CONSUMER LAW Flashcards
ROLE OF THE LAW
Consumer laws aim to protect consumers and make them aware of their rights. The role of the law is to protect those who are unable to protect themselves. Consumer law was not always necessary as many years ago the number of products available for sale was much smaller, and it was possible to inspect a product before you purchased it
AUSTRALIAN CONSUMER LAW
The Australian Consumer Law has applied since 2011 as a result of an agreement between the Commonwealth Government and the governments in each state and territory. The Australian Consumer Law has a wide range of purposes such as encouraging fair trading practices and are involved iprotecting consumers.
UNFAIR TRADING PRACTICES
Australian Consumer Law protects consumers from a number of unfair trading practices. Unfair trading practices which are illegal and protected by Australian Consumer Law include:
False advertising. Falsely stating goods as new. Falsely stating the country of origin. Unconscionable conduct. Much more. (Available on the Australian Consumer Law website.)
Unconscionable Conduct
Unconscionable conduct is unfair conduct in business transactions that goes against good conscience.
For example, deliberately taking advantage of a person with a disability when negotiating a contract
CONTRACTS
Each time you purchase or lease goods or services you enter into a contract. In day-to-day transactions, these contracts are unwritten. However, written contracts are also used in some circumstances such as making large purchases.
Under the contract, you make the commitment to pay in exchange for goods or services. For a contract to exist, both parties must intend that the contract will be legally binding and they must be able to freely agree.
UNFAIR CONTRACTS
A standard-form contract term will be considered unfair for a variety of reasons including that the term would cause detriment to a party if it were to be applied or relied on. An unfair contract term is unenforceable but the contract itself can still be enforceable, particularly if the purpose of the contract can be fulfilled once the unfair term is removed. Some examples of unfair terms in consumer contract could be the ability to let just one party terminate contracts but not the other.
If a standard-form contract term is found to be unfair, the Federal Court has the power to make any orders it desires. If a term is found to be unfair, then the party attempting to enforce it will no longer be permitted to do so. If the term was already enforced, the court may grant remedies to return the party against whom the term was enforced to that party’s original position
CONSUMER GUARANTEES
Consumer Guarantees protect the interests of consumers when they enter into a sales contract.
GOODS SHOULD BE FIT FOR PURPOSE ACCEPTABLE QUALITY SALE BY DESCRIPTION OR DEMONSTRATION SALE BY SAMPLE OWNERSHIP AND REPAIR OF THE GOODS SKILL AND CARE IN THE PROVISION OF SERVICES
GOODS SHOULD BE FIT FOR PURPOSE
The Australian Consumer Law states that goods purchased must be fit for their intended purpose.
In most cases the intended purpose of the item is obvious such as a refrigerator which has the purpose of keeping food cold. If it cannot reasonably do so then the consumer can claim a remedy.
If a consumer has a specific purpose in mind when buying a product and they have discussed this with a salesperson who has guaranteed that the goods sold will fit that the purpose and then the consumer discovers that the good is unable to meet that purpose, they can claim a remedy.
However, the consumer can not claim a remedy if they misuse the product.
ACCEPTABLE QUALITY
The seller and the manufacturer of goods have an obligation to ensure that goods sold are of acceptable quality. This means that the goods should be fit for their purpose, safe to use, free of faults or defects for a reasonable time, acceptable in appearance.
When deciding whether goods are of acceptable quality the law considers the type of goods purchased, the price paid and the description on packages or labels or information given by the supplier at the time of sale.
This does not apply if the purchaser is told about a defect or the defect can easily be seen before the sale.
SALE BY DESCRIPTION OR DEMONSTRATION
Goods must match the description given or match any demonstration shown before purchase. For example, a newly purchased electrical appliance should look and operate the same as any description or demonstration shown in-store or online.
Goods must also meet any additional promises made by the seller. These are known as express warranties.
SALE BY SAMPLE
When an item is sold from a sample, it is expected that the goods are supplied will closely represent the sample.
For example, it is common practice for a consumer to choose carpet from a book containing sample carpet squares. The carpet installed in the home should match the sample shown. If there is a substantial difference from the sample shown then the supplier must rectify the problem.
The consumer should be given reasonable opportunity to compare the actual goods with the original sample. Slight variations are acceptable such as natural markings of leather.
OWNERSHIP AND REPAIR OF THE GOODS
The supplier must guarantee that they own the goods and can legally transfer the ownership rights to the consumer.
