Topic 9: Dealing with Consumers_ General Protections
<Australian Consumer Legislation: Protecting consumers>
# The Australian Competition and Consumer Act 2010 (Cth), is Federal legislation (Statue law, made by Parliament), which
means it is a law whose previsions apply uniformly through Australia #
Why protect consumers?
- Consumers are seen to be entitled to additional protection under Australian law because when dealing with a
business thy are usually at a disadvantage
General rule:
o Seek 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 consumers (most important way, quality – s 54),
- Prohibiting certain types of conduct by businesses (cannot be misleading – s 18),
- 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
Reasons why consumer need protections:
1) Power
2) More experience
3) Access to resources
# Of business #
<Dealing with consumers>
Consumer protection regulation
# The Australian Consumer Law (ACL) is a Schedule to the Competition and Consumer Act 2010 (Cth) #
The ACL protects consumer by prohibiting:
- Misleading or deceptive conduct generally,
- Unconscionable conduct,
- Unfair terms, and
- Various specific forms of prohibited conduct
, Meaning of “consumer”
Section 3 – A person is defined as a consumer if: the goods or services acquired are:
(i) $40,000 and under (usage)
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 manufacturer
(ii) Above $40,000 (type of good -> “ordinary person”)
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 manufacturer
# Commercial use X
Example:
Car (> $40,000) -> consumer contract / everyone
Tractor (< $40,000) /, but (> $40,000) X farmer only!
Exceptions:
- Re-sell
- Purchase at auction
- Transform in manufacture (eg, buys part for installation, bike)
# Not applying in exam
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 is much wider than that available at common law for
misinterpretation or breach of contract
# ACCC v Telstra
(disclaimer did not prevent Telstra’s conduct from being misleading or deceptive)
# Fair business transaction – trust among customer #
The section can be relied upon not only by consumers but also by interest members of the public and by other businesses,
including competitors
# Eveready Australia Pty Ltd v Gillette
(E take action against G’s conduct – for misleading and deceptive battery)
<Australian Consumer Legislation: Protecting consumers>
# The Australian Competition and Consumer Act 2010 (Cth), is Federal legislation (Statue law, made by Parliament), which
means it is a law whose previsions apply uniformly through Australia #
Why protect consumers?
- Consumers are seen to be entitled to additional protection under Australian law because when dealing with a
business thy are usually at a disadvantage
General rule:
o Seek 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 consumers (most important way, quality – s 54),
- Prohibiting certain types of conduct by businesses (cannot be misleading – s 18),
- 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
Reasons why consumer need protections:
1) Power
2) More experience
3) Access to resources
# Of business #
<Dealing with consumers>
Consumer protection regulation
# The Australian Consumer Law (ACL) is a Schedule to the Competition and Consumer Act 2010 (Cth) #
The ACL protects consumer by prohibiting:
- Misleading or deceptive conduct generally,
- Unconscionable conduct,
- Unfair terms, and
- Various specific forms of prohibited conduct
, Meaning of “consumer”
Section 3 – A person is defined as a consumer if: the goods or services acquired are:
(i) $40,000 and under (usage)
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 manufacturer
(ii) Above $40,000 (type of good -> “ordinary person”)
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 manufacturer
# Commercial use X
Example:
Car (> $40,000) -> consumer contract / everyone
Tractor (< $40,000) /, but (> $40,000) X farmer only!
Exceptions:
- Re-sell
- Purchase at auction
- Transform in manufacture (eg, buys part for installation, bike)
# Not applying in exam
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 is much wider than that available at common law for
misinterpretation or breach of contract
# ACCC v Telstra
(disclaimer did not prevent Telstra’s conduct from being misleading or deceptive)
# Fair business transaction – trust among customer #
The section can be relied upon not only by consumers but also by interest members of the public and by other businesses,
including competitors
# Eveready Australia Pty Ltd v Gillette
(E take action against G’s conduct – for misleading and deceptive battery)
