consumer essay points

Question 1

ACCC effective case

Answer 1

Nurofen’s breach of Section 29 of the ACL titled “Nurofen fined $6 million for misleading consumers”.

ACCC v Reckitt Benckiser (2016)

Question 2

ACCC effective evidence ( for nurofen case)

Answer 2

ACCC Chairman Rod Sims claims “higher penalties act as an effective deterrent”,

Question 3

ACCC ineffective case

Answer 3

ACCC v GSK and Novartis which imposed a $4.5 million fine over misrepresentations within Voltaren Osteo Gel on the 28th May 2020.

Question 4

ACCC ineffective evidence (for voltaren case)

Answer 4

Rod Sims who stated “it’s really disappointing that post - Nurofen, there is still this behaviour”

Question 5

ACCC overall

Answer 5

effectively resolves conflicts by taking actions against infringements of the ACL

deterrence is not always sufficient,

Voltaren case which reinforces its ineffectiveness.

Question 6

deceptive and misleading representations effective case

Answer 6

Oscar Wylee’s socially conscious donation scheme breached Section 18 of the ACL and ordered them to pay pecuniary penalties of $3.5 million.

Question 7

deceptive and misleading conduct ineffective case

Answer 7

On the other hand, an article published by 9 News in 2020 disclosed that “in almost five years, Oscar Wylee sold 328,010 pairs of glasses but only donated 3,181 frames to charity”.

Question 8

deceptive and misleading conduct ineffective evidence (ACL legislation)

Answer 8

Section 18 of the ACL claims a business “must not engage in conduct that is misleading or deceptive”

Question 9

deceptive and misleading conduct overall

Answer 9

The ability for the Federal Court to enforce the ACL and penalise deceptive or misleading conduct, indicates the significant effectiveness of marketing and advertising regulation in protecting consumers.

Question 10

NCAT effective case

Answer 10

daily telegraph in August 2015 titled “Car owners are using NCAT to win big refunds”

disclosed how Croydon’s Automobile Shop was issued by NCAT to refund $90 000 to consumers.

Question 11

NCAT legislation

Answer 11

Section 36 of the Civil and Administrative Tribunal Act (NSW) 2013 stipulates that NCAT will “facilitate just, quick and cheap resolution of real issues”

Question 12

NCAT ineffective case

Answer 12

However, the effectiveness of legal redress and remedies provided through NCAT is significantly limited due to Part 6A of the Fair - Trading Act 1987, which restricts its jurisdiction and consequently enforceability powers.

Question 13

NCAT ineffective evidence (tim mckibbin)

Answer 13

REINSW CEO, Tim McKibbin, who states redress and remedies away from NCAT is “cumbersome and expensive” and consequently, consumers choose “not to pursue their legal rights”.

Question 14

NCAT overall

Answer 14

NCAT plays a critical role in achieving consumer

it offers a less formal, expensive and time-consuming approach in providing protection

Question 15

federal court effective case

Answer 15

In the case ACCC v Oscar Wylee in September 2020

the Federal Court found Oscar Wylee’s socially conscious donation scheme breached Section 18 of the ACL

ordered them to pay pecuniary penalties of $3.5 million

Question 16

federal court effective evidence

Answer 16

ACCC Deputy Chair Deila Rickard: the Federal Court’s decision will protect the “charitable nature and goodwill of consumers’’

Question 17

federal court ineffective case

Answer 17

“loose change: Judge suggests Apple could recoup $9 million penalties in minutes” (SMH, July 2018), expresses the concerns of Justice Micheal Lee who believes despite the “significant” pecuniary fine it “does not impose a sting or burden” on multinational corporations like Apple.

Question 18

federal court ineffective evidence (apple case)

Answer 18

ustice Micheal Lee: inadequate penalties will not “achieve the deterrent effect”

Question 19

federal court overall

Answer 19

While the Federal Court has the ability to be effective in encouraging companies to cooperate with the law through judicial power,

they are ineffective in deterring non-compliance behaviours and preventing future consumer conflicts

companies must be penalised in accordance with their revenue to be totally effective.

Question 20

CHOICE effective case

Answer 20

November 2020, Choice released an article titled “people power brings a win on hand sanitiser labelling”

ability to investigate, change and create awareness surrounding consumer issues.

