Selling on Facebook Marketplace and your legal obligations as an Australian seller

Facebook Marketplace is one of the easiest ways to sell goods in Australia. You photograph an item, write a description, and within days a buyer is at your door. For a genuine garage sale, that is the end of the story. But when you list items regularly with the aim of making money, Australian law starts to treat you as a business, and a set of obligations attaches that most casual sellers never think about.

Those obligations sit across several areas. You may need an Australian Business Number (ABN) and GST registration. Your listings must not mislead buyers, and you must honour the consumer guarantees in the Australian Consumer Law (ACL). You may owe duties under the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth). And you must not sell goods that are unsafe, banned, or counterfeit. This guide sets out when those obligations apply, what each duty requires, and what happens if you get it wrong.

When Marketplace selling becomes a business

The first question is whether you are carrying on a business at all. Under the ABN system, you are entitled to an ABN if you are carrying on or starting an enterprise in Australia, and the Australian Business Register treats that as the gateway to most business registrations. Whether your Marketplace activity amounts to an enterprise is a question of fact. The ATO weighs factors such as whether you intend to make a profit, whether the activity is repeated and regular rather than one-off, and whether it is carried on in a commercial manner, for example by buying stock, advertising, and keeping records.

There is no single dollar figure that flips you from hobbyist to business overnight. Selling a handful of household items twice a year is almost certainly not a business. Listing new or refurbished stock every week with the intention of building a revenue stream almost certainly is. The practical test is honest: would a reasonable observer say you are running a business?

Once you cross that line, several thresholds and triggers decide which specific obligations apply to you:

• ABN: you are entitled to register for an ABN when you are carrying on an enterprise in Australia, and most business registrations flow from it.
• GST: you must register for GST once your GST turnover reaches AUD 75,000 or more in any 12-month period, and you have 21 days from the day you become required to register to do so. You can also register voluntarily.
• Business name: if you trade under a name other than your own personal name, you must register that name with ASIC.
• Privacy Act: the Act applies to organisations, but most small businesses, meaning those with annual turnover of AUD 3 million or less, are exempt. There are important exceptions, covered below.
• Australian Consumer Law: the ACL applies whenever you supply goods in trade or commerce to a consumer, and a consumer includes anyone who buys goods priced at AUD 100,000 or less, or goods of a kind ordinarily acquired for personal, domestic or household use, under s 3 of the ACL.

Registering: ABN, GST, business name and structure

If you are carrying on an enterprise, your first practical step is to get an ABN. It is free to apply for through the Australian Business Register, and you will need it to register for GST, to issue tax invoices, and often for buyers and suppliers to deal with you. Applying for an ABN when you are not entitled to one is not a harmless formality: the ABN system warns that you may face prosecution or criminal charges if you register for an ABN and claim GST refunds when you are not entitled to them.

GST is where Marketplace sellers most often get caught. If your GST turnover is AUD 75,000 or more in a 12-month period, you must register, and you must do so within 21 days of becoming required to register. Once registered, you add 10% GST to your sales, claim credits for GST on your business purchases, and lodge activity statements. The ATO's GST registration guidance sets out the mechanics. Failing to register when required can mean penalties on top of the GST you should have remitted, so if your Marketplace income is trending toward the threshold, track it monthly rather than discovering the problem at tax time.

Business names are a separate registration. If you sell under a brand name rather than your own name, you must register the business name with ASIC, and it is an offence to trade under an unregistered business name. Registration is national and costs a modest annual fee, so there is little reason to run the risk.

Finally, think about structure. Most Marketplace sellers start as sole traders because there is no paperwork beyond the ABN. That is fine while you are small, but as a sole trader you are personally liable for debts and claims arising from the business. A company is a separate legal entity and can shield your personal assets, at the cost of ASIC fees, director obligations and more administration. If you are selling high-value or higher-risk goods, or scaling quickly, a conversation about structure is worth having before problems arise rather than after.

Selling honestly: misleading conduct and pricing

The ACL's core honesty rule is s 18, which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. For a Marketplace seller, that covers everything in your listing: your photos, your description, your price, and your messages to interested buyers. Calling a scratched second-hand phone "like new" or describing a replica as "genuine" are the kind of claims that mislead.

