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Competition & Consumer Act 2010 & the Australian Consumer Law LCSA Annual Conference 2013 28 August 2013 Michael Jerabek Education & Engagement Manager (NSW & ACT) Australian Competition & Consumer Commission National law enforcement agency responsible for administering the Competition and Consumer Act 2010, which aims to: • promote competition and fair trading; and • protect consumers Parallel role of NSW Fair Trading What will I cover today? • • • • • • • Consumer guarantees Misleading & deceptive conduct Unconscionable conduct Unfair contract terms law Unfair sales practices Product safety Scams Consumer guarantees Consumer guarantees apply to: • goods or services of any type up to $40,000 in value (and...) • purchased but also leased and hired • online, over the phone or in person • both new & second hand Consumer guarantees do NOT apply to: • one-off sales (e.g. private sales such as car or garage sale) • buying to on-sell (e.g. car repairer purchasing parts to be used in repairs) • If consumers simply change their minds • If consumers misuse the goods • If purpose not specified and not obvious from the circumstances Nine consumer guarantees applying to goods: • • Acceptable quality (acceptable appearance & finish, free from defects, safe & durable) • Voluntary (express) warranties to be satisfied • Suppliers guarantee clear title • Suppliers guarantees undisturbed possession • Goods to be free of hidden securities or charges Reasonably fit for purpose • Description is accurate • Goods match sample • Reasonable availability of spare parts & repair facilities for reasonable length of time If any of these guarantees are not met, the consumer has a right to a remedy. Three consumer guarantees applying to services A supplier must meet the consumer guarantees of providing services: • with due care and skill • which are fit for any specified purpose • within a reasonable time (when no time is set) If any of these guarantees are not met, the consumer has a right to a remedy. Consumer guarantees – important concepts • • • • • • Major failure Minor failure Consequential loss Rejection period Trader’s v manufacturer’s responsibility Consumer guarantees v voluntary warranties Misleading & Deceptive Conduct It is unlawful for a business to make statements in trade or commerce that are: • misleading or deceptive, or • likely to mislead or deceive Including: • Failing to disclose relevant information • Promises, opinions & predictions • Advertisements, promotions, quotations & testimonials • Representations about quality, price, age, origin, performance etc. Note: • ‘Small print’ and disclaimers not necessarily an excuse • Overall impression considered (can be misleading even if true) • Take into account special vulnerabilities of specific groups Unconscionable conduct • Under the ACL unconscionable conduct covers business to business transactions as well as business to consumer transactions • UC can be described as behaviour which is irreconcilable with what is right or reasonable and is seen as harsh and/or oppressive • Usually involves a stronger party exploiting its bargaining advantage to impose terms or conditions that are unreasonable or against good conscience towards a smaller or weaker party Some examples of possible unconscionable conduct • Failing to disclose important contractual terms • Not allowing sufficient time for consumer to read agreement, seek advice, ask questions & decide • Refusing to deal with legitimate complaints • Not explaining terms of contract to consumers from NESB • Using friends/relatives to influence decision-making • Refusing to accept ‘No’ for an answer Unfair contract terms • ACL enables a court to find a contract term unfair & declare it to be VOID (treated as if it never existed) • Applies to standard form contracts including written and oral – over the phone or face to face • Contract remains binding to the extent that it can operate without the unfair term Unfair contract term test 1. Does the term create a significant imbalance between rights and obligations of the two parties? 2. Is the term reasonably necessary to protect legitimate interests of the business? 3. Would the term cause a detriment (financial or non-financial) if the business tried to enforce it? Also, how transparent is the term? Sales Practices • • • • • • • • Unsolicited supplies Unsolicited consumer agreements/Door-to-Door sales Pyramid schemes Multiple & component pricing Lay-by agreements Referral selling Harassment and coercion Proof of transaction Product Safety • Imposing mandatory safety standards • Product testing • Issuing public safety warning notices • Issuing compulsory recall notices • Banning unsafe products • Mandatory reporting www.productsafety.gov.au www.recalls.gov.au Scamwatch website • how scams work, • latest scams, • report scams, • register for email alerts, • scambuster app, • educational videos etc. www.scamwatch.gov.au • The issue of grant re-sellers… Further information • • • • • Call the ACCC Infocentre – 1300 302 502 Visit www.accc.gov.au Visit www.productsafety.gov.au Visit www.scamwatch.gov.au Visit www.consumerlaw.gov.au • ACCC Shopper App Any questions? www.accc.gov.au