Transcript Document
Consumer law and compliance: the State Regulator’s view Dr Elizabeth Lanyon General Manager Corporate Programs and Projects Overview • Balancing the rights of consumers and business: making markets work • Update on consumer protection legislation • Emerging issues in the online environment About Consumer Affairs Victoria • Victoria’s main consumer protection agency • “informed and responsible consumers and traders” – Responsibility for over 40 Acts (review, amendment, regs etc) including business licensing – City shop front and 7 regional offices – Community educators – Call centre and website – Conciliation and mediation – Compliance and enforcement The regulatory context: making markets work • Productivity Commission National Consumer Policy Review: report due end 2007 • COAG “hotspot reviews”: trade measurement, product safety, personal property securities reform, business names • Victoria: Victorian Competition and Efficiency Commission, Reducing the Regulatory Burden initiative • 2006 Department of Justice Better Business Better Business Regulation • An initiative covering the whole of DoJ not just CAV • Aim to enhance the practices of regulators • A framework for evaluating regulator practices has been developed and is starting to be pilot tested • The Reducing the Regulatory Burden initiative has added significant momentum to efforts to achieve regulatory reform • Funding has been made available under the RRB initiative to continue and extend the BBR project and to undertake a significant review of licensing scheme administrative arrangements • Performance measurement General Themes • Legislation cannot be waived • Rules need to be exactly complied with – Proof read forms and warnings – Check scripts and policies – Educate sales force and agents • Timing can be critical (eg cooling off periods, do not call times) • Need effective complaint handling Non complaince costs • Consumers can seek redress on one off basis • From co perspective larger issue is criminal sanction or publicity:$120,000 co $60,000 individuals • Also undertakings re compliance program • Remedies can apply to directors Fair Trading Act 1999 (Vic) • The “triangle” – Unconscionable conduct ss7,8,8A, 8B – Misleading and deceptive conduct 9,10,11,12 – Mirror TPA – Unfair contract terms Part 2B(Vic only) Recent legislative changes • Amendments to Fair Trading Act • Increased powers such as substantiation notices, show cause notices • Increased powers of inspectors to monitor compliance • Cease trading injunctions • Corrective ads/adverse publicity orders How CAV handles complaints • Published policies • Proactive trader engagement • Individual trader contact • “Hearing both sides of the story” • Proportionate response Assessment of Complaints Advice Seek additional Information Info not adequate to assess Advise customer or refer Not CAV jurisdiction Info Provide Information and Resource Provide advice on next steps Need Additional Assistance? Assistance Advise customer to approach trader Refer to FLE Refer to Financial Counsellor or Advocate Trader Not Approached Low Potential Breach Breach or unfair practice? Impact? Refer to C&E Advise customer Refer to Region High Unlikely to be settled Trader History Consumer and Trader in same region Refer to Dispute Resolution How to engage with the regulator • Acknowledgement • Allocate to appropriate level of seniority • Respond as clearly and as cooperatively as possible • Adhere to timelines or explain why not • Consider legal advice • Consider systemic issues Recent FTA cases • Houghton v Arms – Director of Consumer Affairs Victoria, amicus curaie, appeal before the High Court of Australia – s. 9 FTA, could company employees could be liable for their misleading and deceptive conduct, in trade or commerce, engaged in within the scope of their normal duties as employees. – held employees were personally liable • VIP Executive Car Rentals – consumers in Australia and overseas (including South Korea, India, UK and Singapore) – Representations: security deposits would not be debited to consumers’ credit cards unless the cars were damaged. However, VIP debited these amounts immediately and failed to refund them; amounts were $3000 -$5000. – Magistrate’s Court - declarations that VIP had engaged in conduct that was misleading or deceptive, or was likely to mislead or deceive. Injunctions Emerging issues online • Plus ca change…. – ACCC v Google: misleading and deceptive conduct in sponsored links – “unlimited” usage – eBay v BigDay Out [2006] FCA 1768 ISP /online auction sites • State law applies to online environment as well as C/w • CAV has a role in dispute resolution/complaints (not just TIO) • Statutory warranties under FTA • Unfair contract terms – – – – Liability for content providers Liability generally Unilateral variation Hidden or inconsistent terms More information • CAV website information for traders and consumer affairs professionals • Fact sheets, policies, updates • www.consumer.vic.gov.au