Section 29 of the ACL then targets specific false or misleading representations, including about the standard, quality or value of goods, whether goods are new, their previous use or history, their place of origin, and the price. A Marketplace listing that misstates an item's condition or age will often breach both sections.

Pricing has its own rule. Under s 48 of the ACL, when you promote or supply goods of a kind ordinarily acquired for personal, domestic or household use, you must state the single price, meaning the minimum total cost, as a single figure and in a prominent way. If you charge extra for postage or handling, that component must still be reflected in the single price you display. The civil obligation in s 48 has a corresponding offence in s 166.

The consequences differ between the two sections. A breach of s 18 is not a pecuniary penalty provision, but courts can grant injunctions, award damages to buyers who suffered loss, and make compensation orders. A breach of s 29, by contrast, carries pecuniary penalties under s 224 of the Competition and Consumer Act 2010 (Cth). For a body corporate the maximum is the greater of AUD 100 million, three times the benefit obtained from the contravention, or 30% of adjusted turnover during the breach period. For an individual, the maximum is AUD 2.5 million per contravention.

Honouring the consumer guarantees

When you sell goods to a consumer in trade or commerce, the ACL implies a set of consumer guarantees that you cannot contract out of. The central one is s 54: goods must be of acceptable quality, meaning they are fit for their common purposes, acceptable in appearance and finish, free from defects, safe, and durable, as a reasonable consumer would regard as acceptable given the state and condition of the goods.

Crucially, that standard is assessed having regard to the nature and price of the goods. That is what makes second-hand selling workable: a AUD 40 used kettle from Marketplace is not expected to perform like a new AUD 200 kettle. Age, wear, and price all factor into what "acceptable quality" means for a particular item. What matters is that you do not misrepresent the condition you are actually selling.

There is no fixed two-year rule or other standard expiry for the guarantees. If goods fail the acceptable quality standard, the buyer's remedies under s 259 depend on whether the failure is major, which s 260 defines by reference to whether a reasonable consumer would not have bought the goods had they known the full extent of the failure, and whether the goods are substantially unfit for their common purpose. For a major failure, the buyer can reject the goods and choose a refund or replacement, or recover damages. For a minor failure, you get the chance to remedy it within a reasonable time.

You cannot contract around any of this. Under s 64 of the ACL, any term that purports to exclude, restrict or modify the guarantees is void. That means a listing that says "sold as is, no refunds" or "no returns accepted" does not displace the guarantees. If you are selling as a business, the guarantees apply, and a "no refunds" line simply misleads buyers about their rights, which is itself a problem under s 29(1)(m). Set a clear returns position that reflects the ACL rather than one that contradicts it.

Product safety and prohibited items

The ACL also imposes duties about the safety of consumer goods. Goods that are subject to a mandatory safety standard or an information standard must comply with it, goods that are banned cannot be supplied at all, and suppliers have obligations around recalls of unsafe goods. The safety provisions in Part 3-3 of the ACL carry the same penalty scale as other unfair-practice contraventions under s 224, so this is not a corner of the law you can ignore because you sell second-hand.

The practical risk areas for Marketplace sellers are second-hand electrical goods, children's products, cosmetics, and anything refurbished. A second-hand appliance with a damaged cord, a child's toy that fails current safety standards, or cosmetics that do not meet labelling requirements are all examples where a quick profit can turn into a safety incident. Before listing, check whether the category of goods is subject to a mandatory standard or ban, and satisfy yourself the item complies. If a product you have sold is later recalled, act promptly: contact buyers, explain the issue, and arrange a remedy. Fast and transparent handling of a recall is both a legal and a reputational imperative.

Privacy and marketing: the rules that bite small sellers

The Privacy Act 1988 (Cth) regulates how organisations handle personal information through the Australian Privacy Principles (APPs). The good news for most Marketplace sellers is that small businesses, defined in s 6D as businesses with annual turnover of AUD 3 million or less, are generally exempt from the Act. The OAIC's small business guidance makes clear, however, that the exemption does not apply to every small business. You are covered regardless of turnover if you provide health services, trade in personal information, are a contracted service provider for a Commonwealth contract, operate a credit reporting business, or are a reporting entity under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), among other categories. You can also choose to opt in.

