Consumer Protection Law In Australia: Historical Development And Importance

You are required to write a research essay addressing all of following points:

• What are consumer’s protections? Why are consumers protected? Give a short account of the historical development of consumer law in Australia.
• Currently how do consumer’s protection laws operate in Australia? Please explain current consumer law protection at both state and federal level.
• If a consumers is dissatisfied with a good or a service provided explain how he or she can get relief through the court system and outside the court system.
• Must be original work.

Why Consumer Protections is Essential

A consumer is a person who purchases the goods or acquires the services for the direct and personal use, instead of acquiring them for production, manufacturing or resale purposes. The consumers in every jurisdiction are protected through rules and regulations, and these regulations give various rights to the consumers. The consumer protection laws have been designed in the manner so as to prevent the businesses from being engaged in specified unfair practices or fraud, so as to attain a competitive advantage over the competitors (Malbon and Nottage, 2013). Through consumer protection, the interests of the consumer are protected by promoting the competition in the market, which serves the consumers both directly and indirectly. Each nation has its own set of laws which offer protection to the consumers. In Australia, the number of consumer related cases have highlighted the consumer protection offered under the laws (Bruce, 2010). In the following parts, a discussion has been carried on the very meaning and the reasons for offering consumer protections, along with the historical development of the consumer law in Australia. The consumer protection laws in Australia have also been highlighted, in addition to the relief which the court offers, in case the consumer is dissatisfied or his rights are breached.

It is crucial that the consumers are given the proper protection to safeguard their rights, so that they are protected from any kind of exploitation. If the consumer protection laws are absent, the consumers could be easily exploited by being sold unsafe products, hoarding of goods, adulteration, wrong measures and weights being used and even being charged a higher price for inferior quality goods. Further, the consumers do not have the power to safeguard themselves, save for these provisions, due to their lack of knowledge about the proper quality and prices of the products, amongst the other things. The consumer protection legislations keep the businesses in line and restrict them from undertaking such activities (Crawford and Humphery, 2010). The consumer protection laws educate the consumers about their rights, along with the responsibilities imposed on them, so that they can protect their rights and even take the necessary actions against the defaulting companies. Through consumer protection legislations, the consumers can effectively redress their complaints and are ultimately given a good quality of life.

The Australian Consumer Law, covered under Schedule 2 of the Competition and Consumer Act 2010 (Cth), provides the protection to t he Australian consumers (Corones, 2012). This is a law of the Commonwealth, due to which, it is uniformly applicable on every state and territory of Australia. The Australian Consumer Law, or ACL, came into force from January 01^st, 2011 and this law replaced twenty consumer laws, which were earlier applicable across the states, territories and the Commonwealth of the nation (Commonwealth of Australia, 2017a). However, some of these acts are still in force. The Australian Competition and Consumer Commission is the corresponding agency in the nation, which works along with the individual State Consumer Affairs agencies towards consumer protection (ACCC, 2017a). The ACL acts as a protection for consumers in the matters of unfair contract terms, consumer guarantees, unsolicited consumer agreements, unconscionable conduct, and product safety amongst the other things (Consumer Affairs Australia and New Zealand, 2017).

Overview of Australian Consumer Law (ACL)

Before the ACL was brought into force, the consumers in the nation were protected through the Trade Practices Act, 1974 (Cth). Some of the new provisions included the ones related to guarantees, unfair selling practices, and unsafe products (Kidman, 2011). However, the very first anti-trust legislation in this regard was drawn back in 1906. The Australian Industries Preservation Act was drawn on the basis of US act, i.e., the Sherman Act, 1890. Even though the Australian act was modified in the year 1911, it continued to be ineffective. This led to another act being passed in 1965, which was in line with the UK Act of the Restrictive Trade Practices Act, 1956. Ultimately, the Trade Practices Act, 1974 was brought forward which acted as a replacement of the 1965 Act. The Trade Practices Act was a strong legislative framework through which the competition and efficiency of the businesses was promoted, along with putting a control over the restrictive trade practices and protecting the consumers (Shodh Ganga, 2017). However, with the changed time and the need to improve upon consistency and informality between the different Australian jurisdictions, the ACL was brought forward (Casey, 2011).

The ACL is enforced and administered by the ACCC, i.e., Australian Competition and Consumer Commission, along with the consumer protection agencies of the State and territory and this is done in collaboration with the involvement of ASIC, i.e., Australian Securities and Investment Commission, on the finance related matters (Commonwealth of Australia, 2017b). As has been stated earlier, the consumer protection law for the Commonwealth is the Competition and Consumer Act, 2010. There are other acts which offer consumer protection in the nation, on the basis of jurisdiction. For instance, the Fair Trading Act, 2010 for Western Australia; the Australian Consumer Law and Fair Trading Act, 2012 for Victoria; the Australian Consumer Law (Tasmania) Act, 2010 for Tasmania, the Fair Trading Act, 1987 for South Australia; the Fair Trading Act, 1989 for Queensland; the Consumer Affairs and Fair Trading Act for Northern Territory; the Fair Trading Act, 1987 for New South Wales; and the Fair Trading (Australian Consumer Law), 1992 for Australian Capital Territory (Victoria State Government, 2012).

