The Essay On Consumer Protection Law In Australia Is Informative.

Discuss about the Consumer Protection Law in Australia.

Consumer protection is something which protects the consumers in any nation, from any kind of mistreatment. But before discussing upon the consumer protection and its history, the very meaning of a consumer has to be made clear. A consumer is such an individual who makes purchase of certain products or acquires the services being offered by another party for being used for personal reasons, whether directly or indirectly, instead of using the products for reselling, manufacturing or production purposes. Different legislations have been drawn in every nation for safeguarding and protecting the consumers in the particular nation. These legislations have been crafted in such a manner so that the businesses can be stopped from being engaged in any such activity which propagates unfair competition, fraud, unfair practices, and the like (Malbon and Nottage, 2013). The interests of the consumer in the nation are safeguarded through consumer protection; and for this purpose, these legislations promote a healthy competition in the market, which directly and indirectly, works in the favor of the consumers. In Australia, the consumer protection laws act as a protection for the consumers through different laws (Bruce, 2010). Through this discussion, an attempt has been made to highlight the reasons and meaning of consumer protection and in this discussion, the historical development of this segment, in the nation, has also been explained. The relief offered by the courts and the different laws which help the consumers in protecting themselves when their rights have been contravened.

The consumers have to be given the protection through the regulatory mechanism so that their rights can be safeguarded and so that they can be saved from exploitation of any kind. In absence of consumer protection norms, the consumer can be exploited in different manners, including sale of unsafe or adulterated products, being sold products at prices higher than their actual price, using wrong measuring tools, being given inferior quality goods, giving expired products and the like. The consumers, as single entity, do not have any authority or power which could be used to safeguard them and this makes it crucial for the government to come up with such laws which can save the consumers, as they lack the required information about the quality, the prices and the other details related to the products. Through the consumer protection regulations, the businesses are obligated to follow the standards and give the right worth to the consumer’s money (Crawford and Humphery, 2010). The legislations related to consumer protection help in educating the consumer on the matter of their rights and responsibilities and this knowledge can help them in taking steps required for saving their rights and initiating legal action in case a company breaches these provisions.

Historical Background

The Competition and Consumer Act 2010 (Cth), through its Schedule 2 offers the consumer protection related provisions in Australia and this schedule is given the name of Australian Consumer Law (Corones, 2012). The Australian Consumer Law , short for ACL, is a commonwealth law and hence, it is applicable over the entire commonwealth and so, these are to be applied over each and every territory and state of the nation. The ACL became applicable from 01^st January, 2011 and with this law, the earlier twenty different consumer laws were replaced and these were in force till the time the ACL became applicable on the entire nation (Commonwealth of Australia, 2017a). Even with the enforcement of the ACL, some of the other legislation continues to be in force. The agency which is responsible enforcing these laws and for upholding the matters related to the consumer protection is the Australian Competition and Consumer Commission and for helping this body, the different individual State Consumer Affairs agencies have been formed (ACCC, 2017a). The consumer are protected through the ACL in the matters related to product safety, unconscionable conduct, unconscionable conduct, unsolicited consumer agreements, and unfair contract terms (Consumer Affairs Australia and New Zealand, 2017).

ACL is not the first legislation which protects the consumers in the nation from consumer protection. The historical background of consumer protection norms can be traced back to the anti-trust legislations drawn back in 1906 in the nation. On the basis of the United States’ Sherman Act, 1890, the nation came up with the Australian Industries Preservation Act. This Australian act was amended in 1911 to make it more effective; however, this could not be successful. To deal with the shortfall of the previous acts, an act was brought in 1986 which was aligned with the Restrictive Trade Practices Act, 1956 of the United Kingdom (Shodh Ganga, 2017).  With the failure of this act, the Trade Practices Act, 1974 was brought into force. Trade Practices Act, 1974 or TPA, was a key consumer protection legislation which included provisions like unsafe products, selling practices being unfair and the guarantees (Kidman, 2011). Though, the changed business environment required even a stricter law and in order to deal with the shortfalls of the TPA, the ACL was made applicable in the nation (Casey, 2011).

