by Fiona Vidler, Senior Associate of Gadens Lawyers
The Australian Government is in the process of introducing a
single national consumer law, to be introduced in two stages:
the Trade Practices Amendment (Australian Consumer Law) Act
(No. 1) 2010 (Act), most of which became
operational on 15 April 2010. However, its unfair contract terms
provisions will not be in force until at least 1 July 2010 (and
possibly as late as 16 October 2010). As expected, the unfair
contract terms provisions will only apply to standard form
(non-negotiated) consumer contracts (Phase I);
the Trade Practices Amendment (Australian Consumer Law)
Bill (No. 2) (Cth) (Bill), which was
introduced into the House of Representatives on 17 March 2010 and
has been referred to the Senate Economics Committee for report by
21 May 2010. The Bill is not expected to become law before 1
January 2011 (Phase II).
Under the new framework, the Trade Practices Act 1974
(TPA) will be renamed the (Competition and
Consumer Act 2010) and the legislation will be re-organised.
Consumer protection provisions will be included in a schedule to
the main piece of legislation and titled the "Australian
Consumer Law". While some new requirements and regulatory
powers will be introduced, some existing TPA provisions will be
merely re-stated in the new legislation.
The new national legislation will be enforced by the Australian
Competition and Consumer Commission (ACCC) and
State and Territory fair trading agencies.
New ACCC powers included in the Act, which already apply,
include the power to issue:
Substantiation Notices – to require a party to
provide information and/or documents to substantiate claims they
have made (eg in advertisements). In effect these notices reverse
the onus of proof.
Infringement Notices – which are similar to a fine.
If the amount specified in the notice is paid, proceedings will not
be commenced. These notices can be issued in relation to some, but
not all, consumer protection provisions. For example, they cannot
be issued in relation to misleading or deceptive conduct.
Public Warning Notices – these are "naming and
shaming" notices. They can be used where the ACCC has
reasonable grounds to suspect that a consumer protection or
unconscionable conduct provision has been breached, or if a party
fails to respond to a substantiation notice.
The Bill (which could yet change) includes provisions that
Change the name of the Trade Practices Act 1974 to
Competition and Consumer Act 2010 .
Introduce consumer guarantees, which will be implied into
consumer contracts and will replace the consumer conditions and
warranties currently provided for in the TPA. These new guarantees
will relate to some behaviour regulated by the existing conditions
and warranties provisions of the TPA, but will also cover other
conduct. For example, they will include guarantees that any express
warranty is complied with and that services will be provided in a
reasonable period of time.
Give the Commonwealth Minister the power to determine that a
business display a notice advising consumers of their rights as
specified by the Minister.
Included above is merely a brief overview of some of the
changes. Businesses should identify all provisions of the new
legislation that relate to them, what requirements will change and
when the relevant provisions will commence.
Please contact us if you require further information about the
impact of these changes on your business or advice on how to manage
these new risks.
The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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