CLAW1001 Lecture Notes - Lecture 11: Competition And Consumer Act 2010, Australian Consumer Law, Caveat Emptor
22 May 2018
School
Department
Course
Professor
Lecture 11
Fair Trading: The Australian Consumer Law / Consumer Guarantees
• National Protection — Trade Practices Act 1974: “In consumer transactions unfair
practices are widespread. The existing law is still founded o the principle now as caveat
emptor — meaning “let the buyer beware”. That principle may have been appropriate for
transactions conducted in village markets. It has ceased to be appropriate as a general rule.
Now the marketing of goods and services is conducted on an organised basis and y trained
business executives. The untrained consumer is no match for the businessman who
attempts to persuade the consumer to buy goods or services on terms and conditions
suitable to the vendor. The consumer needs protection by the law and this Bill will provide
such protection.
• Commonwealth: Trade Practices Act 1974 (Cth)
- Part V Division 2: Conditions and warranties in consumer transactions: 1) implying terms
into contracts to protect consumers. 2) reflects Sale of Goods legislation.
- Part V Division 2A: actions against manufacturers and importers: 1) Same statutory rights
against manufacturers. 2) avoids privity issues.
Issue: Is National protection one law for all?
National protection has constitutional limitations. The State’s approach to National Protection
is the Fair Trading legislation. However, there is divergence in state legislation e.g.
Victoria’s unilateral introduction of unfair contracts terms provisions.
Overview of Australian Consumer Legislation
Chapter One: Machinery provisions, definitions etc.
Chapter Two: General Consumer Protections — Misleading and deceptive conduct (s52),
Unconscionable conduct (Part IVA), Unfair contract terms (New — cf Victoria)
Chapter Three: Specific Protections — Consumer guarantees (Part V Div 2/2A), Product
safety (Part VA), Product liability (Part V Div 1A)
Chapter Four: Criminal offences — For breach of Chapter three (Part VC)
Chapter Five: Enforcement and Remedies (Part VI)
Consumer Guarantees
Part 3-2 of consumer transactions, Division 1 of consumer guarantees:
1) Subdivision A — Guarantees relating to the supply of goods
2) Subdivision B — Guarantees relating to the supply of services
3) Subdivision C — Guarantees not to be excluded etc. by contract
4) Subdivision D — Miscellaneous
- Guarantees - not warranties
- Statute — not contract
- No privity issues — gifts
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- Enforceable against manufacturer of retailer — consumer chooses
- Manufacturer has ultimate responsibility
- In addition to, not instead of, contract
- Services — not just goods
- Not excludable
1) Subdivision A: Goods
Guarantee as to:
1. 51 — title
2. 52 — undisturbed possession
3. 53 — undisclosed securities
4. 54 — acceptable quality
5. 55 - fitness for any disclosed purpose
6. 56 — supply of goods by description
7. 57 — supply f goods by sample
8. 58 — repairs and spare parts
9. 59 — express warranties
2) Subdivision B: Services
1. Due care and skill — s 60
2. Particular purpose — s 61 (1)
3. Achieving a desired result — s 61 (2)
4. Reasonable time to supply —s 62
Investigation and Enforcement — Notices
1. Substantiation notices
- May be issued where contravention suspected
- Information must be provided within 21 days of notice issue
2. Infringement notices
- May be issued where there are reasonable grounds to believe there has been a
contravention
- Penalties to be paid within 28 days of notice issue
3. Public warning notices
- May be issued where there are reasonable grounds to believe there has been a
contravention
- Satisfied that one or more people have suffered detriment and it is in the public interest to
issue the notice
Investigation and Enforcement — Court
The regulators (ACCC, ASIC, State Fair Trading) can apply for:
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Document Summary
Fair trading: the australian consumer law / consumer guarantees: national protection trade practices act 1974: in consumer transactions unfair practices are widespread. The existing law is still founded o the principle now as caveat emptor meaning let the buyer beware . That principle may have been appropriate for transactions conducted in village markets. It has ceased to be appropriate as a general rule. Now the marketing of goods and services is conducted on an organised basis and y trained business executives. The untrained consumer is no match for the businessman who attempts to persuade the consumer to buy goods or services on terms and conditions suitable to the vendor. The consumer needs protection by the law and this bill will provide such protection: commonwealth: trade practices act 1974 (cth) Part v division 2: conditions and warranties in consumer transactions: 1) implying terms into contracts to protect consumers.