The enforcement of ACL, as stated earlier, is administered, as well as, is enforced by the Australian Competition and Consumer Commission, in addition to the state based consumer protection agencies. In this aspect, there is also the involvement of the Australian Securities and Investment Commission but this is limited to the matters related to finance (Commonwealth of Australia, 2017b). And the governing act, as stated earlier is the ACL, under the Competition and Consumer Act. The consumer protection in Australia is also granted through some state based acts, which are applicable in the jurisdiction of the particular state only. Some of these include, for Queensland, the Fair Trading Act, 1989; for Victoria, the Fair Trading Act, 2012; for New South Wales, the Fair Trading Act, 1987; for Australian Capital Territory, the Fair Trading (Australian Consumer Law), 1992; for Western Australia, the Fair Trading Act, 2010; and for South Australia, the Fair Trading Act, 1987 (Victoria State Government, 2012).

The Role of Australian Competition and Consumer Commission

The consumer protection rights allow the consumers to bring the matter before the competent court and get the relief which has been provided through the legislations and based on the decision of the court (Coorey, 2015). In order to bring action against the breach of rights or dissatisfaction in the goods or services, the consumer has to make the application in three stepped procedure. A complaint has to be made by the consumer in which the contact has to be established with the service provider or the product seller. The second step is to contact the Australian Competition and Consumer Commission or to a third party, who can resolve the issue. Only when these two steps bear no results, can the consumer move towards the final step of initiating a lawsuit (ACCC, 2017b).

When the contact is established with the consumer, the seller or the service provider is asked to resolve the problem or the issue which has been highlighted by the consumer. And in such cases, the service provider or the seller may be asked to refund, replace or repair the product and before doing so, the business can ask the consumer for the proof of purchase. In this step, it is preferable to make a written complaint so that the problem can be properly stated and recorded. By stating everything in writing, the matter can be clearly stated and this acts as evidence for future purposes. Through adoption of this technique, the issues can be effectively solved without opting for the court, in an amicable manner. When the issue cannot be solved in this stage, the next step is to involve a third party or the Australian Competition and Consumer Commission so that heir help can be taken for resolving the matter. Even at this stage, if the matter is not solved, the consumer should opt for a legal aid officer, a local community legal centre or a lawyer’s advice. And on the basis of this advice, the complaint can be made in a tribunal or a competent court which is located in the consumer’s territory (ACCC, 2017b).

In order to make a claim in the court, it is crucial for the consumer to establish that he/ she is consumer pursuant to section 3 of the ACL, as only consumers has the rights under this act (Australian Competition Law, 2014). Under this definition, the person who purchases products or obtains services for household, personal or domestic use for a sum of less than $40,000, is considered as a consumer under the ACL (Australasian Legal Information Institute, 2017). When the application is made before the court, there is a need to clearly provide the sections of ACL which the consumer feels have been contravened. Some of the examples in which the consumers’ rights have been safeguarded by the court have been highlighted herewith.

State-Based Acts

The unconscionable conduct in the nation, is restricted through the section 21 contained in the ACL. For establishing that a case of unconscionable conduct has been undertaken, some of the factors have to be considered and the details of these factors have been aptly covered in section 21(2) of this act. This includes the factors the tactics or undue influence which is undertaken against the consumer, the bargaining strength of the parties, the prices of goods at which these could be obtained from the third party by the consumer, the understanding of the terms of transaction for the consumer, and the fulfillment of different requirements or conditions of the consumers (Hobart Community Legal Services, 2013). When a contravention of this section is claimed, an application of the consumer before the court can result in a fine being imposed on the breaching party, to the sum of $1.1 million and even the criminal conviction which is contained in Chapter 4 of the ACL can be made applicable (Federal Register of Legislation, 2013). A leading example of unconscionable conduct was held by the court in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, where the dominance of the strong party was taken into consideration and it was held as unconscionable conduct by the court (Australian Contract Law, 2013).

The service providers and the manufacturers, producers and distributor also have an obligation under section 18 of the ACL to restrict any such activity which can be deemed as misleading or deceptive during the trade and commerce (Kolivos and Kuperman, 2012). The De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liquidation) & Others [2012] FCAFC 28 is a case where the court held that for a claim to be made successfully for the breach of this section, it had to be shown that reliance by the consumer, was made on the misleading conduct of the other party and only then the provisions of the erstwhile act of TPA could be stated to have been breached. Upholding the presence of reliance in this case, the court awarded the remedies to the plaintiff (Czoch and Whalebelly, 2012). 

