The Australian Consumer Law - Essay Example

Business law - s 18 of the Australian Consumer Law Within the Competition and Consumer ACT (ACL) Done By: Ghanima AL-Asfour VU ID: 3929137 ACK ID: 0804060 Question one The ACL (popular as the Australian Consumer Law) came active since January in the year 2011. It was the single law addressing national consumer protection. It also focused on replacing the previous Trade Practices Act through specifically setting out the customers’ rights that the manufacturers and suppliers were expected to meet. Such rights are commonly dispensed as the ‘consumer guarantees’. Neither individuals nor firms can avoid responsibility of meeting these consumer guarantees irrespective of having their operations online or not. This paper addresses the impacts and implementation of the ACL within the course of doing business. The ACL also presents several consumer guarantees within the terms of sale of goods (Morandin & Smith, 2011). Under it, suppliers have rights of selling any goods of their preference while such goods are accompanied by clear titles. The consumers will embrace undisturbed possession for the goods purchased and that such goods remain free from any undisclosed securities, encumbrances, or charges. The goods are to be of acceptable quality meaning that they will be safe, free from defects, and durable. They will have acceptable appearances and finishes as well as fitness for the purposes that they are supplied. The goods are to be reasonably fit to all disclosed purposes meaning that such goods continue performing the function for which consumers was informed they would (Carter, 2011). The goods will have to instil a correspondence with their description and the demonstration model or sample in terms of quality, condition, and state. The manufacturers will induce reasonably available facilities regarding repair of such goods as well as parts for goods. Lastly, the goods will have to be compliant with express warranties made or given, such as extra promises presented. Question two This aspect draws together key elements of the components in relation to the business interactions. It also draws much attention towards the extensive overlapping of deceptive conduct or misleading provisions through the vast forms of federal statutes. Currently, there are practical dangers that various business engagements such as green washing as it deter the consumers through the selection or purchase of green services or products (Mitchell & Greco, 2011). It is because most of them they feel an inability to trust assertions placed forth by retailers and manufacturers on the products and services. It could cause stifle across marketing and development opportunities for the companies that are genuinely green. The main regulatory question regards whether or not need exists to influence more control or in case of; of the existing laws have sufficiency in covering the green washing practice (Morandin & Smith, 2011). On the contrary, such new regulations or laws need careful attention due to their costs. It also accompanies a huge regulatory and compliance burden imposed across all the entities (Hiscock & Caenegem, 2010). In examining s 18 ACL as well as its statutory equivalents in federal law, there is an indication that the existing laws are equipped through the legislation of necessary tools towards dealing with such malpractices. Section 18 of the ACL have broad scopes and can be applied in control and mitigation of the practice trends and other forms of misleading behaviour. The existing laws serve in adequacy towards covering broad issues of such business practices without the essence of additional laws (Carter, 2011). However, for effective promotion of environmental services and products, there must continue active existing law enforcement by the state agencies. There are several principles enriched in the implementation of the ACL. One of them is transparency. The ACL regulators deal with traders and consumers through open and transparent procedures. This entails having traders and consumers understand the levels of expectations instilled within them and their expectations from regulators. Transparency takes two major aspects namely; compliance and enforcement (Miller, 2010). This takes place through appropriate processes of corporate governance through the constant review from appropriate tribunals, courts and agencies on public administration review (as with auditors-general and public service ombudsmen). The regulators ACL regulators are not required to make private arrangements as matters forwarded to enforcement action include matters that deal with litigation and formal resolutions made public (Hiscock & Caenegem, 2010). The other principle is that of confidentiality. Question three To be deceptive or misleading, a conduct needs to contain misrepresentation with a capability of inducing relevant error classes. Misrepresentations amount to false statements of the fact. Statements, which have factual truth, also encounter misrepresentations in times that they induce the consumers into a given error (Pearson & Batten, 2010). Relevant tests on whether such conduct is misleading or deceiving has a likelihood of misleading or deceiving the relevant classes. It does not subjective if this conduct has intensions of misleading or deceiving, or is reckless or negligent on