CONSUMER LAW 1
Australian Consumer Law Analysis
Consumer Protections: Purpose and Historical Development
The Australian consumer laws are rules and regulations that have been enacted for the purpose of protecting consumers against possible faulty or even unsafe goods and services as well as unfair treatment from numerous businesses across the globe. It is considered to be a schedule of the underlying Competition and Consumer Act 2010 (Commonwealth of Australia, 2013). It is important to note that the Australian Consumer Law is applied as a distinctive law of the Commonwealth as well as a law of its underlying jurisdiction in each state and territory in a way that ensures all provisions are applied in a much similar manner across the country. In essence, it is administered by the existing Australian Competition and Consumer Commission- ACCC and, also each State and Territory’s existing consumer law agency (Commonwealth of Australia, 2013). It depicts a similar level of protections within the Australian Securities and Investments Commission Act 2001 in relation to both financial products and services.
In 2005, Review of National Competition Policy Reforms, the PC ascertained that the consumer protection legislation as being one of the basic four areas that would translate to immediate reforms in the country (Commonwealth of Australia, 2013). It was later found out that even though the gains and costs related to the consumer protection legislation were less visible; it however was clear that inefficient national mechanisms resulted to poor regulatory inconsistencies to the detriment of both primary consumers and businesses at large. Following this line of reasoning, the PC made the recommendation that both the Australian State and Territory governments should go ahead and formulate a national review that could relate to consumer protection policy and administration (Commonwealth of Australia, 2013). In early 2006, the underlying report of the Taskforce on Reducing Regulatory Burdens on Business agreed fully on the aforementioned report based on the eventual submission that were accessed from a significant number of different stakeholders. Major efforts to develop Australian Consumer Law dates back to 2008 whereby the Council of Australian Governments agreed to its formulation; basing on the underlying recommendations set forth by the Ministerial Council on Consumer Affairs (Commonwealth of Australia, 2013). The law would include; a single national law for consumer protection as well as fair trading that was based on the existing consumer provisions of the Trade Practices Act; a distinctive national unfair contract terms law as well as product safety regulatory systems. It is important to note that the Australian Consumer Law has ensured to simplify the law and thereby making it clearer to comprehend for both customers and the businesses at large (Commonwealth of Australia, 2013). Thus, as a result of ACL, it has been established that more consumers have continued to be far much enlightened hence making informed decisions; it fosters competition as well as aspects related to innovation in markets while still promoting the creation of a rather seamless national economy (Commonwealth of Australia, 2013). Of particular interest to note, the ACL has ensured to foster the simplification of business compliances across Australia through distinctive reduction on the number of laws as well as the number of requirements for which they should comply at all times.
The general protections set forth by the Australian Consumer Law include; first, protection against possible misleading or deceptive conduct. This protection ascertains that the ACL does not condone misleading or even deceptive conduct in regards to trade and commerce practices(Commonwealth of Australia, 2013). Therefore, the law posits that it is unlawful for any given business operating in Australia to issue out statements that relate to its operations that are indeed untrue misleading to its customers (Commonwealth of Australia, 2013). The failure to present relevant pieces of information, promises and opinions as well as future operational predictions are also noted to be misleads and deceit in general practice. Second, it protects against unconscionable conduct towards consumers or even businesses at large. It is crucial to note that in 2010, the Australian Government went ahead to amend the ACL in order to provide that any given court could go forward and establish whether or not unconscionable conduct in regards to the supply or even the acquisition of goods or even services for purposes of trade and commerce (Commonwealth of Australia, 2013). These matters; which were set for the determination, included the relative level of strengths of the bargaining positions for the parties involved in trade, possible use of undue influence; notable degree of pressure or even unfair ways used by an influential party as well as the imminent degree for which each of the underlying parties involved have engage in good faith.
Consequently, the ACL protects against unfair contractual terms amongst the parties involved in the trade agreement. It posits that that unfair agreements in their respective standard forms; consumer contracts are null and void. It ascertains that a consumer contract should be one that is involved directly with the supply of both products and services or in the sale or grant of an interest in land to specific person or household consumption purposes (Commonwealth of Australia, 2013). A court is likely to declare a contractual term to be unfair in the event that it can result to significant imbalances in the involved parties’ rights and obligations that rise under the contract at hand; in cases where it cannot be reasonably fundamental to protect the legitimacy of the interests of the parties that would be perceived advantageous by the term in place; or in cases it could result to detriment to a specific party in the event that it was fully upon in making final purchasing decisions.
Current Consumer’s Operations in Australia
The existing Australian Consumer Law operates and enforced at both the national and local levels. The state and territory consumer agencies are mandated with the responsibility of formulating interim product bans within their respective States and Territories; which is a subject of the overall national ban (Commonwealth of Australia, 2013). At these levels, the agency are further mandated to order compulsory product recalls; issuance of possible safety warning notices and, also ensuring to come up with efficient number of references to the ACCC for purposes of upholding safety standards across the nation.
