CLAW1001 Chapter Notes - Chapter 17: Legal Personality, Australian Consumer Law, Caveat Emptor
PART 4: BUSINESS, CONSUMERS AND FAIR TRADING
CHAPTER 17: THE AUSTRALIAN CONSUMER LAW
CONSUMERS, CONSUMERISM AND THE LAW
• Caveat emptor = let the buyer beware
o Sale of Goods Act 1893 (UK) à Aus legislation based off
o Implied terms into contracts for sale of goods à e.g. merchantable quality, reasonably fit for purpose
o Vendors given right to exclude terms in certain circumstances
• United Nations Guidelines on Consumer Protection 1985 (updated 1999)
o Under current review à online consumers, protection of consumer privacy, international cooperation
• Cost to consumer b/c protection = higher prices b/c insurance costs for businesses
THE REGULATORY FRAMEWORK
• Role of common law: Courts retain interpretive role à e.g. misleading or deceptive conduct, unconscionable conduct
o Importance of cases e.g. Smoke Ball + Donoghue Stevenson
• Role of legislation:
o Traditionally states and territories dealt with consumer protection individually
o 1974 Trade Practices Act = entry of Commonwealth
§ Constitution s51(xx): “Foreign corporations, and trading or financial corporations formed within
the limits of the Commonwealth”
• Legislative reform:
o Uniform law = reduced confusion in cross-border transactions, easier job for enforcement agencies
o Competition and Consumer Act 2010 (Cth) = single national consumer law
§ Adopted by each state and territory so same provisions would apply nation-wide
THE AUSTRALIAN CONSUMER LAW
1. Chapter 1: Introduction
a. Definitions
2. Chapter 2: General Protections
a. s 18-19: Misleading or deceptive conduct
(s52)
b. s 20-22A: Unconscionable conduct
c. s 23-28: Unfair contract terms
3. Chapter 3: Specific Protections
a. Consumer guarantees
b. Product safety
c. Product liability
4. Chapter 4: Offences
a. For breach of chapter 3
5. Chapter 5: Enforcement and Remedies
• Schedule to the Competition and Consumer Act 2010
ENFORECEMENT OF THE AUSTRALIAN CONSUMER LAW
• Framework for communication, cooperation and coordination b/w regulators
• Offences can be imposed against the principal party but also accessories
• Public + private enforcement: action can be brought by ACL regulators + private actions for injunctions / damages
THE AUSTRALIAN COMPEITITON AND CONSUMER COMMISSION (ACCC)
• Part II of CCA establishes ACCC as an independent statutory authority + provides for functions and operation
• Main role: to ensure compliance with competition, fair trading and consumer protection provisions of TPA
o Complements S+Ts on fair trade + consumer protection
• Statutory Powers:
o Can compel production of information, documents or evidence
o Ability to issue infringement notices
o Search, seizure and entry in relation to product safety matters
• Guiding principles: transparency, confidentiality, timeliness, consistency, fairness
• Action may result in:
o Declarations of contraventions
o Injunctions restraining current or future conduct
o Requiring publishment of notices about conduct, disclosure of info
o Making findings of fact that show contraventions, so damages can be recovered
o Orders to achieve financial redress
o Non-punitive orders à e.g. community service
o Pecuniary penalties ($$)
o Convicting persons who contravened the ACL
ADMINISTRATIVE REMEDIES
• Enforceable undertakings: undertakings to cease conduct or take action which to lessen undesirable effects
• Substantiation notices: regulators issue notices requiring them to substantiate claims made in relation to G+S
o Give info and/or produce documents
• Public warning notices: about conduct if there are reasonable grounds to suspect conduct constitutes a
contravention of ACL and 1+ will/has suffered
• Infringement notices: ACCC issue for alleged contravention of “infringement notice provision” as alternative to
court proceedings à penalty specified in notice
o If person pays in time period, no proceedings can be commenced or continued à liable if not
Document Summary
Sale of goods act 1893 (uk) aus legislation based off. The regulatory framework: role of common law: courts retain interpretive role e. g. misleading or deceptive conduct, unconscionable conduct. Importance of cases e. g. smoke ball + donoghue stevenson: role of legislation, traditionally states and territories dealt with consumer protection individually, 1974 trade practices act = entry of commonwealth. Constitution s51(xx): foreign corporations, and trading or financial corporations formed within. Legislative reform: the limits of the commonwealth : uniform law = reduced confusion in cross-border transactions, easier job for enforcement agencies, competition and consumer act 2010 (cth) = single national consumer law. Adopted by each state and territory so same provisions would apply nation-wide. The australian consumer law: chapter 1: introduction, definitions, chapter 2: general protections s 18-19: misleading or deceptive conduct (s52) s 20-22a: unconscionable conduct s 23-28: unfair contract terms. Schedule to the competition and consumer act 2010.
