MLL217 Study Guide - Final Guide: Capital Asset, Firewatch, Westpac
2 Jun 2018
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Key Concepts Underpinning the Australian Consumer Law
ACL breakdown
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
ss 1-17
Pt 2-1 ➡ss 18-19
Pt 2-2➡ ss 20-22A
Pt 2-3➡ ss 23-28
Pt 3-1 ➡ ss 29-50
Pt 3-2 ➡ ss 51- 103
Pt 3-3 ➡ ss 104 - 133
Pt 3-4 ➡ ss 134-137
Pt 3-5 ➡ ss 138-150
Pt 4-1 ➡ ss 151-168
Pt 4-2 ➡ ss 169- 193
Pt 4-3 ➡ ss 194 - 202
Pt 4-4 ➡ ss 203 - 206
Pt 4-5 ➡ ss 205-206
Pt 4-6 ➡ ss 207 - 211
Pt 4-7 ➡ ss 212- 217
Pt 5-1 ➡ ss 218- 223
Pt 5-2 ➡ ss 224-253
Pt 5-3 ➡ ss 254-258
Pt 5-4 ➡ ss 259-277
Pt 5-5 ➡ ss 278-287
▪ Key part of the regulatory reforms of the Council of Australian Governments
(COAG) to deliver a seamless national economy
▪ Replaces provisions spread across 17 State and Territory Acts and in the
Trade Practices Act 1974 (TPA)
▪ Came into effect on 1 January 2011
▪ Each state and territory has enacted legislation applying the ACL
▪ See, for example, Fair Trading Act 1999 (Vic)
-Includes persons AND Corporations
Textbook
▪ Background to the ACL
▪ The legislative basis of the ACL
▪ The ACL as a law of the Commonwealth
▪ The ACL as State or Territory law
▪ Policy objectives
▪ Henjo Investments v Collins Marrickville (No 1)
▪ Misleading conduct by silence
Sold a restaurant, seating for 124 but only held a permit for 96.
When the council came along they had to remove the difference
in seating. Made a difference to profitability
While it was literally true that is could seat 124, it was
misleading
Act enacted to stamp out improper commerce in trade or
commerce
▪ Henville v Walker
▪ Lack of further enquiry
Now s 82 applies, ability to claim contribution
Held that part to blame, but recovered all costs
▪ ACL is contained in Schedule 2 of the Competition and Consumer Act 2010
▪ Is applied as a law of the Commonwealth & each State and Territory will also
make the ACL a law of its jurisdiction so that the same provisions will apply
across Australia
▪ Modelled on the existing consumer protection provisions of the Trade
Practices Act but with some modifications.
▪ Enforced by all Australian courts and tribunals, including the courts and
tribunals of the States and Territories
▪ Is administered by the ACCC and each State and Territorys consumer law
agency
find more resources at oneclass.com
find more resources at oneclass.com
▪ Generally reflected in similar provisions in the Australian Securities and
Investments Commission Act 2001 (ASIC Act), so that financial products and
services are treated in the same way.
The ACL comprises uniform provisions relating to, inter alia:
- Misleading conduct and other false representations
- Product liability and product safety enforcement
Enforcement and remedial powers
• Extraterritorial application
- Each state and territorial legislation provide greater provisions to be applied
• Double punishment – prevented through ACCC and state/territory legislation
BUT 2 limitations on s 18:
▪ Trade or commerce requirement
▪ E.g. Orion Pet Products v RSPCA
▪ Protection for media organisations (see Topic 11)
Key concepts under the CCA
▪ The CCA applies to corporations
▪ NB: the state and territory Acts do impose obligations on all persons
▪ The corporation must be a foreign, trading, or financial corporation, or a
holding company thereof.
▪ Section 4(1) CCA
A trading corporation
◼ A substantial or sufficiently significant part of the corporations activities
must be trading activities; must be more than peripheral
◼ NB: A trading activity means the acquisition and supply of goods and
services for reward.
◼ A not for profit organisation might be a trading corporation
◼ E v Australian Red Cross Society
◼ Plaintiff contracted AIDS during blood transfusion (ARCS
was responsible for the blood)
◼ Court held that: was a trading corporation, despite the
practically free transaction of blood.
◼ (Not misleading conduct)
◼ Orion Pet Products Pty Ltd v RSPCA (Vic)
◼ Hughes v WACA
◼ Boycott contravened TPA ??
◼ Just because it trades does not mean it is a trading
corporation
◼ Contrast with amateur sporting clubs
◼ The substantial current activities test
For
Hughes v WACA
R v Federal Court of Australia; ex parte WAFL
SGIO v GIO
TPC v Legion Cabs (trading) Co-operative Society Ltd
Against
◼ McCarthy v Australian Rough Riders Association Inc
◼ Bradken Consolidated Ltd v BHP
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Pt 5-5 ss 278-287: key part of the regulatory reforms of the council of australian governments (coag) to deliver a (cid:1684)seamless national economy(cid:1685, replaces provisions spread across 17 state and territory acts and in the. Trade practices act 1974 (tpa: came into effect on 1 january 2011, each state and territory has enacted legislation applying the acl, see, for example, fair trading act 1999 (vic) Sold a restaurant, seating for 124 but only held a permit for 96. When the council came along they had to remove the difference in seating. While it was literally true that is could seat 124, it was misleading. Act enacted to stamp out improper commerce in trade or commerce: henville v walker, lack of further enquiry. Now s 82 applies, ability to claim contribution. Held that part to blame, but recovered all costs: acl is contained in schedule 2 of the competition and consumer act 2010.