Similar case was that of Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] FCAFC 37 in which TPG was held to have been involved in conduct which could be termed as both misleading and deceptive. In this case, the company had claimed in the advertisement that a single sum of amount had to be paid when the product was being purchased; however, the reality was far from the truth and the consumers, in reality, had to pay a considerably higher sum. As these costs were hidden for the purpose of misleading the consumers, TPG was held liable (High Court of Australia, 2013). One of the recent famous cases where a giant like Google was fined for misleading conduct was the case of Google Inc v ACCC High Court of Australia [2013] HCA 1. Here, the company was held to have been engaged in misleading and deceptive conduct and section 52 of the erstwhile TPA were held to have been contravened by Google (Lexology, 2013).

Consumer Protection Rights

To conclude, the consumer protection legislations are an effective tool in safeguarding the interest of the consumers and through them, the consumers are given rights and responsibilities and these are protected through the provisions of the consumer protection legislations. The Australian consumer protection laws have changed over the time and at present, ACL is the legislation which protects the consumers. And the provisions of this act, as highlighted through the case laws above, prove to be sufficient for the protection of the consumers.

References

ACCC. (2017a) Consumer protection agencies. [Online] Australian Government. Available from: https://www.accc.gov.au/contact-us/other-helpful-agencies/consumer-protection-agencies [Accessed on: 02/08/17]

ACCC. (2017b) Make a consumer complaint. [Online] Australian Government. Available from: https://www.accc.gov.au/consumers/complaints-problems/make-a-consumer-complaint [Accessed on: 02/08/17]

Australasian Legal Information Institute. (2017) Competition And Consumer Act 2010 - Schedule 2. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html [Accessed on: 02/08/17]

Australian Competition Law. (2014) Section 21: Unconscionable conduct in connection with goods or services. [Online] Australian Competition Law. Available from: https://www.australiancompetitionlaw.org/legislation/provisions/acl21.html [Accessed on: 02/08/17]

Australian Contract Law. (2013) Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/cases/amadio.html [Accessed on: 02/08/17]

Bruce, A. (2010) Consumer Protection Law in Australia. Chatswood, NSW: LexisNexis Butterworths.

Casey, L. (2011) Australia: Australian Consumer Law changes – Competition and Consumer Act 2010. [Online] Mondaq. Available from: https://www.mondaq.com/australia/x/126518/Consumer+Law/Australian+Consumer+Law+changes+Competition+and+Consumer+Act+2010 [Accessed on: 02/08/17]

Commonwealth of Australia. (2017a) Australian Consumer Law. [Online] Commonwealth of Australia. Available from: https://consumerlaw.gov.au/ [Accessed on: 02/08/17]

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Corones, S.G. (2012) The Australian Consumer Law. New South Wales: Lawbook Company.

Crawford, R., and Humphery, K. (2010) Consumer Australia: Historical Perspectives. Newcastle: Cambridge Scholars Publishing.

Czoch, K., and Whalebelly, R. (2012) Australia: D&O: Shareholder reliance on misleading and deceptive conduct. [Online] Mondaq. Available from: https://www.mondaq.com/australia/x/182340/Arbitration+Dispute+Resolution/DO+Shareholder+reliance+on+misleading+and+deceptive+conduct [Accessed on: 02/08/17]

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High Court of Australia. (2013) Australian Competition and Consumer Commission V TPG Internet Pty Ltd (M98/2013). [Online] High Court of Australia. Available from: https://www.hcourt.gov.au/assets/cases/m98-2013/M98-2013.pdf [Accessed on: 02/08/17]

Hobart Community Legal Services. (2013) Unconscionable Conduct under the ACL. [Online] Hobart Community Legal Services. Available from: https://www.hobartlegal.org.au/tasmanian-law-handbook/consumers-money-and-debts/australian-consumer-law/unconscionable-conduct [Accessed on: 02/08/17]

Kidman, A. (2011) A Guide To The New Australian Consumer Protection Laws. [Online] Life Hacker. Available from: https://www.lifehacker.com.au/2011/01/a-guide-to-the-new-australian-consumer-protection-laws/ [Accessed on: 02/08/17]

Kolivos, E., and Kuperman, A. (2012) Consumer law: Web of lies-legal implications of astroturfing. Keeping good companies, 64(1), p. 38.

Lexology. (2013) Google Inc v ACCC [2013] HCA 1. [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=f263c111-d7f3-44d5-8f30-c715629319c3 [Accessed on: 02/08/17]

Malbon, J., and Nottage, L. (2013) Consumer Law & Policy in Australia & New Zealand. NSW: The Federation Press.

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Victoria State Government. (2012) Australian Consumer Law and Fair Trading Regulations 2012. [Online] Victoria State Government. Available from: www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/...nsf/.../12-062sr.docx [Accessed on: 02/08/17]