role of the law in encouraging cooperation and resolving conflict in regard to consumers Flashcards
what is the role of the law in encouraging cooperation and resolving conflicts
- serves to create a structured environment where both consumers/businesses can operate with a mutual understanding of rights/ responsibilities.
- This structure encourages cooperation by providing clear guidelines on acceptable practices, which reduces the likelihood of conflicts.
- When disputes do arise, the law offers formal mechanisms for resolution, such as courts and arbitration, which ensure that conflicts are addressed fairly and efficiently.
- Additionally, the law enforces standards that promote fair competition and prevent deceptive practices, thus maintaining trust in the marketplace.
- Overall, the legal framework helps balance interests, protect parties from unfair treatment, and ensure a stable and predictable market environment.
main law to talk about in intro -
The ACL is a national law to protect consumers. The Australian Competition and Consumer Commission (ACCC) alongside the state and territory consumer protection agencies jointly administer the ACL. ACL applies to anyone conducting business in Australia, this can include businesses that are overseas.
- Fair trading act as well promotes fair trading between competitors while also ensuring that consumers are treated fairly.
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what are state gov organisations- NSW FAIR TRADING
State government organisations such as the NSW Fair Trading has been a highly effective form of redress for consumers, that consequently balances the needs of consumers /businesses by providing adequate remedies.
The NSW Fair Trading organisation is administered under the Department of Customer service and their role includes: to manage consumer laws, safeguard’s the rights of consumers and advise businesses and traders regarding fair and ethical practice.
Consumers can contact NSW fair trading for information on their rights and responsibilities and for the resolution of disputes. > ACCESSIBLE
- investigates allegations of unfair business practices, and regulates goods sold in New South Wales.
- Their focus is to create a fair, safe and equitable marketplace in NSW
How they provide redress to consumers:
- They have a website that is highly accessible and provides a myriad of information allowing consumers to contact and be informed regarding multiple issues surrounding consumer law and procedures
Online tools page: complaints register, licence checks for services such as home builders and conveyancers
Updates page: informs customers about updates in laws, public warnings, and media releases – e.g. COVID
- accessability - Universal Declaration of Human Rights (UDHR) ARTICLE 8 :Guarantees the right to an effective remedy by competent national tribunals for acts violating fundamental rights.
Contacts page: to make enquiries, complaints- Have also released YouTube video clips on consumer rights in 11 different languages to increase accessibility to new migrants.
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the fair trading complaints register introduced in 2016 - positive of state gov organisation - the idea of it - the stats to back up
By establishing guidelines for the Complaints Register, businesses are made aware of the standards expected of them and the consequences of not meeting these standards.
Poor customer service or not responding adequately to a consumer complaint will be grounds for a business to be named and shamed online under guidelines released for the first government-backed NSW Complaints Register.
- significantly strengthens the arm of Fair Trading, which has previously had to wait for a tribunal decision against a rogue trader before publicly warning other consumers.
Consumers are given a more prominent role in monitoring and reporting poor service, effectively participating in the regulation process. This collaborative approach between consumers and regulatory bodies helps in maintaining high standards of customer service.
from 2016-2017 - the fair trading complaints register was able to handle over 45,000 complaints and about $20.5 million in community grants
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the fair trading complaints register introduced in 2016 - positive of state gov organisation - the case + quotes
Minister for Innovation and Better Regulation:
“The register will not only ensure that citizens are empowered to make informed decisions, it will ensure that traders take full accountability for the goods and services they provide.”
“Knowing the business name, number of complaints and the product or service that has caused the problem will help consumers avoid falling victim to the usual suspects”
RESPONSIVENESS TO CONSUMERS BY ENFORCING DETERENCE THROUGH PUBLICITY
Case Study from Register: Android Enjoy and Camera Sky:
For four consecutive months in the first half of 2018, Android Enjoyed was the most-complained about company on the NSW Fair Trading list, with CameraSky not far behind.
NSW Fair Trading received 637 consumer complaints about Android Enjoyed and Camera Sky in 2017-2018. The company was ordered to pay 3.15 million in fines by the Supreme Court after it failed to deliver its products to consumers across Australia. –> this resolved the issue for multiple australians instead of having to go to court themselves AND AND AND MADE IT BETTER FO RESORUCE EFFICIENCY OF THE COURTS
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negatives of the fair trading complaints register
However, the register has long been subject to criticism, with some arguing it unfairly targets larger, franchised businesses, and that it fails to account for complaints that have been resolved.
