendment is intended to address and how the regulator intends to use the new powers. This guide summarises the current state of the proposal and its practical implications — but because the law is not yet in force, you should check the ACCC website for the current status before relying on these provisions.

The draft bill identifies five broad categories of conduct that would constitute an unfair trading practice. Each is described in general terms, and the ACCC would have discretion in applying them to specific facts. The five categories are:

• False urgency and artificial scarcity: Creating a false impression that a consumer must act immediately — or that an offer is limited in a way that is not genuinely the case — in order to pressure them into a decision they would not otherwise make at that speed. This includes countdown timers that reset, “only X left” claims that are fabricated, and manufactured deadlines that serve no legitimate business purpose.
• Hidden fees and pricing opacity: Structuring pricing in a way that conceals the true total cost until late in the purchase or sign-up process. This goes beyond the existing false representations prohibition — it targets the design of pricing disclosures that are technically accurate but structured to obscure the full cost from consumers at the point of decision.
• Exploiting vulnerability: Taking advantage of a consumer's known or reasonably apparent vulnerability — including emotional distress, physical impairment, language barriers, or situational vulnerability (such as being in the immediate aftermath of a disaster) — to obtain consent or agreement that the consumer would not give in ordinary circumstances. The ACCC has specifically flagged post-disaster contexts as a high-risk setting for this category.
• Obstruction of cancellation and switching: Designing processes that make it unreasonably difficult for consumers to cancel a subscription, end a service, or switch providers. The prohibition targets systematic friction — where the difficulty of cancelling is a deliberate design choice rather than an incidental complexity.
• Manipulative design and dark patterns: Using interface or process design to steer consumers toward choices they would not make if presented with a neutral presentation of options. This includes pre-ticked consent boxes, confusingly worded opt-out flows, visual emphasis that misrepresents the relative merits of options, and similar techniques that manipulate decision-making without technically stating anything false.

The categories overlap in some fact patterns — for example, a post-disaster sign-up process with a countdown timer and a pre-ticked insurance waiver could engage the urgency, vulnerability, and dark pattern categories simultaneously.

The existing consumer protection provisions in the ACL — particularly s18 (misleading or deceptive conduct) and s29 (false representations) — have been the main tools for addressing harmful business conduct. Understanding where s28B fits requires knowing what s18 and s29 do not cover well.

• Section 18 — Misleading or deceptive conduct: Prohibits conduct that is misleading or deceptive, or likely to mislead or deceive. This is a broad and powerful provision, but it requires that the conduct create a false impression about something. Manipulative design or manufactured urgency can harm consumers without creating a technically false impression — and that is the gap s28B is intended to fill.
• Section 29 — False representations: Targets specific categories of false or misleading statements about goods or services, prices, conditions of supply, and similar matters. It requires an identifiable false representation. A countdown timer that is technically not a “representation” (because it is not a statement of fact) may not fall cleanly within s29, even if it functions to deceive consumers about urgency.
• Section 28B — Unfair trading practices: Targets the conduct itself — the manipulation, the exploitation of vulnerability, the deliberate obstruction — regardless of whether any specific false statement was made. This is a significant expansion. It allows the ACCC to address the architecture of commercial processes, not just individual statements within them.

In practice, egregious conduct will often attract both s18 and s28B claims. The significance of s28B is in the cases where existing provisions fall short — where the harm is real but the deception is structural rather than representational.

The insurance claims context is one of the most directly relevant areas for the new unfair trading practices prohibition. Post-disaster claimants are often in circumstances that engage multiple categories of protected vulnerability, and claims handling processes have historically exhibited some of the conduct patterns that s28B is designed to address.

• Cash settlement pressure: Offering a cash settlement in the immediate aftermath of a disaster, combined with manufactured urgency about the offer expiring, may engage both the urgency and vulnerability categories. Insurers have legitimate reasons to offer cash settlements — but doing so in a way that exploits a claimant's distress and time pressure to secure acceptance of an inadequate amount is the kind of conduct s28B targets.
• Scope suppression in managed repair networks: Where the design of a managed repair process makes it unreasonably difficult for claimants to understand what they are entitled to, or to exercise their right to seek independent assessment, the obstruction of switching and hidden terms categories may be relevant.
• Vulnerable claimant handling: Part 9 of the General Insurance Code of Practice already imposes obligations on insurers in relation to vulnerable customers. Section 28B, if enacted, would create a parallel statutory obligation — and would bring the ACCC (as well as AFCA) into the picture as a potential regulator of this conduct.
• Post-disaster contractor solicitation: Third parties — not just insurers — can be subject to ACL obligations. Storm chasers and other contractors who use post-disaster door-knocking to obtain work through high-pressure techniques, artificial urgency, or exploitation of distressed homeowners would also fall within the scope of s28B conduct.

Section 28B does not give individual claimants a private right of action in addition to what already exists under s18 — the ACCC is the primary enforcement body. However, ACCC enforcement action typically results in improved industry conduct, and AFCA is separately able to consider fairness in its dispute resolution process under its own rules.

If you believe you have experienced conduct that constitutes unfair trading — by an insurer, a contractor, or any other business — you can report it to the ACCC. The ACCC does not act as an advocate for individual complainants, but complaints inform the ACCC's enforcement priorities and can contribute to investigations into systemic conduct.

• Online report: Use the ACCC's online consumer complaint form at accc.gov.au/report. Describe the conduct in specific terms: what happened, when it happened, which category of prohibited conduct you believe it falls within, and what evidence you have.
• Document the conduct: Before lodging a complaint, document everything — screenshots, recordings (subject to applicable state recording laws), written correspondence, and a written account of verbal interactions. The ACCC needs specifics, not general impressions.
• Complaints don't generate individual remedies: ACCC complaints are regulatory, not compensatory. For individual remedies — a refund, revised settlement, or compensation — your pathways are AFCA (for insurance disputes), the relevant state small claims tribunal, or a solicitor.
• State fair trading offices: State consumer protection agencies (NSW Fair Trading, Consumer Affairs Victoria, etc.) also have jurisdiction over ACL matters and may act more quickly on local matters. They can be lodged with simultaneously.

This guide is informational and does not constitute legal advice. The s28B amendment has not yet passed as at the date of publication. Check the ACCC website and legislation.gov.au for current status. If you believe you have been harmed by a business's conduct and need individual assistance, consult a solicitor or a free community legal service.