This lecture provides an overview of the Australian Consumer Law ("the ACL") which is located in Schedule 2 of Volume 3 of the Competition and Consumer Act 2010 (Cth) ("the CCA"). It is intended to apply throughout all Australian jurisdictions through a Federal - State cooperative legislative scheme and to all trading entities, corporations, unincorporated partnerships and sole-traders.

Assessment:

• Exam

o 20

th

July Friday

o 2 problem questions of equal weighting o Exactly like the workshop questions

o Only 4 pages of notes and the legislation (unannotated)

• Research Paper

o Due Monday 13

th

August Workshops

• See footnotes of the prescribed cases good authority

• First 40 mins group work on the problem

• The remainder of the time will be spent going through the problem as a whole 1.2 COURSE STRUCTURE

We will essentially be moving through the legislation Chapter 2 – the General Protections

Sub-Parts: 3 forms of general protections we will look at

• Misleading or deceptive conduct

o Heavily litigated and very broad

• Unconscionable conduct

o Statutory unconscionable conduct o Unconscionable conduct in equity

• Unfair contract terms

Consumer transactions and consumer guarantees Part 3-2 Division 1

Unsolicited consumer agreements

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Division 2

Safety of goods and services

Part 3-5 liability of manufacturers for goods with safety defects

We will look briefly at the criminal offences: Part 4-2 offences relating to the … Ordinary persons cannot access these thus we only look at them briefly

Chapter 5 Enforcement and remedies

Particular focus on the consumer guarantees.

1.3 THE BASICS

• When the Commonwealth wants to create a law constitutional power

• No express power concerning consumers trade protection

• The constitutional support rests upon a network of other powers

• The trade and commerce power and corporations power

• ACL is not seriously challengeable now – has been present in some form since federation.

• Important principle of statutory interpretation – think PBS - a law will only bind a subject if expressly stated or necessarily intended to do so.

o The crown itself is not bound by the laws which it creates crown immunity Historical principle

• There are 3 or 4 trading entities which are relevant to consider o The crown

o The corporations

o Unincorporated trading entities o Sole traders

These all contribute to the Australian economy Must be subject to and abide by the ACLs

You don’t want government entities to gain a competitive advantage Nor should a sole trader be immune from a national consumer

protection framework because it is unincorporated

The states and territories: adopting equivalents which are exactly the same as the ACL.

• Essentially the State Acts copy and paste / downloaded the federal rules directly – thus the ACL (NSW) applies in NSW or the ACL (QLD) applies.

• Are the states obliged to do this?

• How do we ensure the amendments applied at the Cth level trickle down to the States and Territories?

• Provided for in the original agreements – the states/ territories automatically download the new updates

• All state and territory acts have the exact same wording and terms.

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• The same text is found and applies in every fair-trading act in Australia (all states and territories)

In the exam we are dealing with the Commonwealth laws.

1.4 APPLICATION OF THE ACT TO THE CROWN

• What is the crown? in this context it is the government.

o The federal government the commonwealth The executive branch

o The State and Territory governments The executive branches

• In Australian there are 9 Crowns, but they are 1 Crown o CTH, NSW, ACT, QLD, VIC, TAS, SA, WA, NT.

• The crown now in modern times competes within the market, competing with the private corporations etc.

• Thus, because the crown is now a major participate in the economy it is only fair they should be subject to the same laws, competitor neutrality

• For this reason, sections in the CCA and state Fair Trading Acts which expressly apply consumer law to the Crown (or Crowns 9 into 1).

• Make a distinction between the Commonwealth Crown and the State/Territory Crowns

• If dealing with the Commonwealth look to s 2A of the CCA

o Section 2A provides that, subject to the relevant exceptions, the Act binds the Crown in the right of the Commonwealth in so far as the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.

The plain inference to be drawn from the provisions of s 2A is that prohibitions

1.5 EXAM ANSWER STRUCTURE

STEP 1: WHAT?

Identify the conduct which is a question (complained about).

• i.e deceptive or misleading conduct, unconscionable conduct, unfair contract terms, etc.

STEP 2: WHO?

Identify the legal entity said to have engaged in the conduct.

• A corporation director, employee or agent o Corporations have separate legal entity

o However, the corporation themselves does not engage in the conduct, it is an

employee, director or agent who does so – must prove the conduct can be

brought back to the corporation.

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• The crown public servant, member of department

o s 2A – relating to the Commonwealth executive – carrying on business directly or through an authority

• An unincorporated entity sole trader, etc.

Remember pleadings from LDM – parties must bring an action against the right party.

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