Australian Consumer Laws - Coursework Example

Introduction: Over the last three years, Australia has seen a significant change in its consumer laws. One of the laws introduced is the Australian consumer laws, and this law is important because it identifies and guarantees the rights of customers in Australia. These rights include the right to replacement, repair, or even refund money, in case the product under consideration does not meet the set up requirements (Wiseman and Backstrom, 2012). One of the major provisions in this law that effectively protects citizens of Australia is s 18 of the law, that prohibits misleading and deception conducts by business organizations, towards consumers. This paper is an analysis of the Australian consumer laws, and it specifically concentrates on section 18 of the ACL law. Q. 1: The application of ACL in Australia: The ACL is a uniform legislation aimed at protecting consumers in Australia. This law applies to the Commonwealth of Australia, and to every territory and state that belongs to Australia. Section 10 of the ACL act denotes that this law is applicable to all the territories and states of Australia (Sovern, 2014). It is important to denote that the general provisions contained in the ACL are found in the defunct 1974 trade practices act. However, some additional provisions are contained in the ACL, which are not found in the 1974 trade practices law. Applying this law to all the territories and states of Australia is beneficial because it helps to promote consistency between various jurisdictions found in Australia (Wiseman and Backstrom, 2012). This is also easy for the Federal Parliament to make amendments to the provisions that will affect various territories and states in Australia. This is without the parliament of these states debating on the applicability of the law amended, and its application to the jurisdiction under consideration (Sovern, 2014). These laws are very important to consumers in Australia, and this is because they protect the consumers against exploitation by business men (Sovern, 2014). This is because a consumer has a right to seek for refund, repair, as well as a replacement of a product that does not satisfy his or her requirement. For instance, s 18 of the ACL law protects consumers against any misleading information concerning the quality of a product. In case of a breach of this law, the consumer has a right of refund of the products bought (Sinha, 2011). Q. 2: The Difference of the legislation with the previous ones: The ACL law differs considerably with previous laws, in regard to companies, natural person, and trade transactions. Take for instance in the trade practices act of 1974. Section 52 (1) denotes that a corporation will not engage in commerce or trade in a manner that is deceptive, or misleading (Sovern, 2014). It is important to denote that the intention of this act was to protect consumers from misleading and deceptive practices by corporations, which were out to sale their products and services by all means possible. It is important to denote that in as much as the intention of this provision is similar to the provision contained in s 18 of the ACL act; there is a difference in the terms used. For instance, s 18 of the act denotes that a person should not conduct commerce in a deceptive or misleading manner (Althaus and Bridgman, 2012). Looking at these provisions, the trade practices act uses the term corporation, while the ACL act uses the term a person. Looking at section 22 (1) of the commonwealth interpretation act, denotes that a person can either be a corporate, a body politic, as well as an individual (Sovern, 2014). This section further goes on to denote that an individual is a natural person. On this basis, the trade practices act, only prohibits a corporate organization from using misleading and deceptive trade practices. However, the ACL act prohibits both the corporate organization, and a natural person from using deceptive and misleading trade practices (Althaus and Bridgman, 2012). Q. 3: Misleading Behaviors under ACL: A deceptive or misleading conduct is a misrepresentation of information that will make an employee to make an error of judgment. On a general note, misrepresentations are false statements of a fact (Consumer Law, 2014). It is also important to denote that statements that are true are misrepresentations if they can induce a consumer into making an error of judgment (Turner and Trone, 2013). An important test to this law is whether the conduct itself deceives, or even misleads. It is important to understand that it does not matter, whether an individual acted in negligence, as long as the conducting is deceptive and misleading, s 18 of the ACL act applies. For instance, in the 2013 case of the competition and consumer commission, vs. TPG internet ltd, the court gave a ruling that an headline advertising can be misleading, even if there is the existence of a disclaimer. The lessons learnt from this case is that, as long as an information provides a misleading fact, whether a business man had knowledge about it, or not, then the person under consideration is guilty of breaching s 18 of the ACL act (Turner and Trone, 2013). From this case law, it is therefore possible to denote that it is a misleading conduct, if a consumer believes in information that later turns out to be false. For instance, headline messages can be misleading, if they turn out to be false (Miles and Dowler, 2013). This is despite the existence of a disclaimer. It is also important to denote that keeping silence can also be misleading and deceptive. However, it is important to understand that a mere silence cannot be a misleading conduct. This is unless, there exists a reasonable expectation that the trader should disclose information or facts pertaining to the business deal (Sovern, 2014). Q. 4: Limitations of S 18 of the ACL, and the ACL act itself: One of the limitations of this law is that it is highly biased, in favor of the consumer. For instance, the act does not give a decisive definition of the term standard form contract. Section 27 (1) of the ACL act denotes that if a presumption is made by one party concerning a standard form contract, then the court can presume that the contract under consideration is a standard form contract (Pettit, 2011). This statement is ambiguous, and shifts the burden of proof to the seller, as opposed to the buyer, who is bringing an accusation against the seller. Another limitation of this law is on the provisions that regulate the term consumer contracts. Section 23 (3) defines a consumer contract as a contract responsible for the supply of services or goods, or a grant, or sale of an interest in land (Turner and Trone, 2013). The law further goes on to denote that the service or product under consideration must be for domestic, household, or personal consumption. On this basis, this law does not protect corporate organizations against exploitation from suppliers, in case of a consumer contract. It only recognizes the natural person, and not the corporate person. This is a major limitation of the law that ought