In case the consumer feels that their rights have been breached or that they are dissatisfied with the services or goods given to them, the consumers have been given the right to go to the competent court and apply for relief (Coorey, 2015). This has to be done by making an application under the three step procedure. The consumer can make a complaint, by firstly contacting the seller of the product or the service provider. This has to be followed by making contact with ACCC or the third party. And the final step is to take a legal action (ACCC, 2017b).

Historical Development of Consumer Laws in Australia

In the very first step, the seller is asked to fix the issue or the problem. In such cases, the businesses often ask the proof of purchase and the provisions of refunds, replacement and repair are discussed. It is suggested to always make a written complaint to clearly provide the problem and record it clearly. This would ensure that the matter is resolved out of the court, in a mutual and amicable manner. If the issue remains unresolved in the first step, the complaint has to be made to the ACCC or a third party, so that their assistance can be sought out for solving the issue. The last step is to take legal advice from a legal aid officer, lawyer or a local community legal centre. If the complaint is valid, the consumer can take the compliant to a small claims court or to the tribunal located in the territory or state of the consumer (ACCC, 2017b).

However, before that can be done, it is crucial for the individual going to the court to show that the person is a consumer as per the definition of consumer contained under section 3 of the ACL (Australian Competition Law, 2014). This definition states that such an individual who makes a purchase of goods, or attains services for his personal, domestic or household use to the amount of $40,000 or less, is deemed as a consumer (Australasian Legal Information Institute, 2017). Apart from this, the sections of ACL which have been claimed to be breached have to be clearly stated in the application which is made to the court. Some of the prominent sections under the complaints are brought forward under ACL have been summarized below.

The consumers in the nation are protected from unconscionable conduct through section 21 of the ACL. In order to decide upon the presence or absence of unconscionable conduct, certain factors have to be taken into consideration and these factors have been covered under section 21(2) of the ACL. So, the factors like bargaining strength of the parties, the understanding of the terms of transaction for the consumer, the tactics or undue influence used against the consumer, the prices of goods at which these could be obtained from the third party by the consumer and also the adherence to the difference conditions or requirements of the consumers (Hobart Community Legal Services, 2013). In case this section is breached, the consumer can make an application to the court and in such cases, a fine to the value of $1.1 million can be imposed upon breaching party, in addition to the criminal conviction on the basis of ACL’s Chapter 4 (Federal Register of Legislation, 2013). An example of the unconscionable conduct and the dominance of one part over the other was seen in the case of Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. In this case, the conduct of the strong party had to be recognized for determining if the conduct was indeed unconscionable (Australian Contract Law, 2013).

Enforcement and Administration of ACL in Australia

Similar protections have been provided whereby the obligation has been imposed on the individuals engaged in trade or commerce to not undertake any such conduct which is, or which can be deemed as misleading or deceptive pursuant to section 18 of the ACL (Kolivos and Kuperman, 2012). In the case of Google Inc v ACCC High Court of Australia [2013] HCA 1, it was found that the plaintiff was indulged in misleading and deceptive conduct and due to these reasons, the provisions of the Trade Practices Act, 1974, particularly section 52, had been breached (Lexology, 2013).

In another case, i.e., in the matter of Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] FCAFC 37, it was held by the court that TPG had been engaged in both misleading and deceptive conduct. This was due to the fact that the company required the consumers to pay a higher price, in comparison to what had been advertised by it in the advertisements, and this misled the consumers into believing that a lesser amount was required to be paid (High Court of Australia, 2013). Similarly, in the matter of De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liquidation) & Others [2012] FCAFC 28, a requirement was highlighted by the court that reliance on the misleading conduct had to be clearly shown to uphold that he provisions of the Trade Practices Act 1974 have been breached. As this reliance could be easily established in this case, the plaintiff was awarded remedies by the court (Czoch and Whalebelly, 2012).  

Section 29 of the ACL contains the provisions with regards to the false or misleading representation. Section 29(1)(i) puts a restriction on the people from being indulged in such practices, when the products or services of the company are promoted, which can be termed as being unfair, misleading or false representation in aspects like the value of the product, the standards or something else (Federal Register of Legislation, 2013). An example of punishing the guilty under this section was established under the case of Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263. In this case, the defendant was deemed to have been indulged in false representation, along with engaging in misleading practices as the defendant failed to disclosure the actual amount of services which were offered (Jade, 2015).

To summarize this entire discussion, the need for consumer protection has been highlighted. The consumers have to be protected against misleading conduct, price hording, unfair practices and other such practices, which put the consumers in a disadvantageous position. And for this purpose, the Australian Government has brought forward the commonwealth consumer protection law, along with the state and territory law, which provides the requisite protection to the consumers. These laws provide the rights to the consumers, through which, they can raise their voice. So, in case a consumer is misled, they can make an application to the court, or try to resolve the matter out of court by discussing it with the service provider or the producer of the product. The ACL is the commonwealth act, which safeguards the consumers from misleading conduct and representations. These have been aptly highlighted through the case laws discussed earlier. Hence, the consumer protection laws of Australia, which have changed over the time, offer appropriate protection to the consumers of the nation.

Legal Redress for Consumers in Australia

References

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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: 27/07/17]

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: 27/07/17]

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: 27/07/17]

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: 27/07/17]

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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: 27/07/17]

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

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