BSB111 Lecture 10: Consumer Law
Week 10 – Consumer Law
The new Australian Consumer Law
On 1 Jan 2011, a single national consumer law, the Australian Consumer Law (ACL) , was
established.
The ACL is a single, national consumer law.
The ACL is set out in Schedule 2 of the Competition and Consumer Act 2010. (see
www.legislation.gov.au)
The ACL is administered and enforced by the Australian Competition and Consumer
Commission (ACCC) and by the various State and Territory consumer protection agencies.
Scope of the ACL
The purpose of consumer protection laws such as the ACL is to prevent businesses from
harming consumers.
Being familiar with this law is important to you because:
◦when you graduate and start working in business, you will be able to help your
employer comply with the law and avoid the bad publicity, penalties and other
adverse consequences that can flow from a business breaching the law; and
◦as a consumer yourself, you can protect your own interests and pursue the remedies
available to you if your rights are infringed.
ACL as statutory law
Unlike the principles of contract law, that are based on judges’ decisions from key cases, the
ACL is statutory law. (Although cases do provide clarification on how concepts are
interpreted.)
So instead of referring to case names to justify our judgements on specific issues, we must
refer to the section of the ACL
Meaning of ‘consumer’
ACL, Section 3: a consumer is anyone who acquires:
1. any type of goods or services that cost $40,000 or less
OR
2. goods or services costing more than $40,000 if those goods or services are normally
acquired for personal, domestic or household use or consumption
But if the goods were acquired for the purpose of resupply OR for the purpose of using them
up or transforming them, in trade or commerce, in the course of a process of production or
manufacture then that person is not a consumer.
Misleading or Deceptive Conduct
Section 18: a person must not, in trade or commerce, engage in conduct that is misleading
or deceptive or is likely to mislead or deceive.
A person who suffers loss because a business has contravened s18 can commence legal
proceedings against the business and seek one or more of the wide range of remedies
offered by the ACL.
Or the business can lodge a formal complaint with the ACCC, which can take legal action.
So s18 can be relied upon not only by consumers but also by interested members of the
public and by other businesses, including competitors (see for example Gillette Australia Pty
Ltd v Energizer Australia Pty Ltd on p.382 of the textbook, (within section 12.2)).
The intention is irrelevant
It does not matter if the business intended to mislead or deceive, or if it believed that it was
acting honestly and reasonably. If the conduct is misleading or deceptive then the business
has contravened s18.
Three elements must be established before there is a contravention of s18:
The business must have ‘engaged in conduct’, and
The conduct was ‘in trade or commerce’, and
The conduct was ‘misleading or deceptive conduct or likely to mislead or deceive’.
Engaged in conduct
‘Conduct’ has been given a wide meaning under the ACL.
A business ‘engages in conduct’ if it makes a statement or a claim or a promise or even
silence
See, for example, Henjo Investments v Collins Marrickville – textbook p383 (within section
12.2).
In trade or commerce
The conduct must have a ‘trading or commercial character’.
Conduct that takes place in a non-commercial context (such as in a political or education
context), will not be in breach of s18
Document Summary
On 1 jan 2011, a single national consumer law, the australian consumer law (acl) , was established. The acl is a single, national consumer law. The acl is set out in schedule 2 of the competition and consumer act 2010. (see www. legislation. gov. au) The acl is administered and enforced by the australian competition and consumer. Commission (accc) and by the various state and territory consumer protection agencies. The purpose of consumer protection laws such as the acl is to prevent businesses from harming consumers. Unlike the principles of contract law, that are based on judges" decisions from key cases, the. Acl is statutory law. (although cases do provide clarification on how concepts are interpreted. ) So instead of referring to case names to justify our judgements on specific issues, we must refer to the section of the acl. Acl, section 3: a consumer is anyone who acquires: any type of goods or services that cost ,000 or less.