to be corrected (Pettit, 2011). On this basis, all transactions between individuals are not covered under this law. This is because a corporate is recognized as a person under section 22 (1) of the commonwealth interpretation act. It the case of Federal Commission of Tax vs. Peate (1966), the Australian High court ruled that a corporate institution is a legal person (Sovern, 2014). On this basis, a corporate institution is liable for any transactions that it engages in. These laws also do not apply, in matters relating to the provision of financial services or products. The law that protects consumers in matters relating to financial products is the 2001 investments and Australian securities act (ASIC). Q. 5: If State Laws Still Apply: This law came into effect in January 2011, and it replaced the consumer laws that governed the various states and territories in Australia. It is important to denote that when the federal government was creating this law, it involved the Australian council of Governments, for purposes of negotiating the provisions of this law, and how it will be implemented in all the territories forming Australia (Harris, 2014). It is advantageous to implement a uniform consumer laws in all the states, as this will ensure consistency in the protection of the rights of consumers by the Federal and State governments (Turner and Trone, 2013). It is also easy for the Federal parliament to make amendments, to the law, as it will be applied to all the states. It is important to denote that any law that contradicts, or alters the impact of the ACL, are supposed to be deleted, repealed, or amended by the state governments, or territories falling within Australia (Pettit, 2011). This was an agreement reached by the intergovernmental council of Australia, during the process of making this law. Based on this fact, state laws do not apply, in regard to consumer protection. Q. 6: Does the common law still apply? The principles of common law still apply, since the enactment of these laws. It is important to denote that the Australian justice and legal system has been characterized by the principles of the common law (Harris, 2014). The principles of common law apply to consumers transactions when it involves the definition of terms. For example, this law is ambiguous on what constitute a standard contract (Pettit, 2011). For instance, section 27 (1) of the law gives a definition of a standard contract, as a presumption. On this basis, a judge will most definitely rely on case laws to make a decision on what a standard contract is. For instance, in a case law such as Meates vs. Attorney General, the courts denoted that a contract exists when there is an offer and an acceptance. Other case laws, the explain the nature of a contract includes a case involving Greek Orthodox community vs. Ermogenous, where the court was of the opinion that a contract exists when there is an intention to create a legal relationship (Harris, 2014). On this basis, the court needs the guidance of laws such as these, in providing a definition of ambiguous terms used in the ACL. Q. 7: Remedies for breach of Section 18: There are a number of remedies available for an individual who breaches section 18 of the ACL act (Consumer Law, 2014). One of the remedies is a fine on a corporation or individual person who breaches this law. The Australian consumer and competition commission can seek a fine of 220,000 Australian dollars, on individuals, and 1.1 million Australian dollars on corporations. A victim of deception or misleading conduct can also seek damages (Harris, 2014). That is monetary compensation, and this is if these people have suffered damage or loss, that resulted from the deceptive conduct. Chapter 5 of the ACL law contains a broad measure of enforcements that a judge can issue in case of a breach of this law (Sovern, 2014). For instance, 5 (1) of ACL contains a provision whereby an individual can obtain relief from deception without seeking the help of the court (Harris, 2014). This includes, forcing business people to accept liability, and compensate the victim, issuance of warning in regard to the conduct of the business person, and forcing the traders to substantiate the claims they have made in regard to their services and products. Q. 8: Anything relevant for the topic: Another important issue relevant to this topic is the aspect of unconscionable conduct. Section 20 of this law, does not allow a business individual to engage in a conduct referred to as unconscionable (Althaus and Bridgman, 2012). It is important to denote that the ACL does not give a full definition of this term unconscionable conduct, and it leaves it to the courts to interpret what it means. The Federal court was able to clarify this term, in the 2013 case involving ACCC vs. Lux distributors (Harris, 2014). In this case, the Federal court defined unconscionable conduct as behavior that is assessed by the normal standards of conscience, which are acceptable by the community values, requires fair and a honest conduct, that is free from deception. This is in the context of dealing with consumers. This topic is important because it confirms my earlier assertions that the common law still applies with the enactment of this law (Harris, 2014). Conclusion: In conclusion, the ACL is a very important law in Australia that seeks to protect consumers from unfair trade practices. The ACL advocates for honesty and transparency from any business man interacting with consumers in Australia. This law is applicable to all the states of Australia, and it has replaced all their consumer protection laws. These states are required to repeal any law that is inconsistent or contradicts the provisions contained in the ACL act. References: Althaus, C., & Bridgman, P. (2012). The Australian policy handbook (5th ed.). Crows Nest, N.S.W.: Allen & Unwin. Consumer Law. (n.d.). Legislation. The Australian Consumer Law -. Retrieved April 10, 2014, from http://www.consumerlaw.gov.au/content/content.aspx?doc=the_acl/legislation.htm Consumer Law. (n.d.). Implementation. The Australian Consumer Law -. Retrieved April 10, 2014, from http://www.consumerlaw.gov.au/content/Content.aspx?doc=the_acl/implementation.htm Harris, B. (2014). A Model Australian Consumer Code Relating to Defective Goods. Journal of Politics and Law, 3(2), 502-517. Miles, C., & Dowler, W. J. (2013). A guide to business law (20th ed.). Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia Limited. Pettit, D. (2011). The Effect of the New Australian Consumer Law on the Use of Standard Form Contracts within the Australian Construction Industry. Journal of Legal Affairs and Dispute Resolution In Engineering and Construction, 49, 307-324. Sinha, R. (2011). Consumer laws. New Delhi: Global India Publications. Sovern, J. (2014). Fixing Consumer Protection Laws So Borrowers Understand Their Payment Obligations. Journal of Consumer Affairs, 48(1), 17-33. Turner, C., & Trone, J. (2013). Australian commercial law (29th ed.). Sydney: Lawbook Co.. Wiseman, L., & Backstrom, M. (2012). Contracts (4th ed.). Chatswood, N.S.W.: LexisNexis Butterworths. Read More