Manufacturers also need to guarantee that they will provide reasonable access to spare parts and repairs if the item developed a defect.
SKILL AND CARE IN THE PROVISION OF SERVICES
Traders who supply a service to consumers must use appropriate care and skill. They must have an acceptable level of skills to complete the work and avoid doing damage or causing the consumer any loss. They must also complete the work in a reasonable time.
WHAT HAPPENS IF THE GOOD OR SERVICE DOES NOT MEET ALL THE EXPECTATIONS
The consumer may have a claim against the supplier or the manufacturer who are obliged to rectify the problem. Consumers can ask for the goods to be repaired or replaced, or they can ask for a refund or some form of compensation.
If the supplier refuses to do so, the consumer can contact Consumer Affairs Victoria for advice.
11 CONSUMER RIGHTS
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6 METHODS OR INSTITUTIONS FOR RESOLVING DISPUTES
ACC, ASIC, CONSUMER AFFAIRS VCAT OMBUDSMAN LAWYERS COURTS CLASS ACTIONS
ACC, ASIC AND CONSUMER AFFAIRS
The Australian Competition and Consumer Commission (ACCC) is the national regulatory authority which deals with most consumer complaints.
Complaints involving financial products and services are investigated by the Australian Securities and Investments Commission (ASIC).
Lastly, Consumer Affairs Victoria is a state regulatory body. It works in cooperation with the ACCC and ASIC to protect and promote the interests of Victorian consumers.
They:
• Review and advise the Victorian Government on consumer legislation and industry codes
• Advise and educate consumers on their rights and responsibilities and changes to the law
• Conciliate disputes between consumers and traders
Enforce and ensure compliance with consumer laws.
VCAT
VCAT will hear disputes between consumers and traders. There is no limit on the value of the goods or services in dispute. A person may file an application in VCAT’s Civil Claims List. VCAT will first try to mediate the case, but if an agreement cannot be reached, both sides will be asked to present their evidence and then a tribunal member will decide the case on the same day
Ombudsman
The Victorian Ombudsman is an independent officer of the Victorian Parliament. They can assist consumers if they have paid for goods or services from a government body, such as a local council.
Specific industries may also have an ombudsman to assist with consumer complaints such as the Victorian Energy and Water Ombudsman and the Telecommunications Industry Ombudsman
Lawyer
Lawyers can give consumers advice about how to gain compensation. A matter can be taken to a court or or alternatively a lawyer can negotiate an out-of-court settlement. In consumer law many lawyers will often work on a ‘no win, no fee’ basis. This makes it easy for consumers to bring a case to court
COURTS
A consumer dispute can be taken to the courts. In its civil law, the Magistrates’ Court of Victoria hears and determines disputes arising from any monetary demands. The Magistrates’ Court can determine most disputes over money or property up to the value of $100000 and occasionally they can also hear cases with an unlimited value.
Larger claims can be taken to the County Court or the Supreme Court. If the dispute is federal, it can be taken to the Federal Court
CLASS ACTIONS
In Australia, class actions can be commenced by one person making a claim where seven or more people have claims which arise out of the same or related circumstances.
They allow the victims of large scale wrongs to protect their rights in a more cost-effective way. If a group of people have been similarly injured by the same individual or group they can join together to bring a civil action. They can support each other and share the costs. They allow people to pursue civil actions that they couldn’t afford by themselves
How CONSUMER Law has changed
NGCTUCA
In the 1930s the tort of NEGLIGENCE was established to cover faulty products.
The Trade Practices Act 1974 delegalised misleading and deceptive conduct and started the first CONSUMER GUARANTEES.
In 1996, Australia adopted a National Competition Policy, that aimed to remove restricted competition in the marketplace as this would mean more competition therefore lower prices.
Do Not Call Register Act 2006 outlined rules for telemarketing calls.
Fair Trading Act 2003 bought with it many changes including unfair business practices were prohibited.
In 2004 the Unfair Contract Terms Taskforce was established.
On 1 July 2012 an Act also brought in the application of the Australian Consumer Law nation wide.
Recent changes: What does AUSTRALIAN CONSUMER LAW that was implanted in 2012 provide
- a single, national consumer law system for Australia.
- laws which prohibit unfair contract terms.
- revised national product safety law.
- national consumer guarantees.
- new enforcement powers.
- the Australian Competition and Consumer Commission
