Week 9 Everything Flashcards
Australian Competition and Consumer Act 2010
The Australian Competition and Consumer Act 2010 (Cth), is Federal legislation (Statute law), which means it is law whose provisions apply uniformly (in the same way), throughout Australia. The ACL is a Schedule of that Act. The Act deals with many aspects of the way business is conducted in Australia – competition, fair trading and consumer protection being just some of those aspects. The part of that Act being dealt with here is that which deals with the protection of consumers and is contained in the ACL.
AUSTRALIAN CONSUMER LEGISLATION: Why protect consumers?
Consumers are seen to be entitled to additional protection under Australian law because when dealing with a business they are usually at a disadvantage. The traditional rules of contract law offer little assistance to a consumer who is disadvantaged because of this inequality of bargaining power: the general rule is caveat emptor. Consumer protection legislation [ACL], seeks to address the fundamental imbalance in bargaining power between business and consumers.
Examples of consumer protection:
Implying additional terms into certain contracts to protect the consumer
Prohibiting certain types of conduct by businesses
Closely regulating certain types of transactions with consumers, such as those involving the handling of consumers’ personal information.
Applying significant criminal and civil consequences for businesses that are found to have contravened consumer protection laws, as well as the possibility of unwelcome media attention.
The ACL protects consumers by prohibiting:
Misleading or deceptive conduct generally,
Unconscionable conduct,
Unfair terms
Various specific forms of prohibited conduct.
The ACL is administered and enforced by the
The ACL is administered and enforced by the Australian Competition and Consumer Commission (ACCC) and by the various State and Territory consumer protection agencies.
Section 3 A person is defined as a consumer if: the goods or services acquired are:
[i] $40,000 and under and
[ii] Above $40,000
and
[i] $40,000 and under and
the goods or services have not been acquired for the purpose of re-supply or they are not being used up or transformed in a process of production or manufacture.
[ii] Above $40,000
and
The goods or services are of a kind normally used for household use and They have not been acquired for re-supply, or They are not being used up or transformed in a process of production or manufacture.
AUSTRALIAN CONSUMER LEGISLATION: Misleading or deceptive conduct
Section 18: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. In establishing a breach of the section, the intention of the business is irrelevant. Liability cannot be avoided by use of a disclaimer. The range of remedies provided by the ACL for breach of this section is much wider than that available at common law for misrepresentation or breach of contract. The section can be relied upon not only by consumers but also by interested members of the public and by other businesses, including competitors.
The section can be relied upon not only by consumers but also by interested members of the public and by other businesses, including competitors:
Eveready Australia Pty Ltd v Gillette
Australia Pty Ltd [1999] FCA 1824
AUSTRALIAN CONSUMER LEGISLATION: Misleading or deceptive conduct
An action for contravention of s 18 ACL may be brought in conjunction with, or as an alternative to, an action for:
An action for contravention of s 18 ACL may be brought in conjunction with, or as an alternative to, an action for:
Negligence
Passing off
Defamation
Breach of contract
Misrepresentation
Section 18 Requirements:
Meaning of ‘person’:
Meaning of ‘trade or commerce’:
Meaning of ‘person’:
The reference to ‘person’ means this term includes individuals and corporations.
Meaning of ‘trade or commerce’:
Conduct that takes place in a non-commercial context (not in trade and commerce), will not be in breach of section 18.