It is crucial to note that the states, just like their territories counterparts, possess immense level of overall power that could be invoked in regards to consumer protection aspects. This is allowed within the breadth of territories power in section 122 of the existing Australian Constitution (Commonwealth of Australia, 2013). Following this line of argument, it can be established that each of the state and territorial parliament has ensured that it applied the Australian Consumer Law as an imminent law for their own jurisdictions and thus, it applies to the conduct of both companies and individual persons.
The State and Territory application of the Acts ensure to oversee the way for which consumers can easily access Commonwealth, state and territory courts as well as tribunals. Notably, it ensures to focus on dealing with all administrative and judicial-based review processess in regards to the underlying actions of regulators that fall under the ACL; and, also focuses on ascertaining specific enforcement issues as well as processess that seek to portray different policy models to the relevant administrative functions and enforcement platforms across the nation.
In relation to matters related to enforcement, penalties and remedies of the Australian Consumer Law, it should be established that it focuses on encompassing a single platform of enforcement powers for possible breaches (Commonwealth of Australia, 2013). The remedies and penalties related to this law are all found within the Trade Practices Act like subjecting to criminal sanctions for the most serious of the breaches.
It is critical to note that under the Australian Consumer Law, there is an extensive and robust product safety law that significantly applies to consumer-related goods and services that are provided within Australia. The state and territory consumer protection platforms across the country assume an integrated approach to the immediate application as well as enforcement of the product safety laws across Australia (Commonwealth of Australia, 2013). Notably, the ACL further sets to outline the major responsibilities of suppliers through its national product safety platforms. In consequence, both the ACCC and state and territory consumer protection agencies are deemed to be accountable for the activities related to the monitoring of the market in order to establish possibilities of unsafe products and thereafter; formulate ways to address hazards or encourage safe practices (Commonwealth of Australia, 2013). This is likely to be conducted by way of setting up consumer awareness initiatives, safety-related warning practices, product recalls; as well as mandatory safety standards.
The mandatory safety standards are certainly declared by the Commonwealth Minister and are lunched in the event that it is deemed reasonable to prevent or even decrease the level of possible risk involved to a single individual or household as a whole (Commonwealth of Australia, 2013). This standard is able to provide a significant level of safety requirements like the mode of product manufacturing; contents involved in the production process; possible tests needed for determining viability of the product; and, also the instructions and warnings needed for informing end consumers. Bans can be positioned on consumer goods or even product-related services in case there lays a possible evidence of risk injuries; illness or even fatalities that are attributed to the consumption of the products or even services at hand. State or territories are allowed are only allowed to issue interim bans by the respective Minister (Commonwealth of Australia, 2013). The requirement ascertains that business should not all supply consumer-related products and services in the case that they are a subject of permanent or even interim bans. Notwithstanding, the product safety ensures to avail a single national technique that should be used for issuance and enforcement of recalls of consumer products and services. In the event that it is established that a particular product or service is ascertained to be hazardous or even non-complaint to a certain mandatory standard or even ban it is then subjected to a recall by the supplier at hand (Commonwealth of Australia, 2013). The fundamental purpose of a recall is to prevent possible injuries by way of eliminating the immediate source of the hazard and thereby offer affected consumers some of retribution like replacement and refunds whenever possible. Safety warning notices are certainly issued for purposes of alerting the immediate public that a particular product or service is under immense investigation or even poses a relatively higher level of risk.
Relief for a Dissatisfied Customer under Australian Consumer Law
In case there is a level of un-satisfaction from the consumer, Australian Consumer Law provides for a set of remedies that are both court and non-court in nature. These remedies to the customer are expounded as follows;
First, ACL offers civil pecuniary penalties; which allows consumer agencies to seek possible monetary penalties for breaching the requirements. these set of penalties is considered effective in case the breach is civil in nature. Second, the ACL posits for a disqualification order for which consumer agencies can apply to specific courts in order to disqualify a supplier for even managing a company engaged in the breaching of the entire Australian Consumer Laws. Third, the consumer agencies upon where dissatisfied customers report their disappointments may seek non-punitive orders from courts (Commonwealth of Australia, 2013). The courts will then impose a certain form of remedy for purposes of redressing possible harm that is suffered in the community from the underlying contravention. Certainly, these consumer agencies might go forward to propose to courts to apply adverse publicity orders that clearly reflect on the degree of the breach of ACL. The customer is also at liberty to seek damages for the possible dissatisfaction of the product or services purchased so that the loss is passed onto the supplier (Commonwealth of Australia, 2013). Notably, it is established that the customer agencies may embark on redress for non-parties; where it seeks to pursue specific remedies like refunds or contract variations that can be conducted outside of courts.
Commonwealth of Australia (2013), The Australian Consumer Law: A framework overview. Retrived on August 4, 2016 from http://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf