AUSTRALIAN CONSUMER LAW REVIEW

The Australian Consumer Law (ACL) – a single generic consumer protection law that applies across Australia – commenced on 1 January 2011. This is the first review since the law was implemented and applies to OEMs and Dealers in terms of consumer rights in respect of products sold and services provided.

The ACL  is jointly administered and enforced by federal, state and territory regulators, and is being reviewed by officials from these regulators through Consumers Affairs Australia and New Zealand (CAANZ). AADA Policy Director, Michael Deed, and Policy Officer, Daniel Brown, attended a briefing session in Brisbane on April 21 with officials from the Australian Government Treasury and the Office of Fair Trading, Queensland.

AADA will make a submission to Treasury on the Issues Paper. An interim report is expected to be released in the second half of 2016, requesting more public feedback on the issues and options.
This magazine also contains an article by Vinesh George on issues directly affecting Dealers.

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.

Consumer policy in Australia

Consumer policy ensures that consumers benefit when they can confidently participate in markets where businesses trade fairly. It also stimulates competition, which in turn leads to better services, more choice and lower prices. This seems at odds with the Government policy announcement to allow personal importation of motor vehicles, estimated by the Government to be at least 30,000 vehicles per year.

The issues paper acknowledges that Australia’s national consumer policy framework operates in an ever-changing market landscape and is shaped by factors such as:

  • rapid technological change
  • trade liberalisation, and
  • changing consumer preferences.

The overarching objective of the consumer policy framework is to improve consumer wellbeing through consumer empowerment and protection; to foster effective competition, and to enable the confident participation of consumers in markets in which both consumers and suppliers trade fairly.

The legal framework

The terms of reference require the ACL review to assess the effectiveness of the provisions of the ACL, whether these are operating as intended, and address the risk of consumer and business detriment at an appropriate level of regulatory burden.

A number of issues have been identified, including:

  • meaning of ‘consumer’
  • misleading or deceptive conduct
  • unconscionable conduct
  • unfair contract terms
  • false or misleading representations
  • unfair practices
  • consumer guarantees including lemon laws
  • acceptable quality of products
  • unsolicited selling agreements
  • warranty against defects, and
  • product safety.

All of the above issues are relevant in the business environment in which Dealers and manufacturers operate.

Administering and enforcing the ACL

The terms of reference require the review to assess whether the existing institutional, administrative and regulatory structures underpinning the ACL, such as the ‘multiple regulator’ model, and the coordinated enforcement, education, policy, research and advocacy approach of the federal, state and territory governments, are effective and efficient in supporting a single national consumer policy framework.

Emerging consumer policy issues

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.

Some issues identified include:

  • selling away from business premises
  • online shopping
  • price transparency
  • comparison shopping
  • online reviews and testimonials
  • the ‘sharing’ economy
  • consumer access to data, and
  • disclosure requirements.

Lemon laws will be high on the agenda in the review of the ACL.

If lemon laws were to be introduced into the ACL, they should provide a degree of protection for manufacturers and the Dealer caught in the middle against unscrupulous consumers who decide they no longer like the vehicle or operate it for purposes and in circumstances other than for what it was designed.
It is important to note that, under the ACL, Dealers are not given the same protection for unfair contracts and unjust conduct as contained in Part 6 of the Motor Dealers and Repairers Act 2013 (NSW).

Submissions are required to be lodged by Friday, 27 May and any contributions can be emailed to AADA Policy Director, Michael Deed (mdeed@aada.asn.au).

1The ACL is Schedule 2 of the Competition and Consumer Act 2010 (Cth). Each state and territory has enacted legislation to apply the ACL as a local law through the: Fair Trading (Australian Consumer Law) Act 1992 (ACT); Fair Trading Act 1987 (NSW); Consumer Affairs and Fair Trading Act (NT); Fair Trading Act 1989 (Qld); Fair Trading Act 1987 (SA); Australian Consumer Law (Tasmania) Act 2010; Australian Consumer Law and Fair Trading Act 2012 (Vic); and Fair Trading Act 2010 (WA).
2Intergovernmental Agreement for the Australian Consumer Law (2 July 2009), paragraph C, www.coag.gov.au/sites/default/files/IGA_australian_consumer_law.pdf.

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