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Australian Consumer Law

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The Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010, is uniform legislation for consumer protection, applying as a law of the Commonwealth of Australia and is incorporated into the law of each of Australia's states and territories. The law commenced on 1 January 2011, replacing 20 different consumer laws across the Commonwealth and the states and territories,[1] although certain other Acts continue to be in force.[2]

History

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The Australian Consumer Law was developed by agreement of the Council of Australian Governments.[3]

The Competition and Consumer Act 2010 (referred to as Australian Consumer Law) was enacted into legislation by the Parliament of Australia to provide a more robust framework of protection for consumer transactions within Australia. Historically the States and Territories of Australia were responsible for their own legislation protecting the sale of goods, known as the Trade Practices Act 1974, where the Australian Consumer Law expands on provisions of the fair trading legislation in each state and territory to a national legislation covering the provision of goods and services, of a consumer based nature, within Australia.

Scope

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The ACL has a broad definition as to who is a "consumer",[4] and it includes anyone who acquires:

  • goods or services that are priced at less than $100,000, or
  • goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (even if priced greater than $100,000), or
  • a vehicle or trailer for use principally in the transport of goods on public roads.

A person is still defined as a "consumer" if the good was acquired for purposes of re-supply or for the purpose of using or transforming it in trade or commerce.[5] It accordingly extends protections relating to business behaviour, product safety and quality[6] to businesses[7] and farms[8] with regard to the areas covered above.

Certain provisions possess different scope in their application:

  • Unfair terms are void, where they appear in standard form contracts signed with individuals "whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption."[9]
  • All persons are prohibited from engaging in unconscionable conduct (beyond unfair terms in standard form consumer contracts) when dealing with persons (other than public listed companies) in the course of trade and commerce.[10]

These provisions are vigorously enforced. In December 2014, the Federal Court of Australia, on the application of the ACCC, issued a $10 million pecuniary penalty order against Coles Supermarkets in relation to two connected proceedings arising from payment demands by Coles to which it was not entitled by threatening harm to the suppliers that did not comply with such demands.[11][12] In December 2021, the Federal Court found that the ACL prohibits class action waivers.[13]

Administration

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The ACL is administered and enforced jointly by the Australian Competition & Consumer Commission and the State and Territory consumer protection agencies, with the involvement of Australian Securities & Investments Commission on financial services matters.[14]

The following matters are regulated federally, by virtue of the corporations power:[15]

  • the conduct of corporations;
  • a supply or possible supply of goods or services by any person to a corporation (other than a listed public company); or
  • an acquisition or possible acquisition of goods or services from any person by a corporation (other than a listed public company).

Federal jurisdiction also extends to conduct outside Australia by bodies corporate incorporated or carrying on business in Australia, Australian citizens, and persons ordinarily resident in Australia.[16]

All other matters subject to the ACL are handled by the States.

Implementing identical consumer protection laws at Commonwealth and state/territory levels promotes consistency between jurisdictions. It will also make it easier for the Federal Parliament to amend the provisions which will then be reflected in the laws of the states and territories without the parliaments of each jurisdiction needing to debate and enact the amendments separately, although the states and territories reserve the right not to implement any amendments within their own jurisdiction.

List of implementing Acts

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ACL implementation by jurisdiction
Jurisdiction Implementing Act
 Australia Competition and Consumer Act 2010 (Cth)
 Australian Capital Territory Fair Trading (Australian Consumer Law) 1992 (ACT)
 New South Wales Fair Trading Act 1987 (NSW)
 Northern Territory Consumer Affairs and Fair Trading Act (NT)
 Queensland Fair Trading Act 1989 (Qld)
 South Australia Fair Trading Act 1987 (SA)
 Tasmania Australian Consumer Law (Tasmania) Act 2010 (Tas)
 Victoria Australian Consumer Law and Fair Trading Act 2012 (Vic)
 Western Australia Fair Trading Act 2010 (WA)

References

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  1. ^ Kelly, Joe (31 December 2010). "Shoppers and parents among those to benefit from law changes at midnight". The Australian. Retrieved 25 January 2011.
  2. ^ "Exceptions under commonwealth, state & territory legislation". Australian Competition and Consumer Commission. 11 February 2013.
  3. ^ Explanatory Memorandum, Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 (Cth)
  4. ^ Competition and Consumer Act 2010 (Cth) sch 2 Australian Consumer Law s 3.
  5. ^ Ibid s 3(1).
  6. ^ "The Australian Consumer Law and your safety". consumerlaw.gov.au. Archived from the original on 11 April 2015.
  7. ^ "The Australian Consumer Law and your business". consumerlaw.gov.au. Archived from the original on 11 April 2015.
  8. ^ "The Australian Consumer Law and your farm". consumerlaw.gov.au. Archived from the original on 11 April 2015.
  9. ^ Competition and Consumer Act 2010 (Cth) sch 2 Australian Consumer Law ss 23–28.
  10. ^ Ibid ss 20–22A.
  11. ^ Gibbons, Fleur; Uthmeyer, Simon (8 April 2015). "Pecuniary penalty order against Coles is a win for good standards of conduct in commercial dealings" (PDF). DLA Piper., discussing Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (22 December 2014)
  12. ^ "Court finds Coles engaged in unconscionable conduct and orders Coles pay $10 million penalties". Australian Competition and Consumer Commission. 22 December 2014.
  13. ^ Dreyer, Frances; Briggs, Nicholas; Locket, Scott. "Contracting out of class actions? Federal Court says no in an Australian first". Johnson Winter Slattery. Retrieved 27 August 2022.
  14. ^ "Business and the ACL". consumerlaw.gov.au. Archived from the original on 11 April 2015.
  15. ^ Competition and Consumer Act 2010 (Cth) s 131
  16. ^ Competition and Consumer Act 2010 (Cth) s 5
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