Chapter 7: Consumer Law Flashcards
What are the two objectives of the Competition and Consumer Act 2010 (Cth)?
To protect consumers and regulate restrictive trading practices.
This chapter only focuses on the former.
Where are the consumer protection provisions found?
The consumer protection provisions are found in the Australian Consumer Law (ACL) which is contained in a Schedule to the Act.
What is the ACL and when did it come into effect?
On the 1st of January 2011.
It is a national law that applies to all sectors and in all Australian jurisdictions so that all consumers in Australia have the same rights and all businesses have the same obligations regardless of where the transactions occurred.
Why is consumer protection necessary?
Because consumers are often at a distinct disadvantage compared with manufacturers and suppliers of goods and services who are:
. better informed about their products or services
. have better resources
. better information about their legal obligations and the regulations that affect their industry
. and often advertise and market their goods and services in ways that can confuse or mislead consumers.
What does the ACL impose?
Responding to the pressure form protection, the ACL (and its antecedents) imposes:
. general standards of fairness and honesty in business
. prohibits specific unfair trading practices
. regulates specific types of business-to-consumer transactions
. provides basic consumer guarantees for goods and services
. and imposes liability on manufacturers for defective goods
Where does the ACL apply?
The ACL applies nationally and in all states and territories, and to all Australian businesses.
Who administrates and enforces the ACL?
The ACL is administered by the Australian Competition and Consumer Commission (ACCC) and state and territory protection agencies.
It is enforced by all Australian courts and tribunals.
Australian Securities and Investments Commission Act 2001 (ASIC Act).
The projections in the ACL are generally reflected in similar previous in the ASIC so that financial products and services are treated in the same way.
What is examined in this chapter?
. Misleading conduct . Unconscionable conduct . Specific protections . Offences . Enforcement and remedies
What is section 18(1) of the ACL?
It is one of the most significant sections in the ACLas it is the prohibition of misleading or deceptive conduct.
Section 18(1) provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Explain why section 18(1) is used so much.
The use of s18 action by consumers, corporation and the regulator can partly he explained by the fact that:
(a) It is not based on a contractual relationship
(b) There is no need to prove fault or an intention to mislead
(c) It avoids the technical debatable of the common law of misrepresentation and
(d) there are wide-ranging remedies available to both individual victims of misleading conduct and the regulator.
Summary of the features of section 18.
Fault or intention to mislead not required - no civil or criminal sanctions.
It established it is a societal norm of conduct. Therefore, no one needs to have been misled (“likely to mislead” is enough), focus on the conduct of the person not the impact on the victim, possible but not difficult to exclude liability for s18.
Remedies are superior to common law - damages (s232) and compensatory orders (ss237-238)
