On 14 October 2016, Consumer Affairs Australia and New Zealand (CAANZ) presented the Interim Report on the Australian Consumer Law (ACL) Review. The Interim Report follows the ACL Review Issues Paper, released in March 2016, which attracted more than 160 submissions from a range of industry associations, consumer groups, not for profits and legal/academic professionals. AADA made a submission to the Issues Paper, a PDF of which can be downloaded from our website.

The ACL is jointly administered and enforced by Federal, State and Territory regulators, and is being reviewed by officials from these regulators through CAANZ. AADA Policy Director, Michael Deed and Policy Officer, Daniel Brown attended a briefing session in Brisbane on 21 April 2016 with officials from the Australian Government Treasury and the Office of Fair Trading Queensland.

The ACL review covers four major areas:

• Consumer policy in Australia.
• The legal framework of the ACL.
• Administering and enforcing the ACL.
• Emerging consumer policy issues.

Readers of the May 2016 Issue of Automotive Dealer Magazine will recall an article written by AADA Company Secretary and Legal Counsel, Vinesh George, which examined the issues and implications of the ACL Review for Dealers. The three aspects of the review were identified as:

• the review will assess the effectiveness of the provisions of the ACL, whether these provisions are operating as intended, and address the risk of consumer and business detriment at an appropriate level of regulatory burden
• the review will also consider the extent to which the national consumer policy framework has met the objectives articulated by the Council of Australian Governments (COAG)
• the review will assess the flexibility of the ACL to respond to new and emerging issues to ensure it remains relevant into the future as the overarching consumer policy framework in Australia.

Reading this article is recommended for Dealers seeking further information on the overall review of the ACL. This article can be viewed in full at http://aada.asn.au/australian-consumer-law-review-a-dealers-perspective/.

‘Lemon laws’

Of most interest to Dealers from the Interim Report was the stakeholder concern for laws regarding the sale of new motor vehicles, specifically the calls for the introduction of ‘lemon laws. AADA has advocated strongly against the introduction of ‘lemon laws’; however this view made up the minority, as numerous submissions were received calling for the introduction of ‘lemon laws’ under the ACL. One such submission from Legal Aid NSW supported the motor industry-specific laws together with the reversal of the onus of proof, thereby requiring the Dealer to prove the alleged fault did not exist at the time of the vehicles supply or delivery.

The Report did note AADA’s concerns that industry-specific regulation is unwarranted as it is not possible to draft a definition that provides sufficient certainty for consumers, businesses and Tribunals as to the problem intended to be addressed. AADA, along with the state MTAs, also noted the ACL already provides substantial remedies and the proposed ‘lemon laws’ present a significant threat to the industry’s already small profit margins.

CAANZ’s response stated:

• CAANZ notes the wide range of stakeholder views on this issue, as well as the many benefits provided by having a nationally consistent, generic consumer law.
• Generally, industry-specific regulation would only be preferable to a generic approach where it can be demonstrated that there are issues particular to that industry, and that generic approaches would not adequately address the problem.
• CAANZ observes that while white goods and motor vehicles were the focus of many submissions, issues with defective goods do not appear to be limited to those industries. Also, it is not clear that an industry-specific law would address the issues raised any more effectively than through generic enhancements to the consumer guarantees.
• CAANZ notes that even if the case cannot be made for an industry-specific approach to legislative changes at this time, CAANZ will continue to monitor this issue as well as the need for industry-specific compliance, enforcement and education activities. This may include regulators working with the specific industries to improve compliance levels; for example, through best practice or codes of conduct with regard to providing refunds.

Responding to the ACL Interim Report

The Interim Report is available to read at https://cdn.tspace.gov.au/uploads/sites/86/2016/10/ACL_Review_Interim_Report_v2.pdf.

Feedback from the Interim Report will influence the Final Report that will be presented to the Legislative and Governance Forum on Consumer Affairs in March 2017. AADA will continue to inform and advocate on behalf of Dealers throughout the ACL Review.