CONSUMER LAW Flashcards
The developing need for consumer protection
Prior to the industrial revolution there was very little consumer protection with lots of scams within markets and dodgy business misconduct.
Caveat emptor: Laws were in place meaning let the buyer beware and this meant that the consumer had to use their own knowledge to protect themselves from exploitation.
Laissez faire: This is an economic system whereby the government refrains from interfering with markets by laws and regulation this leaves little room for consumer protection
What are the objectives of the competition and consumer act 2010
Educate the public, mandate standards, provide remedies, encourage dispute resolution, regulate advertising and e-commerce, contracts, consumer protection, adding disadvantaged consumers, stimulating the economy and increasing competition and protecting consumers from faulty or dangerous products
What is a contract and what are the types of contracts?
A contract is an agreement made between two or more persons that is recognised by the courts as a legally binding document on both parties
Written contracts include clear identification of the parties and it is written down
Oral contracts are hard to prove and could be something as simple as purchasing something from the canteen
What are the elements of a contract?
Intention of both parties to create a relation, an offer by one party, the exception of that offered by the other party, consideration from the offeree, agreement
Terms of a contract
Conditions, warranties, express terms, implied terms
Exclusion clauses
These are clauses that exempt a party from liability and removes one parties liability if anything bad should happen
Standards implied by statute’s for contracts
Under the competition and consumer act 2010 there are many standards within contractual agreements such as they must be legal and safe and there are penalties and sanctions in place should some parties fail to comply with the terms.
Common law and statutory protection regarding contracts
Common-law involves court decisions by judges and how that provides legal protection to all parties have a contract such as Louth V Diprose pros whereby unwarranted duress found the contract unjust
Statutory protection involves the competition and consumer act covering standards of all parties involved in a contract such as them being legal and safe and penalties and sanctions being in place if non-compliance occurs
Role of regulation of marketing and advertising
- Statutory protection: this refers to statute law regulating marketing and advertising
E.g Section 18 of the ACL contains provisions providing protection against deceptive or misleading conduct
Section 35 of the ACL Protect consumers against bait advertising - Reardon V Morley Ford federal court found that a car dealership had breach section 35 and dust was sanctioned
- Nonstatutory controls on advertising: this includes the system of protection known as the advertising standards Baru and the advertising claims board where by they provide free complaint resolution services to the public and they publish reports, investigations and findings to the community to show them good businesses, license to businesses and business is with good advertising practices
Examine the role of occupational licensing in achieving consumer protection
This is a form of government regulation Requiring that some occupations have licenses so that high standards and ethical practices in all industries can be upheld it protects the consumers from and qualified or a legal professionals, trades persons and businesses.
- Self-regulation: this occurs when the professional lists with a body such as doctors self regulating themselves with the Australian medical Association, this is with the aim of insuring that all people working in a particular occupation a competent and professional.
- State regulation: this occurs when state parliaments and act laws and rules to regulate occupational licensing.
Motor dealers act 1974 NSW: activities regarding car dealers are governed and the law stipulates that dealers must be professional and not use bad business practices
Travel agents act 1986: this law means that all travel travel agents have qualifications and licenses and do not sell faulty products/trips
What is awareness and self-help? What are the statistics on awareness and self help?
Awareness refers to the consumer being aware of harmful products and options available for assistance and self-help refers to the consumer seeking assistance and complaining about bad products.
Only 4% of respondents looks for information about their rights as their first step after being scammed and exploited according to the Australian bureau of statistics 2018
47% of consumer respondents who experienced a problem reported that their problem had been resolved to the satisfaction according to the Australian bureau of statistics 2018
Redress – complaints to suppliers
Consumers can secret dress in the form of repair, replacement or refund by complaining to the supplier of the product. As per stature Tory protections when consumers contact suppliers and complain about a faulty or broken products they are entitled to redress.
Redress – complaints to manufacturers
Under the competition and consumer act 2010 manufacturers have an obligation to fulfil their express warranties and implied guarantees and as such consumers are able to contact them, complain about a product and seek redress in the form of spare parts, repair facilities, new products etc
This can sometimes be time-consuming and the aggrieved consumer may need to write to them
Remedies – from state government organisations
These are the various body is authorised by the NSW government that deal with consumer complaints and their role is to provide advice and sanction non-compliance.
- NSW fair trading: their role is to manage consumer laws and safeguard the rights of consumers, it provides legislative framework for compensation which is a remedy available to consumer when the state body sanctions of business. They also assist in awareness and they provide information through their app and hotlines.
- NSW ombudsman: this is the statutory body that deals with complaints against the NSW government, when people have complaints about services such as FACS the ombudsman is who they come to. They can receive remedies to the marginalised and normal people.
Remedies – from federal government organisations
These are Commonwealth agencies that deal with the regulation of industries and protect consumer rights and freedoms.
- The Australian securities and investment commission: this is an independent Commonwealth body that regulates Australia’s corporate and financial sectors, they provide licensing, education, information and reports. They have the legal power to enforce the corporations act 2001 and they can commence prosecutions of businesses
- Australian competition and consumer commission: this is an independent statutory body that administers the ACL, promoting fair trade. Their role is to ensure that businesses and individuals comply with laws and they can prosecute businesses and monopolies that harm the safety of consumers such as price-fixing practices and illegal cartel behaviours.
- The ministerial council for consumer affairs: this is a big national body that works with a group of ministers from Parliament, they insure consumer policy issues are developed and they communicate with the national community and educate society about fair business practices and remedies that can be available to them
