On 17 February 2009, the Council of Australian Governments
(COAG) released a consultation paper titled "An Australian
Consumer Law: Fair Market – Confident
Consumers" . The paper proposes the harmonization of
consumer protection laws in Australia (including the introduction
of new national prohibitions and requirements), through the
introduction of the Australian Consumer Law. The new regime is
scheduled to be introduced by 31 December 2010. If you wish to
provide feedback on the consultation paper, you need to do so by 17
Summary of new prohibitions and requirements
The consultation paper proposes:
a prohibition on unfair terms in standard form consumer
minimum standards (eg disclosure requirements) for consumer
the provision of an itemised bill when requested;
new protections for recipients of unsolicited services;
a new national product safety regulatory system;
enhanced enforcement powers for regulators; and
possible expansion of the legislative definition of
'consumer' to include small businesses and farmers.
Two of the most significant proposed changes are the prohibition
of unfair contract terms and the introduction of new national
powers for regulators.
Unfair contract terms
Unfair contract terms are terms in standard form contracts that
cause a significant imbalance in the parties' contractual
rights and obligations, which are not reasonably necessary to
protect the interests of the business. COAG has provided examples
of terms that may be unfair, including terms that:
permit a business to unilaterally vary terms of the
prevent a consumer from cancelling a contract;
require the payment of fees by a consumer when a service is not
exclude liability for harm caused by a business;
enable a business not consumer to decide whether or not to
renew the contract; and
penalise a consumer not business for breaches of terms of the
Businesses in the following industries are likely to be affected
by the proposed unfair contract terms prohibition: banking;
utilities; telecommunications; internet; transport; pay-television;
magazine publishing; and fitness.
Proposed changes to the powers of regulatory agencies include
the ability of all regulators to:
seek civil penalties;
issue disqualification orders, which would ban or restrict
individuals from undertaking certain activities for specified
periods (eg management of corporations);
issue infringement notices;
issue substantiation notices, which would require a business to
provide the regulator with a justification for their
issue naming and shaming notices.
In implementing the new regime, enforcement agencies around
Australia will enter into agreements to govern the coordination of
their activities. This may mean that businesses which offend laws
in multiple jurisdictions may face harsher penalties, due to the
increased coordination of the regulators and the information they
are able to access.
The proposed new Australian Consumer Law regime will have a
significant impact on a broad range of businesses. Should you
require further information on any of these changes, or assistance
in submitting a response to COAG's consultation paper, please
do not hesitate to contact us.
(07) 3231 1518
(07) 3114 0146
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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