The Australian Government has outlawed price gouging for some essential goods until 18 June 2020 under a new Biosecurity law. Here is what you need to know.
A new Biosecurity Law prohibits a person during the COVID-19 biosecurity emergency period from selling or offering for sale an “essential” good at more than 120% of the value that the person bought the goods. This kind of conduct is also known as “disaster profiteering”.
An “essential good” is defined as:
At the time of writing, the ‘COVID-19 biosecurity emergency period’ is declared until 18 June 2020. The Governor-General may extend the emergency period as required to combat the COVID-19 outbreak. The Biosecurity Law expires in 2030.
Price gouging is not illegal per se under Australian law. However, incidental conduct may be caught by Australian Consumer Law (ACL) provisions, such as misleading or deceptive conduct, false representations or unconscionable conduct.
Short answer: significant fines, prison time, or both.
Under the Biosecurity Law, you must surrender all the price gouged “essential goods” if you receive a breach notification from law enforcement.
Penalties for not complying are set out in the Biosecurity Act and include:
The ACCC’s COVID-19 taskforce gives guidance to consumers and businesses about their COVID-19 rights and responsibilities. It is also contacting major platforms to take down advertisements for price-gouged COVID-19 related products.
Platforms, such as eBay, already have policies in place to combat such conduct, which includes goods such as toilet paper, baby goods including formula, wipes and nappies, and female sanitary items, as well as “essential goods” under the Biosecurity Law. Under eBay’s terms, price gouging listings will be removed, and accounts may be suspended.
The Biosecurity Law may be a precursor to a more permanent response to price gouging in declared emergencies. For example, certain States in America have price gouging laws that apply during ‘severe weather event emergencies’, such as hurricanes, post-storm clean-up or repairs. Price gouging conduct may also be caught under trade practices laws for unfair or deceptive trade practices.
It remains to be seen whether the new Biosecurity Law will end in June 2020 or be extended to apply to other emergency periods like similar laws do overseas, and of course whether the mandated goods will be limited to disposable face marks and hand sanitiser as in the current law or take a broader approach like the eBay terms to include other consumer goods.
For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.
 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Essential Goods) Determination 2020 (Cth).
 Biosecurity Act 2015 (Cth).
 See for example, Connecticut Unfair Trade Practices Act (CUPTA).
Michael Owens, Partner
Kelly Marshall, Director