Question 21

CHOICE effective evidence (hand sanitiser)

Answer 21

Choice Senior Campaigner Dean Price: “Hand sanitisers will be safer thanks to over 22,000 Australians demanding better”

Question 22

CHOICE ineffective case

Answer 22

“85% of prams fail CHOICE safety tests” (CHOICE article) yet no legal action has been taken

Question 23

CHOICE ineffective evidence (government)

Answer 23

December 2020 Choice: “governments tend to wait until one of these products causes serious injury or death”

Question 24

CHOICE overall

Answer 24

Choice are deemed as an effective measure to some extent

due to their investigative nature which provides a platform

Discouraging businesses from misleading consumers as businesses will attempt to avoid negative media attention that will affect their sales and income.

raises awareness

ineffective due to inability to provide law reform or impose any punishment for contravention of the ACL.

Question 25

ACCC v Reckitt Benckiser (2016)

Answer 25

Demonstrates efficiency of ACCC in redressing consumer issues

$6mil fine imposed by the Court for contravention

ensures Nurofens cooperation and penalty to act as future general deterrence

ACCC enforcement of the ACL legislation provides guidance to actions for consumer protection

Question 26

‘ACCC sues Voltaren makers GlaxoSmithKline and Novartis for misleading consumers’

Answer 26

Ineffective as the ACCC chairman states that the deterrence message of the Nurofen case was not as effective as hoped, and the ACCC would keep taking court action to get the message across

Voltaren continued to mislead consumers proving that Nurofen’s remedy (fine) did not act as a deterrent.

The company engaged in false representation for 5 years prior to when the breach was identified by the ACCC, highlighting the ineffectiveness of their reactive rather than proactive response to consumer protection.

Question 27

“Car owners using the NSW Civil and Administrative Tribunal to win big refunds” (August 2015)

Answer 27

Effective in providing legal remedy for consumers through awarding compensation

Demonstrates consumer using NCAT to enforce their legal rights

This holds businesses accountable for unlawful treatment of consumers, ordering refunds for deceptive products

Question 28

“Telstra ordered to pay $10 million after misleading bill charges” (SMH April 2018).

Answer 28

Demonstrates the effectiveness in providing remedies to resolve conflict between consumer and company,

mislead 100,000 customers in billing charges

In recognising the deterrence, a severe penalty provides, Telstra are urged to cooperate with the ACL which will prevent future issues and “just unacceptable behaviour” within the marketplace

Question 29

“Loose change: Judge suggests apple could recoup $9 million penalty in minutes” (SMH, July 2018)

Answer 29

When issuing fines, the Federal Court is restricted by the maximum penalties outlined within the ACL

The Court is limited in its ability to achieve justice as fines are not determined with consideration of the company revenue

mislead 275 customers

limited general deterrence for multinational companies creates ineffective consumer protection and unjust outcome.

Question 30

“Choice calls for cot firmness test to be made mandatory” (Choice article, March 2016).

Answer 30

Demonstrates effectiveness in actively testing and then informing consumers on product safety

seeking law reform on behalf of consumers which is addressing the needs within society.

Question 31

“85% of prams fail CHOICE safety tests” (CHOICE article)

Answer 31

Choice lacks statutory power to instigate legal action against businesses,

40/47 prams failed test

they can essentially only encourage cooperation

entirely dependent upon the cooperation of legal processes

calls for law reforms, the absence of any statutory power tarnished its effectiveness

Question 32

(ACCC) Under the ACL, it is illegal for a business to engage…

Answer 32

in conduct that misleads or deceives, or is likely to mislead or deceive consumers or other businesses.

Question 33

(ACCC voltaren) rod sims chairman states that…

Answer 33

the deterrence message of the Voltaren case was not as effective as hoped.

Question 34

NCAT was established by the Civil and Administrative Tribunal Act in 2013 to…

Answer 34

consolidate 22 tribunals into one to allow consumer law to be more accessible and cost effective.

Question 35

Reinforced in section 36 of the NCAT Act…

Answer 35

which defines “guiding principles for the proceedings in the tribunal is to facilitate the just, quick and cheap resolution of real issues”.

Question 36

NCAT member john levingston deemed this (switching of car engines) inappropriate as…

Answer 36

the consumer should not have to accept this engine substitution

Question 37

ASIC which works to…

Answer 37

administer legislation including the Corporations Act 2001

Question 38

Federal Court Judge Justice Michael Lee stated that…

Answer 38

the fine against apple “does not impose a sting or burden” despite being a “very significant” contravention of the ACL.

Question 39

Choice has brought to light statistics of around…

Answer 39

780 deaths and tens of thousands of injuries annually in Australia due to unsafe products