- “The register will simply be full of franchises and groups who, due to the popularity of their brand and their sheer size, will almost always have 10 consumer complaints per month,” REINSW president John Cunningham told Fairfax Media last year.
-Ray White, the largest real estate group, argued that with more than 280 offices in NSW, it received an average of 0.05 complaints per office in July, while 11 of the 15 complainants on the July register did not contact Ray White the franchisor before approaching Fair Trading.
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Federal Government Organisations - ACCC
The Australian Competition and Consumer Commission (ACCC) is an independent Commonwealth statutory authority whose role is to enforce the Competition and Consumer Act 2010 and a range of additional legislation, promoting competition, fair trading and regulating national infrastructure for the benefit of all Australians
One of many consumer areas ACCC resolves conflicts in regard to consumers is by addressing, governing and ensuring products comply to standards by issuing them the power to police the matter.
prompts just outcomes for consumers to a great extent as the ACCC’s role in ensuring compliance with industry standards protects consumers as they often do not have the necessary knowledge to evaluate the quality of goods themselves.
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cases w ACCC
highlighted by ABC’s “Optus ordered to pay $6.4 million over misleading NBN disconnection email to customers” (2nd December 2019), the “watchdog” (ACCC) “had concerns” about Optus due to its repetitive behaviour. The ACCC has taken Optus to court five times and issued 29 infringement notices over the last decade, yet despite penalties the business continues to breach consumer laws and deceit customers, showcasing a careless and non-compliant attitude that is seen in many Australian businesses.
ACCC v Woolworths 2016
Australia’s largest supermarket chain – Woolworths, incurred a $3 million penalty for selling faulty home-brand goods that injured consumers.
Case highlights the ability of ACCC to ensure influential companies do not override the law comply to national standards and most importantly balance the needs of consumers adequately
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THE WEBSITE effectiveness - ACCC PARA
the ACCC has provided the use of its Product Safety Website which has been pivotal to upholding justice for consumers by enabling them recognition and accessibility to critical information preventing them from being misled and harmed.
powerful tool in highlighting and publicising consumer safety issues.
effectiveness lies on its ability to upload daily accessible media articles that identify products recalled to ensure customers are informed about hazardous products.
each of the product recall media articles, such as Woolworth’s recalled ‘Cooked and Peeled Prawns’(2020), Subaru Additive Fuel (2024) the ACCC identifies the ‘defects of the product’, ‘what the hazards are’ and ‘what the consumer should do’.
Effectiveness of the website is limited as it is dependent on the awareness of consumers actively using the website
Without doing so, consumers justice is weakened as they are left uninformed to hazardous recalled products such as the uprise of deadly children products
recalls of children products rose by 88 per cent between 2011 and 2017. (positive)
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international - ACCC
The effectiveness of the ACCC can also be highlighted by their ability to ensure international companies do not override the law and comply to national standards.
ACCC v Google LLC 2020, whereas the Federal Court had found that Google had misled users about personal location data collected through Android devices from January 2017 to December 2018.
- As outlined by the ABC (“Google deceived some Australian mobile users about collection of location data” – 16th April 2021), the case was an “important victory for consumers”
- it acknowledged the recent advancements in technology and digital contracts.
- ACCC Chairman Rod Sims had commented that the case “sent a strong message” to big businesses such as Google to be “upfront” with consumers so they are not “kept in the dark” when it comes to the collection of their personal data.
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negatives
the role of the law and independent statutory comissions tend to lack sometimes however as they dont enforce and push for the necassary things that need to be enforced. – BANKING ROYAL COMISSION
2021: only 35 out of the 76 recommendations have been passed
spokesperson of Australian Lawyers Alliance: “disappointing lack of progress after two years”.
Gerard Brody, CEO of Consumer Action Law Centre: government was “just walking away from some of the core recommendations” and upon responsible lending, “the government has walked that one backwards”.
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tribunals - NSW civil and administrative tribunal
The introduction of the NSW Civil and Administrative Tribunal in 2014 has been highly effective in protecting and enforcing the rights required by consumers by providing an avenue that is accessible to all.
The Civil and Administrative Tribunal Act 2013 (NSW) governs the operation, functions and powers of the NSW Civil and Administrative Tribunal (NCAT).
Its purpose is to ensure accessibility, efficiency and an effective court. It meets the need of society by allowing proceedings to be determined in an informal, expeditious and inexpensive manner while ensuring the quality and consistency of the Tribunal’s decision making to make various order that redress consumer dissatisfaction.
