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Update on the Australian Consumer Law

2012-11-12

Are you aware of your rights and responsibilities as a provider of goods and services under the new Australian Consumer Law?

The Competition and Consumer Act 2010 and Australian Consumer Law (replace the Trade Practices Act from 1 January 2011) represent a consolidation and timely update of consumers rights and the ever increasing onus on suppliers of goods and services to be aware of these rights and their own responsibility as providers of goods and services.  A brief chronology of the reforms is as follows:

 

  • New enforcement tools – 15 April 2010.
  • Unfair terms – 1 July 2010.
  • Change from TPA to CCA – 1 January 2011.
  • Statutory Consumer Guarantee – 1 July 2011.
  • Warranties Against Defects – 1 January 2012.
  • National Product Safety Regime – 1 January 2012.
  • Additional Reforms re Best Practice – Fair Trading Provisions – 1 January 2012.
  • Unconscionable Conduct Consolidation – 1 January 2012; and
  • Prohibitions re Price Signaling – 1 June 2012.

The ACCC has published on its website the following very useful information:

  1. Compliance Enforcement Policy.
  2. "Repair, replace, refund – if its not right, use your rights."  These can be viewed onwww.accc.gov.au.

The ACCC has more recently (since the reforms) been concentrating on the following subject matter:

  • Solar energy;
  • Price/supply (Disclosure issues);
  • Telecommunications;
  • Enforceable undertaking (these again can be seen on the ACCC's website).

It should also be noted that the ACCC is now more likely to include a claim against Directors particularly sole Directors for being knowingly concerned in false and misleading conduct.

Retail price maintenance remains of significant concern and particular attention is now being paid by the ACCC to on-line traders.  One such matter involved Dragon Alliance South Pacific attempting to restrict on-line retailers from selling its wares below specified prices.  The ACCC was able to obtain undertakings in respect of the offending conduct.

Another area that has attracted the attention of the ACCC though with mixed results relates to Google's sponsored links.  The ACCC has alleged Google engaged in misleading and deceptive conduct by not adequately distinguishing sponsored links as advertisements rather than just search results.  The ACCC was successful in prosecuting the advertiser, in this instance "The Trading Post".  The Federal Court found "The Trading Post" had engaged in misleading and deceptive conduct under the Act but not Google and that it was merely communicating the representations without adopting them.  The ACCC has appealed.  We urge our clients to maintain their awareness of Australian Consumer Law and the level of protection it now affords Australian consumers.

If you have any queries relating to this content please contact Tim Finemore attfinemore@richbenn.com.au.

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