consumer essay points Flashcards
ACCC effective case
Nurofen’s breach of Section 29 of the ACL titled “Nurofen fined $6 million for misleading consumers”.
ACCC v Reckitt Benckiser (2016)
ACCC effective evidence ( for nurofen case)
ACCC Chairman Rod Sims claims “higher penalties act as an effective deterrent”,
ACCC ineffective case
ACCC v GSK and Novartis which imposed a $4.5 million fine over misrepresentations within Voltaren Osteo Gel on the 28th May 2020.
ACCC ineffective evidence (for voltaren case)
Rod Sims who stated “it’s really disappointing that post - Nurofen, there is still this behaviour”
ACCC overall
effectively resolves conflicts by taking actions against infringements of the ACL
deterrence is not always sufficient,
Voltaren case which reinforces its ineffectiveness.
deceptive and misleading representations effective case
Oscar Wylee’s socially conscious donation scheme breached Section 18 of the ACL and ordered them to pay pecuniary penalties of $3.5 million.
deceptive and misleading conduct ineffective case
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”.
deceptive and misleading conduct ineffective evidence (ACL legislation)
Section 18 of the ACL claims a business “must not engage in conduct that is misleading or deceptive”
deceptive and misleading conduct overall
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.
NCAT effective case
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.
NCAT legislation
Section 36 of the Civil and Administrative Tribunal Act (NSW) 2013 stipulates that NCAT will “facilitate just, quick and cheap resolution of real issues”
NCAT ineffective case
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.
NCAT ineffective evidence (tim mckibbin)
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”.
NCAT overall
NCAT plays a critical role in achieving consumer
it offers a less formal, expensive and time-consuming approach in providing protection
federal court effective case
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
federal court effective evidence
ACCC Deputy Chair Deila Rickard: the Federal Court’s decision will protect the “charitable nature and goodwill of consumers’’
federal court ineffective case
“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.
federal court ineffective evidence (apple case)
ustice Micheal Lee: inadequate penalties will not “achieve the deterrent effect”
federal court overall
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.
CHOICE effective case
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.
CHOICE effective evidence (hand sanitiser)
Choice Senior Campaigner Dean Price: “Hand sanitisers will be safer thanks to over 22,000 Australians demanding better”
CHOICE ineffective case
“85% of prams fail CHOICE safety tests” (CHOICE article) yet no legal action has been taken
CHOICE ineffective evidence (government)
December 2020 Choice: “governments tend to wait until one of these products causes serious injury or death”
CHOICE overall
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.
ACCC v Reckitt Benckiser (2016)
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
‘ACCC sues Voltaren makers GlaxoSmithKline and Novartis for misleading consumers’
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.
“Car owners using the NSW Civil and Administrative Tribunal to win big refunds” (August 2015)
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
“Telstra ordered to pay $10 million after misleading bill charges” (SMH April 2018).
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
“Loose change: Judge suggests apple could recoup $9 million penalty in minutes” (SMH, July 2018)
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.
“Choice calls for cot firmness test to be made mandatory” (Choice article, March 2016).
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.
“85% of prams fail CHOICE safety tests” (CHOICE article)
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
(ACCC) Under the ACL, it is illegal for a business to engage…
in conduct that misleads or deceives, or is likely to mislead or deceive consumers or other businesses.
(ACCC voltaren) rod sims chairman states that…
the deterrence message of the Voltaren case was not as effective as hoped.
NCAT was established by the Civil and Administrative Tribunal Act in 2013 to…
consolidate 22 tribunals into one to allow consumer law to be more accessible and cost effective.
Reinforced in section 36 of the NCAT Act…
which defines “guiding principles for the proceedings in the tribunal is to facilitate the just, quick and cheap resolution of real issues”.
NCAT member john levingston deemed this (switching of car engines) inappropriate as…
the consumer should not have to accept this engine substitution
ASIC which works to…
administer legislation including the Corporations Act 2001
Federal Court Judge Justice Michael Lee stated that…
the fine against apple “does not impose a sting or burden” despite being a “very significant” contravention of the ACL.
Choice has brought to light statistics of around…
780 deaths and tens of thousands of injuries annually in Australia due to unsafe products