Its implementation and nature as a ‘super tribunal’ represents law reform as it replaced the 22 tribunals and bodies, including the Consumer, Trader and Tenancy Tribunal in 2014.
The tribunal can make a range of orders of up to $40 000 regarding consumer claims that are under the Fair Trading Act 1987 (NSW):
for the supplier to pay money to the consumer, including a refund
for the consumer to return goods or goods to be collected by the supplier
for the supplier to repair or replace goods
to relieve a consumer from paying the supplier
that the consumer pay money owing to the supplier (if the consumer is not successful).
Provide postives of the NCAT
NCAT Annual Report 2019-2020
2% increase in the overall number of applications received by the Tribunal in 2019-2020 compared to the previous year. Significant increases were experienced in the Occupational Division with an 18.7% increase, and the Guardianship Division with a 9.7% increase.
Despite the effects of COVID, NCAT had a clearance ratio of receiving and finalising application in 2019-2020 of 95.6% reflecting its success in increasing the accessibility of the law to resolve disputes and seek redress instead of progressing to courts.
From July 2019 to February 2020, hearings were held in 70 locations across NSW with 30% of hearings in regional areas
Responsiveness to COVID:
From March 2020, NCAT transitioned to almost 100% of matters being held virtually via telephone or video conference in correspondence to the community’s safety and in allegiance with the COVID-19 Legislation Amendment (Emergency Measures) Act 2020
In April 2020, the Division was given the capacity to convene ‘virtual hearing rooms’ by telephone or video conference. The virtual hearing rooms are particularly suitable for Division matters, and many of the matters originally adjourned have been heard and determined using the technology.
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provide positive case studies ot back up the NCAT
NCAT can decide anti-discrimination complaints referred to it by the Anti-Discrimination Board. Anti-discrimination cases are managed through NCAT’s Administrative and Equal Opportunity Division.
Case: Masters v Reserve Hotels Pty Ltd 2020
Mr Masters and Mr Clothier lodged a complaint with the Anti-Discrimination Board against the owner of Mr B’s, a hotel and restaurant in the Sydney CBD, and the company which supplies security guards to those premises.
The complaint alleged that Mr Masters and Mr Clothier were refused entry to Mr B’s by a security guard, who told them the hotel was ‘not mixing crowds’, and that ‘it’s Asian night’.
Mr Masters is a Wiradjuri man, and Mr Collier is of Caucasian ethnicity.
The Tribunal found that the complaint was substantiated. The Tribunal was satisfied that the security guard treated the applicants less favourably that he would have treated a person of a different race, being a person of Asian appearance.
The Tribunal held that the incident could not be ‘regarded as a trivial or insignificant case of race discrimination’ and ordered that both applicants be awarded $7,500 in compensation. The Tribunal was also of the view that Mr B’s should be required to make an apology, and invited submissions as to what form it should take.
NCAT can review certain decisions made by the Commissioner of Victims Rights under the Victims Rights and Support Act 2013.
Case study:
In 2020, five women of Yazidi ethnicity alleged that in 2014 they were each subjected to a series of acts of violence at the hands of an Australian man in Syria and Northern Iraq.
The women now live in countries which have accepted them as refugees.
In July 2018, the women applied for recognition payments and counselling under the Victims Rights and Support Act 2013.
The application, and subsequent internal review, was dismissed on the basis that none of the acts occurred in New South Wales.
The applicants sought administrative review of the dismissal in the Tribunal under section 51 of the Victims Rights and Support Act. The Tribunal dismissed the application for administrative review.
It held that the correct and preferable decision was that the applicants had no entitlement to support from the Victims Support Scheme under the Victims Rights and Support Act, because they were not the victims of an act of violence in and of New South Wales.
NCAT failures
NCAT’s Limitation: NCAT is unable to adjudicate/resolve disputes involving parties from different states, causing frustration and uncertainty among landlords, tenants, and agents in NSW
limitation on NCAT’s jurisdiction originates from the decision in the case Burns v Corbett; Gaynor v Burns [2017] NSW
Mr. Garry Burns filed a complaint under the Anti-Discrimination Act 1977 with NCAT, alleging homosexual vilification by residents from Queensland and Victoria. NCAT initially ruled in Burns’ favor, determining that breaches of the Anti-Discrimination Act had occurred.
The respondents appealed to the NSW Court of Appeal. The Court of Appeal ruled that NCAT did not have the jurisdiction to make such orders against residents of other states.
The court reasoned that while the judicial power of the Commonwealth can be delegated to state courts, it cannot be exercised by non-courts such as NCAT.
