The name of the Trade Practices Act 1974
(TPA) changed to the Competition and Consumer
Act 2010 (CCA);
Most of Australia's consumer protection laws have been
revised and moved from the state Fair Trading Acts and the body of
the TPA to the Australian Consumer Law (ACL);
The Australian Consumer Law came into full effect.
The changes affect nearly all businesses and require them to
review their documents and conduct in some way. Contraventions of
many of the new provisions carry heavy potential penalties.
A summary of key changes is set out set out below. For a
detailed summary of the ACL changes
Everything moves! Updating your documents
Any references to the "Trade Practices Act" and most
references to state Fair Trading Acts need to be updated in all of
your documents and agreements. As a general guide:
References to competition law provisions in the TPA become
references to the same section number in the CCA; and
References to most consumer protection provisions of the TPA or
Fair Trading Acts become references to corresponding provisions of
the Australian Consumer Law. For example, section 52 of the TPA is
now s18 of the ACL. Note that section numbering in the ACL is
completely different to the TPA or Fair Trading Acts, and many
provisions have been significantly redrafted.
The consumer warranties previously set out in the TPA and state
Fair Trading Acts have been replaced by new statutory guarantees.
These give consumers a range of new rights:
Consumers now have an explicit right to return products for a
full refund if there is a 'major' failure to comply with a
There is now a statutory guarantee of 'acceptable
quality' which includes a specific requirement that goods be
'durable'. This guarantee will be breached if goods fail
sooner than a consumer would reasonably expect; and
Where goods are supplied in association with a related service
(eg, a mobile phone sold on a plan), if the goods suffer a major
failure and the customer returns the goods for a refund, the
customer also has a right to cancel the associated service contract
From 1 January 2012, manufacturers' warranty documents must
contain prescribed information such as the extent of the warranty,
the manufacturer's contact details and the claim procedure.
Warranty documents must also include the following words:
Our goods come with guarantees that cannot be excluded under
the Australian Consumer Law. You are entitled to a replacement or
refund for a major failure and for compensation for any other
reasonably foreseeable loss or damage. You are also entitled to
have the goods repaired or replaced if the goods fail to be of
acceptable quality and the failure does not amount to a major
Companies who import or manufacture products with long lead
times should start planning now to ensure that warranty documents
in all products they stock will comply with this obligation by 1
The ACL introduces a new offence provision which prohibits
extended warranty programs from being promoted on the basis of
benefits already provided by statutory guarantees. This means great
care will now be needed in designing and promoting extended
warranty products. Companies with existing warranty products should
immediately review how those products are sold.
Every business must now notify the ACCC within 2 days of
becoming aware that any product it supplied has been associated
with any serious injuries, illness or death. Failure to notify in
time may result in penalties of up to $16,650 per offence.
Businesses should ensure that they have appropriate processes in
place to be able to comply with this onerous obligation. The text
of notifications will also need to be carefully considered to avoid
making unnecessary admissions.
Unfair contract terms
Since July last year, any term in a standard form consumer
contract that is found to be 'unfair' is void and
unenforceable. In addition, since January, consumers in any state
or territory can use these new laws to challenge any terms that
they think are 'unfair' in their local consumer or small
claims tribunal. Such challenges are easy and almost costless for
the consumer, but could have large consequences for suppliers.
Expect to see growing numbers of consumer contracts challenged
in this way – we expect in time it will become as
important in consumer litigation as s52 of the TPA (or s18 ACL!) is
now. If you haven't reviewed your standard form consumer
agreements, you should do so now.
What should you do to comply?
You need to:
understand these new laws; and
review your agreements, documents and practices to ensure they
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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