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Introduction
The Competition and Consumer Act, 2010, (Cth), which introduced the broad framework of Australian
Consumer Law (ACL) has been operating for 5 years. It is designed to promote vigorous competition
and fair trading in the marketplace, and to protect consumers against particular unfair practices. It
provides a general standard for the conduct of traders and their dealings with consumers and other
businesses.
ACL deepened the general level of protection for consumers and extended the regulation of
competitive behaviour. Of note were the strengthened consumer guarantees especially the
introduction of the concept of durability as integral to an expectation of acceptable quality. This
means consumers are expressly protected if products fail within a reasonable period of time.
Importantly, not only does this provide redress in specific instances, it has also raised standards
across a range of products. For example, Apple warranties are now for two years rather than the
previous 12 months.
ACL also extended prohibitions on specific false and misleading representations, attempted to clarify
restrictions on contractual terms which are deemed to be unfair, and introduced a single national
product safety regime.
The peak enforcement body, the Australian Competition and Consumer Commission (ACCC),
remains the guardian of ACL. The ACCC was also given enhanced investigation and enforcement
Editor: Julie Gleeson (B. Arts; Master of Arts)
powers in 2010 with expanded sanctions and administrative proscriptions designed to improve
compliance in specific industries and across the entire business landscape. Regulation and
enforcement is predicated upon a one law with multiple regulators model. The framework is provided
by ACL with state fair trading laws complementing federal legislation. The ACCC, ASIC and state Fair
Trading departments are pivotal in monitoring compliance and handling consumer complaints. Where
there is a jurisdictional overlap, joint investigations between ASIC and the ACCC are also a feature of
recent years.
Indigenous consumers, especially those in remote areas, are now an enduring priority for the ACCC.
Action has been taken against providers who target remote communities with services, which are
1
Mr Rod Sims, ACCC Chairman, ACCC compliance and enforcement priorities for 2016, speech delivered at the
Conference for the Committee for Economic Development of Australia, Sydney, 23 February 2016
inappropriate, overly expensive or exploitative. Training courses, portrait photography, first aid kits and
tax return services have come under scrutiny. The reality is that vulnerable indigenous communities
remain a target for predatory sellers.
The ACCC is also cognisant of the exposure to exploitation faced by older and newly arrived Australians.
The aged are vulnerable in many areas especially in relation to health and medical issues and retirement
accommodation options. Newly arrived migrants are open to exploitation across a range of consumer
areas.
Product safety is another enduring priority. Woolworths Ltd, were ordered to pay over $3 million in
penalties for breaches of the ACL relating to safety standards. State Fair Trading departments retain a
pivotal role in identifying and acting upon product safety breaches although the system remains reactive
rather than proactive generally harm occurs then a manufacturer or retailer is brought to account.
Extended warranties have long provided a significant revenue stream for retailers. This has been an
ACCC focus in the past and its re-emergence as a priority reflects the important foundation guarantees
play in consumer protection. If a product is faulty, consumers automatically have rights under ACL to a
repair, replacement or, if there is a major failure, a refund. This means the manufacturers warranty
period is somewhat superfluous unless it extends beyond the reasonable time frame which is implicitly
guaranteed. Consequently, it is unlawful for a retailer to provide an extended warranty that only provides
a guarantee which is commensurate to what the statute warrants anyway. In practice, companies have
renamed and rejigged extended warranties (as product care for example), which in essence remain the
same. The statement from Mr Simms that large companies should avoid misleading consumers into
paying for extra protections they already have under the law is somewhat underwhelming2. The practice
is unlawful and should be robustly prosecuted.
Noises have also been made by the ACCC that it is finally willing to tackle new car sales. Despite a
motor vehicle being, for many, the most significant consumer purchase of their lives, the provisions of
the Trade Practices Act and now ACL in relation to implied guarantees have not been stringently
adhered to. Vehicles should be of acceptable quality (including reasonable durability) and fit for the
purpose. Rod Simms opines Hopefully, (my emphasis) if a vehicle fails these guarantees, a consumer
will have rights against the supplier and in some cases the manufacturer3. Consumers who have
purchased a brand new lemon in the past would appreciate a more forceful expectation. Moreover,
meaningful sanctions may improve standards across the entire industry.
Complaints about scams continue to be an ongoing issue. In 2015 there were over 105,000 scam related
contacts fielded by the ACCC4. There is a dedicated Fraud task force, Scamwatch website and specific
communication with potential victims of relationship scams who have sent money overseas.
Cartel conduct remains a conundrum for the ACCC despite regulatory emphasis criminal convictions
remain elusive. This is significant, not only in terms of prosecuting those who breach the law but also in
relation to public perceptions of the effectiveness of the regulatory framework. A general resignation that
big business is always going to rort the little guy undermines confidence and erodes the very purpose of
the ACCC and ACL.
2
Ibid
3
Ibid
4
Ibid
Syllabus links: HSC course: Consumers Principal focus: Investigate the legal rights of consumers and the effectiveness of the law in
achieving justice for consumers
5
http://www.abc.net.au/news, Nurofen maker fined $1.7m , Apr 2016.
Media Release from Premier Mike Baird and Deputy Premier and Minister for Racing Troy Grant
NSW will become the first Australian state to shut down greyhound racing after a Special Commission of
Inquiry found overwhelming evidence of systemic animal cruelty, including mass greyhound killings and
live baiting.
On Thursday, 7 July 2016, Premier Mike Baird and Deputy Premier and Minister for Racing Troy Grant
announced that the NSW Government is acting to protect animal welfare as a priority, and is planning for
an orderly industry shutdown as of 1 July 2017.
Mr Baird and Mr Grant released the report of the Special Commission of Inquiry into the Greyhound
Racing Industry in NSW, which found that between 48,000 and 68,000 greyhounds or at least half of
all greyhounds bred to race were killed in the past 12 years because they were deemed uncompetitive.
The report states up to 20 per cent of trainers engage in live baiting and 180 greyhounds a year sustain
catastrophic injuries during races, such as skull fractures and broken backs that resulted in their
immediate deaths.
Inquiry Commissioner Michael McHugh AC, QC (former High Court judge) has recommended Parliament
considers whether the industry had lost its social licence to operate and should be shut down. If the
industry continued, his alterative recommendation is extensive reform including tighter regulation, but Mr
McHugh stated there was a very real risk that practices such as live baiting would continue.