If you are covered, you must comply with the APPs, which govern collection, use, disclosure, storage and security of personal information. Even if you are exempt, collecting buyer names, addresses and phone numbers in Marketplace messages and spreadsheets is handling personal information, and the OAIC recommends you protect it as a matter of best practice. Keep only what you need for fulfilment, store it securely, and do not share buyers' details in public comments.

Separate from the Privacy Act, the Spam Act 2003 (Cth) applies to every business, however small. If you send commercial electronic messages, meaning emails, SMS or messages that advertise or promote goods or services, the ACMA's spam rules require you to have the recipient's consent, identify yourself as the sender, and include a functional unsubscribe facility that you honour. Consent is the step most small sellers miss. Adding a buyer to your mailing list because they bought a lamp from you is not consent to receive ongoing marketing. Ask first, or keep your messages to transactional matters.

Intellectual property: sell only what you own

Selling counterfeit goods, or goods that infringe someone's trade mark or copyright, exposes you to platform takedowns, demands from rights holders, and legal action. If you are reselling branded goods, satisfy yourself they are genuine before listing, and keep proof of purchase or authenticity. The same logic applies to products you have made or imported: if you do not have the right to sell them, do not list them.

As your Marketplace operation grows, consider protecting your own brand by registering a trade mark for your business name or logo with IP Australia. A registered trade mark is what lets you stop others from trading off your reputation, and it is far easier to secure early, before your name is taken or your market is established.

The regulators and what they can do

Non-compliance is enforced by different regulators depending on the area. The ACCC enforces the ACL and can investigate, issue infringement notices, accept court-enforceable undertakings, and take proceedings seeking penalties, injunctions, damages and other orders. The OAIC investigates privacy complaints and can make determinations against organisations the Privacy Act covers. The ACMA enforces the spam rules, and the ATO administers GST and ABN obligations with penalties and interest for failures to register and report. None of these regulators needs a large target to act: a single misleading listing, one unsolicited marketing email, or a missed GST registration can each trigger consequences out of proportion to the small sums involved.

A compliance checklist for Marketplace sellers

Ticking these off before each listing keeps you on the right side of the obligations above:

• Confirm your status: assess honestly whether you are carrying on an enterprise, and if you are, register for an ABN before you trade further.
• Track your turnover: if your sales approach AUD 75,000 in 12 months, register for GST within 21 days and start charging it.
• Register your name: if you trade under a brand, register the business name with ASIC.
• Describe accurately: state condition, age, provenance and defects honestly, and photograph what you are actually selling.
• Show the total price: display a single price that includes postage and handling for goods ordinarily acquired for personal or household use.
• Know your returns position: honour the consumer guarantees, offer remedies for major failures, and never advertise "no refunds" in a way that contradicts the ACL.
• Check product safety: confirm the item is not banned, complies with any mandatory standard, and is safe for its intended use before listing.
• Handle data carefully: collect only what fulfilment requires, store it securely, and get consent before sending marketing messages with a working unsubscribe link.
• Keep records: save listing text, photos, invoices, proof of postage and buyer correspondence. They are your best defence if a dispute arises.
• Verify legitimacy: only sell goods you are entitled to sell, and keep evidence of authenticity for branded stock.

Where a lawyer actually helps

None of this requires a lawyer for the day-to-day running of a small Marketplace operation, but there are moments when advice pays for itself. Choosing between sole trader and company structure, and drafting the accompanying documents, is the classic example. A lawyer can also review the short policies you paste into listings, such as your returns position, to make sure they align with the ACL rather than contradict it. If a buyer escalates a complaint, a regulator contacts you, or a product you sold is recalled, early legal input on how to respond will usually be cheaper than fixing the aftermath. And if you are scaling, advice on trade mark protection, supplier or consignment agreements, and privacy compliance will keep the foundations sound.

The threshold that catches Marketplace sellers out

The single most common mistake on Marketplace is not a banned product or a misleading photo. It is assuming the law still treats you as a casual seller when your behaviour has already crossed into business. The triggers are quiet: regular listings, bought stock, profit as the point of it all. Once that is true, the consumer guarantees apply to every sale, "sold as is" protects you less than you think, and the GST clock starts running toward AUD 75,000. The first action to take this week costs nothing: review your last ten listings and your sales records, ask whether a reasonable observer would call it a business, and if the answer is yes, register what needs registering and fix anything in your listings that is less than accurate. The law will not mind that you started as a side hustle. It will mind if you keep pretending you still are one.