whether they deceive or mislead. In a number of events, it is necessary to illustrate that people doing such acts did have intension of misleading or deceiving. For instance, its application is evident when a person merely passes on information (Pearson & Batten, 2010). Further, silence also falls in as misleading in particular conditions. In cases where there needs to be the responsibility across parties on a common law basis in disclosing facts, failure to achieve this is a misleading conduct. Even though there are elements of common law in duty of disclosure, silence from a party under the attention of all related conditions may be categorized as a misleading conduct (Miller, 2010). Mere silence does not amount to misleading conduct until there are reasonable expectations on when people need to disclose certain facts. While relevant conduct represents the future (unlike a representation for present facts), according to the ACL, the conduct is taken as misleading while people making it do not show reasonable grounds. In such situations, the representations of the future can be termed as misleading while burden of proof is bestowed on persons who make these representations produce evidence showing that they embrace reasonable grounds. Question four A limitation exists for a period of six years for the actions on damages with respect to section 236. The court has power to prohibition of payment and transfer of monetary benefits or other forms of property where proceedings commence against an individual for offences against provision of the section. It also engages application made through section 80 regarding diverse injunctions against people with respect to contravention for provision in the ACL (Latimer, 2012). It is important and desirable to achieve all this through the main purpose of preserving money and other forms of property held on behalf of people referred while the case is in procession. The loss or damage measurement here is rather different to measures for damages in section 82. Part of cases suggests that while section 87 does not focus on the recovery of monetary loss, the measure needs to be broader. The major principles for managing and handling complaints, as well as business intelligence through the ACL, bring about compliance by the traders for extensive ACL breaches. The principles applicable to enforcement and compliance action include the obligation of the traders in complying with ACL as well as the private rights for action among the consumers and traders of the ACL (Carter, 2011). The government has a national responsibility to act across all state territories. The state and territory regulators have the liberty of acting in their own jurisdiction, as explained by their own legislations. The circumstances vary across various ACL regulators and jurisdictions with variant priorities according to their basic jurisdiction (Pearson & Batten, 2010). It means that ACL regulators take different actions on compliance and enforcement from one time to another. This reflects co-ordination across the regulators in taking action for the particular jurisdiction and reflecting on the priorities. They focus on specific jurisdiction as compared to inconsistencies in the application of the law. The ACL regulators actively participate in decision making through establishing arrangements for the enhancement of consistency, co-operation, and co-ordination among various ACL regulators (Mitchell & Greco, 2011). There is an agreement to continue producing annual reports on ACL compliance and enforcement. Question five The application of the provisions calls for utmost accountability. The ACL regulators are directly responsible and accountable for their activities in compliance and enforcement. Such specific mechanisms vary across jurisdictions with respect to the public administration, regulator-enabling legislations as well as the governmental, agency, and codes of conduct departmental (Morandin & Smith, 2011). The levels of national awareness among the ACL regulators allows them make decisions sensitive to the national actions implication among public interests. The state, territorial, and regional compliance priorities ensure that markets develop regard to broader national environments. The approach also promotes regulator independence. The ACL has multiple regulators where each of them is independent and has an enabling legislation as well as exercise to functions and powers (Malbon & Nottagem, 2013). The ACL regulators put in systems towards the creation of national approaches to enforcement and compliance. They agree that there is a need to embrace due regard to the document on compliance and enforcement. It also focuses on regular consultations and communication of priorities and markets on issues of compliance and enforcement. Question six Enquiries of investigations and complaints are addressed through appropriate requirements of legal privacy regarding jurisdiction and in accordance with each specific policy and procedure of the regulator. Regulators focus on balancing confidentiality requirements as well as the essence of informing the public in the interest of the public interest. Timeliness is the other concern in policy implementation. Dispute resolution, complaint handling, enforcement matters resolution, and the investigation processes are to be conducted in efficiency (Morandin & Smith, 2011). This helps in avoiding business uncertainty and costly delays while minimizing the detriment of consumers while taking advantage of the effectiveness for such activity. Proportionality also promotes fairness in implementation. The enforcement actions need direct proportions to the consumer detriment levels as well as the seriousness in times of a breach. The serious offences (including involvement in deceit, unconscionable conduct or dishonesty; potential for injury or death; vulnerable groups targeting; wilfully conduct repeated; significant business integrity impacts; and acts resulting in the broader consumer detriment result, in serious actions, in enforcement (Morandin & Smith, 2011). ACL regulators make effective use of limited resources targeting traders and issues across the risks both new and emerging realms to enforce priorities. On a yearly basis, the ACL regulators undertake targeted and coordinated activity on limited projects. The regulators may make public reference to the appropriate national projects. Question seven One of the remedies in this case includes fines. Section 18 does not avail any pecuniary penalties for a breach. On the other hand, for breach of most of the related Australian Consumer Law provisions in seeking penalties of close to $220,000 from individuals and $1.1 million across corporations. The other form of remedy is through damages. Victims of deceptive or misleading conduct are entitled to payment of damages (through, monetary compensation) in case they suffered damage or loss resulting from the conduct (Mitchell & Greco, 2011). The absolute measurement of damage or loss is mostly on the similar scales as in tort law or contract law. In several section of the CCA, as introduced back in 2004, if victims contribute to such loss and damage in which they suffer, the court reduces the sum of damages to be awarded. For similar fashions to damages reduction in negligence claims, while plaintiffs are guilty for contributory negligence, the same is applicable (Carter, 2011). On the other hand, person engaging in such conduct with intensions of misleading or deceiving, or commit fraud through their conduct, the courts are not in a position of reducing such damages. Question eight According to the interpretations of the ACL notion, social responsibility for corporate entities requires that corporations go past the economic and legal conditions attached to it. The corporation engages taking into consideration some of the expectations of the suppliers, consumers, shareholders, the planet and their communities. In fact, they only seek motivation through altruism but also through self-interests while adopting similar methods as advantageous to the firm. For example, it is beneficial to the perception of socially responsible entities as it enhances their reputation. Positive corporate reputation is viewed as open of the ‘intangible assets’ as well as fundamental strategic advantage sources towards the development of the long term ability for the company in creating value. In the end, many of the companies solicit the development of their respective performance in their environment while there are illustrations suggesting that the strategies come in handy in the building of the corporation’s reputation (Lewis, 2011). The financial performance element becomes relevant while consumers’ interest towards green products is increasing. States have power of making laws regarding consumer protection issues within the territorial power enshrined in section 122. Through the Australian Constitution, Commonwealth nations do not endorse constitutional liberty of making laws on consumer protection even though they make laws regarding the conduct of firms as well as the interstate trade activities. The consumer framework is relevant to the acts of corporations as well as the suppliers and to the transactions, occurring within the State borders (Pearson & Batten, 2010). The Commonwealth also makes various consumer protection provisions with respect to financial services and products on the basis of referrals for legislative competence across the States setting out the Corporations Agreement of 2002. Number of References Carter, J. W. 2011. Contract and the Australian Consumer Law: A Guide. New York: Lexis Nexis Butterworths. Hiscock, M. E., Caenegem, W. 2010. The Internationalisation of Law: Legislating, Decision Making, Practice and Education. New York: Edward Elgar Publishing. Latimer, P., 2012. Australian Business Law 2012. New York: CCH Limited. Lewis, A. K. 2011. Unfair Terms Provisions in the Australian Consumer Law: A Codification of Common Law Principles. New York: Monash University. Malbon, J., Nottagem, L., 2013. Consumer Law and Policy in Australia and New Zealand. New York: Federation Press. Miller, R. V., 2010. Millers Annotated Trade Practices Act: Australian Competition and Consumer Law : 2010. New York: Thomson Lawbook Company. Mitchell, C., Greco, R., 2011. The Australian Consumer Law: The Impact on Law Firms and Obligations of Practitioners. New York: Law Society of South Australia. Morandin, N., Smith, J. 2011. Australian Competition and Consumer Legislation. New York: Limited. Pearson, G., Batten, R., 2010. Understanding Australian Consumer Credit Law: A Practical Guide to the National Consumer Credit Reforms. New York: CCH Limited. Read More