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Introduction
Australian Government (2010) explains that the Australian Consumer Law started functioning on the 1st of January, 2011, and acted as a replacement to consumer laws spanning across twenty varied commonwealth state and territory laws. Some sources assert that this legislation was passed to bring together and make rational the consumer state laws, which were previously inconsistent and inefficient, into national laws, referred to as the Australian Consumer Law.
What is the application of the ACL in Australia?
According to Australian Government (2010), the Australian Consumer Law (ACL) is a national law relating to consumer protection as well as fair trading. The Australian Consumer Law seeks to provide consumers with the same protection, and allows them to have the same expectations about the conduct of businesses in Australia, whereas businesses in Australia now possess the same obligations and responsibilities in their operations within Australia.
According to Australian Government (2010), the Australian Consumer Law replaces a variety of national and territorial consumer laws in Australia, while creating a better understanding of the law for consumers and businesses alike. In the Australia Consumer Law, every state and territory will adopt the ACL as a law within its jurisdiction, which will promote equal provisions across Australia. This law is enforceable by every Australian court or tribunal, in every state and on every territory. According to Australian Government (2010), the Australian Consumer Law generally means that consumers and businesses in Australia possess the same rights and obligations.
Australian Government (2010) elaborates that the Australian Consumer Law includes various provisions. These include a law on unfair contract terms nationally, which relates to standard form consumer contracts. It also includes a national law that provides assurance as for the rights of consumers in purchasing of goods and services. “Product safety law and enforcement system”, as well as new penalties and law governing consumer agreements are also included in this law over the telephone sales, as well as door to door.
How was the introduction of new legislation important for the whole Australia?
The Australian Consumer Law is important for the whole Australia, more so because of the basic functions of the law. For instance, according to Queensland Government (2013), some of the main functions of the Australian Consumer Law include the improvement of wellbeing of all consumers through their empowerment and protection. Additionally, this law was meant to facilitate competition in the Australian markets, cut down on the cost of business by allowing compliance to a singular trading law irrespective of their location within Australia, as well as the facilitation and enabling of confidence in consumer’s participation in the market through fair interaction of consumers and businesses.
This shows that this legislation was meant to benefit both the consumers and businesses in such a way that both benefit from the new singular national law. The significance of the new piece of legislation is further elaborated by Addisons Commercial Lawyers (n.d.), who explain that the new law was meant to reinforce consumer protection provisions in the expanded trade practice laws in Australia. Among the amendments to this law there are included provisions that make void contracts on unfair terms, which stimulated a reassessment of standard form contracts by many businesses in Australia. The new law also sought to mitigate the risks posed by businesses in Australia, further promoting fairness and confidence in interactions with consumers and businesses. The new law was estimated to benefit the Australian community with the sum between one and a half billion dollars to four and a half billion dollars per year, a prospect that was conceived to facilitate the development of the entire Australian economy.
Is it the state legislation or Commonwealth legislation?
The Australian Consumer Law can be considered both a state legislation as well as well as Commonwealth legislation. This is because this law acts as a law of the Commonwealth, in that Commonwealth government bodies are bound by this law as a law of the Commonwealth, whereas in the same way, the Australia Consumer Law applies in every state and on every territory to all people conducting business within these states or territories, all corporate bodies registered under the state laws or territorial laws, as well as ordinary people who reside or are connected to the state or territory. The Australian Consumer Law on the same breadth applies similarly at the state and the Commonwealth level, in an identical manner, which makes this legislation both state and attributing to Commonwealth.
How does the legislation differ from what existed previously?
The Australian Consumer Law is different from the legislation that existed before in various ways. For instance, the Australian Consumer Law is a national law that applies similarly to all individuals and businesses in the whole of Australia, which is in contrast to the past, whereby consumer protection legislation used to be a mixture of different state and territory consumer laws, alongside the Commonwealth consumer protection legislation encompassed in the fair trading acts and the Trade Practices Act of 1974. The Australia Consumer Law picked the best practices from these existing state and territorial legislation.
This means that initially, states and territories had consumer protection laws that were unique in various territories. For instance, the Australian Consumer Law reduced the number of laws, as well as the compliance requirements through uniform protection in every state and territory, as opposed to different provisions in twenty different states and territories in Australia. Additionally, while the Australian Consumer Law adopted some of the features of the state and territory legalisation, it brought about some key changes applying to issues, such as consumer guarantees, penalties, unfair contract terms, and elements of product safety, which were not included into the previous legislation. Ergo, this legislation possesses the important features of the previous legislation, while also complementing to the previous legislation with new changes intended to improve the interactions of consumers with businesses in the Australian markets.
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Another difference lies in its regulation of the conduct of people and corporations. According to Australian Government (2010), the Australian Consumer Law is a law of the Commonwealth in every state and territory, and as such, it applies to the conducts of people as opposed to corporations, which reveals a major difference with this legislation and the consumer protection provisions of the Trade Practice Act of 1974. Similarly, under the Trade Practice Act, the consumer protection provisions applied to the behaviour corporations as the main suppliers of goods and services, and to all transactions that occur within and across the state borders. While the states are empowered to make their own consumer protection legislations, the Australian Consumer Law applies equally in every state and territory within Australia. The Australia Consumer Laws also created a set of statutory assurances to take the place of the warranties and conditions stipulated in the Trade Practice Act, which elaborates the consumer rights related to goods and services. These include a right to give evidence of their transactions applied for all transactions over seventy five dollars and any lesser amount upon request.
What kind of behaviour can be considered misleading?
The Australian Consumer Law recognises misleading behaviour in areas of advertisements, promotions and any statements, as well as representations by an individual, and quotations. According to Hammer (2012), businesses are likely to go against the Australian Consumer Law, when they engage or create impressions that are misleading to the consumer, such as the price, value and quality of a product or service. If business participates in the misleading behaviour intentionally or unintentionally, it is irrelevant, since the business is in breach of the Australian consumer Law either way.
Misleading behaviour might include lack of disclosure of important details concerning a good or service, or failing to disclose the correct and accurate details or some important facts that may impact the decision of the consumer. Businesses are also not allowed to use small writings or disclaimers, as an excuse for engaging in misleading conduct. In addition to the features discussed, promises, predictions or opinions can also be misleading if a person presenting this information knows the information to be untrue, or if this person does not care whether the information is true or not, and in case this person presented this information without any viable or reasonable grounds.
One of the central aspects of the misleading behaviour lies in the fact that a person is guilty of misleading another person, or if the said person lies, passes inaccurate or false claims to the other person, draws wrong impressions, or makes the other person adopt the wrong conclusion, or if the person omits the pertinent information. On emphasis to the assertion already described, whether this action is intentional or unintentional, it is immaterial, since a person or corporations can be guilty of engaging in misleading conduct, even if the said person or corporation does so, while acting honestly or with sufficient reason.
What are the limitations of s 18 under the ACL, and the ACL itself? Are all transactions between individuals covered by this legislation?
Section 18 of the Australian Consumer Law prohibits the behaviour that is deemed misleading or deceptive. However, this is a subject of one’s own set of limitations. For instance, according to the FindLaw Team (n.d.), the provisions for section eighteen can be very complicated. For instance, the lack of a clearly defined boundary of behaviour is one of the main limitations of this section, such that the courts have not specified these boundaries, and the courts in so doing deviate from the main mandate of the Australian Consumer Law, which is to provide consumer protection.
Not all transactions between individuals are covered by this law. For instance, in the consumer guarantee provisions, transactions above forty thousand dollars and those involving goods, which are not “ordinarily” obtained for domestic use, consumption, or for the use in the house setting, nullify the role of the purchasing entity as a consumer, and as such, the subject in place cannot be protected or covered by the Australian Consumer Law.
Does state law still apply? If so, how?
According to Australian Government (2010), the Australian Consumer Law replaced seventeen national, state and territory consumer laws. This, however, does not mean that state laws do not apply. One of the factors stipulated by Australian Government that was central to the implementation of the Australia Consumer Law presumed that every state and territory needed to introduce legislation that applied to the Australian Consumer Law, as a law of the state of territory, as well as the repealing, amendment or modification of laws that contradict or nullify the effect of the Australian Consumer Law. This means that state laws still apply, provided they are in line with the Australian Consumer Law, and in case they apply to it.
Does the common law still apply to consumer transactions? If so, how?
Australian Government (2010) recognises relevance of common law to consumer transaction even after the adoption and implementation of the Australian Consumer Law. When a contract is declared unfair and void, the injured man is entitled to the remedies provided under common law. Furthermore, some concepts that have been developed in relation to the common law, such as unconscionable conduct, may be studied under the Australian Consumer Law, and remedies stipulated, which shows that common law is still rather relevant in Australia. Furthermore, according to the Australian Government & Attorney-General’s Department (n.d), under consumer law, contract law governs the “enforcement of promises”, and in Australia, these rules are derived from the common law. For instance, the common law in Australia makes a presumption that any person who enters into a contract does so having the full capacity to do so. While this might be wrong in some circumstances, it cements the position and relevance of common law in the Australian Consumer Law and transactions.
What are the remedies for breach of s 18 of the ACL?
Various remedies stipulated for the breach of section 18 of the Australian Consumer Law include injunctions, compensatory orders and damages. Additionally, these remedies include declarations, “disqualification orders, corrective advertising orders”, and non-punitive orders. Additionally, consumer protection agencies may set the alarm against traders who have been issued with court orders after being found guilty of misleading conduct. These agencies may further issue infringement notices, and other notices against the marked traders. Making misleading or false claims can also attract a penalty of over two hundred thousand dollars for individuals, and over one million dollars for corporates.
Is there anything else that you believe is relevant to this topic?
What is also relevant to this topic are the arising issues that have been noticed with the adoption of the Australian Consumer Law. It includes issues that need to be ironed out to improve this law and mitigate its shortcomings. The Australian Consumer Law places businesses at an increased risk, including but not limited to bad publicity, exclusion and loss of reputation. Ryding (2014) also reveals that the Australian Consumer Law’s definition of some terms places it at an increased risk of liability for issues they have no control of. For instance, the Australian Consumer Law’s definition of a manufacturer goes beyond the business that makes goods and extends to people producing raw materials, importers and brand holders for a certain product, meaning that a person may be liable to problems arising in products regardless of whether they had control over the manufacture of goods or not. This brings to light the fact that the definition of terms needs to be more refined and detailed to avert liability to such parties, and eliminate various risks and shortcomings of the Australian Consumer Law.
Conclusion
The Australian Consumer Law is a product or a long period of delegation, planning, and strategy aimed at promoting commerce and economic development through the eradication of trade barriers and stimulation of business transactions guided by a unified national law. While it may be guilty of one or two shortcomings, the Australian Consumer Law is arguably a sound avenue, through which the market has been effectively managed and as such, provides attractive prospects for even greater economic growth and development.
