Reform of Australia’s inconsistent Commonwealth, State and Territory consumer laws is now a reality. The 1 January 2011 commencement of the Australian Consumer Law (ACL), within the Competition and Consumer Act 2010, is the culmination of a long process of consultation. Unifying and rationalising the plethora of laws, this new Act sees the disappearance of the “Trade Practices Act” and the amendment of a raft of State and Territory legislation; the new national regime informed by them operates in their stead. This is indisputably the most comprehensive change in the history of the Trade Practices Act 1974. This book aims to assist practitioners, academics and students understand the Australian Consumer Law regime and its impact. It summarises the history and constitutional basis of the ACL, explaining how the ACL will be implemented, amended and enforced. In addition it explores how the various general and specific protections interrelate, and the scope of their overlap, and considers the content of the ACL, and the principal changes from the provisions of the Trade Practices Act.

AbstractThis article considers the regulatory problems of online tracking behaviour, lack of consent to data collection, and the security of data collected with or without consent. Since the mid-1990s the United States Federal Trade Commission has been using its power under the United States consumer protection regime to regulate these problems. The Australian Competition and Consumer Commission (ACCC), on the other hand, has yet to bring civil or criminal proceedings for online privacy or data security breaches, which indicates a reluctance to employ the Australian Consumer Law (‘ACL’) in this field. Recent legislative action instead points to a greater application of the specifically targeted laws under the Privacy Act 1988 (Cth) (‘Privacy Act’), and the powers of the Office of the Australian Information Commissioner (OAIC), to protect consumer privacy and data security. This article contends that while specific legislation setting out, and publicly enforcing, businesses’ legal obligations with respect to online privacy and data protection is an appropriate regulatory response, the ACL's broad, general protections and public and/or private enforcement mechanisms also have a role to play in protecting consumer privacy and data security.

On 30 November 2015, the Legal Affairs and Community Safety Committee of the Queensland Parliament tabled its report, ‘Lemon’ Laws – Inquiry into Consumer Protections and Remedies for Buyers of New Motor Vehicles (‘Queensland Lemon Law Report’). In its terms of reference, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that reoccur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. There are three different bases by which a consumer can obtain relief in relation to loss or damage arising from the purchase of lemon motor vehicles. The first basis is where the motor vehicle manufacturer conducts an investigation and there is the possibility of a safety concern with one or more of the parts used in its vehicles. The manufacturer may initiate a voluntary recall of the vehicles in the range and repair the defect free of charge. If the manufacturer does not initiate a voluntary recall, the consumer can commence private action for relief under the consumer guarantee provisions of the Australian Consumer Law (‘ACL’) located in schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘CCA’) and adopted in the states and territories as a law of their respective jurisdictions. The third basis for obtaining relief is for the consumer to complain to the Australian Competition and Consumer Commission (‘ACCC’) or state and territory regulators for a contravention of the prohibition of misleading conduct in section 18 of the ACL; or for false or misleading representations by the manufacturer or dealer in relation to after-sales care, the availability of spare parts and servicing. There is also scope for the ACCC to bring a representative action on behalf of consumers to enforce the consumer guarantees. The ACCC has published a comprehensive industry guide on consumer remedies and obligations created by the ACL. Claims for damages or compensation for death or personal injury arising from lemon purchases are dealt with elsewhere in the ACL.

This submission was prepared by Professor Stephen Corones, Professor Sharon Christensen and Nicola Howell on behalf of the Commercial and Property Law Research Centre (CPLRC) at QUT. The CPLRC is a specialist network of researchers with a vision to reform legal and regulatory frameworks in the commercial and property law sector through high-impact applied research. The submission addresses particular issues and questions from the Issues Paper related to Lemon Laws, transactions involving digital content and the sharing economy, and financial services. The numbering of questions from the Issues Paper has been adopted

One powerful way for suppliers of goods to distinguish their product from those of their competitors and thereby establish consumer preferences is to make a premium claim in relation to them. Premium claims (sometimes referred to as credence claims) involve a representation of a premium or special quality that differentiates one product from another. It may be difficult for consumers to verify these claims. Suppliers who make premium claims for their goods will generally spend on advertising and selling to convey this information to consumers. If the supplier succeeds in influencing the tastes of consumers that its product is better or superior in some way to those of its competitors that will allow it to charge a premium price. Where such claims are false they result not only in consumer detriment, but also harm existing competitors by taking away market share and creating an artificial barrier to new entry. Since 2013, the Australian Competition and Consumer Commission (ACCC) has significantly increased its enforcement activity in relation to false or misleading premium claims. This article examines these developments.

In its Final Report released in March 2015, the Competition Policy Review Committee (Harper Review Committee) made some radical recommendations for the reform of Competition and Consumer Act 2010 (Cth) (CCA), and none more so than Recommendation 30. Recommendation 30 is that s 46(1) should be amended to prohibit a corporation that has a substantial degree of market power from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition. 1

The Commonwealth Department of Treasury (Commonwealth Treasury) on behalf of Consumer Affairs Australia and New Zealand (CAANZ) has engaged the Queensland University of Technology (QUT) to conduct a comparative review of international consumer policy frameworks. The principal jurisdictions identified for the purposes of the comparison are the European Union, the United Kingdom, the United States of America, Canada, and Singapore. This comparative analysis identifies emerging issues and key developments in consumer policy and possible alternative approaches for providing consumer protection. It highlights where the chosen jurisdictions adopt different approaches to Australia, but does not identify best practice models in other jurisdictions.

Stephen Corones in The Australian Consumer Law, explains in a detailed yet accessible treatment the substantive rights and remedies of consumers, and the obligations of traders under the Australian Consumer Law (ACL). The ACL commenced on 1 January 2011 and it has been a far reaching national reform. As a result of the ACL there is now one uniform consumer protection law that applies in all jurisdictions throughout Australia and across all sectors of the economy. This book explains the scope and importance of the statutory causes of action created by the ACL. It examines how the general and specific protections inter-relate, the scope for overlap, and why each provision is necessary to provide complete consumer protection. Since the last edition over three years ago, The Australian Consumer Law third edition has been extensively reworked and updated to take account of the many changes in the law that have occurred during this time. The third edition includes commentary on new legislation, including the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) which will extend the general protection against unfair terms to contracts with small businesses.

While anecdotal evidence indicates financial advice affects consumers’ financial well-being, this research project is motivated by the absence of empirically-grounded research relating to the extent to which, and, importantly, how, financial planning advice contributes to broader client well-being. Accordingly, the aim of this project is to establish how the quality of financial planning advice can be optimised to add value, not only to clients’ financial situation, but also to broader aspects of their well-being. This broader construct of well-being captures a range of process and outcome factors that map to concepts of security, control, choice, mastery, and life satisfaction (Irving, 2012; Gallery, Gallery, Irving & Newton, 2011; Irving, Gallery, and Gallery, 2009). Financial planning is commonly purported to confer not only tangible benefits, but also intangible benefits, such as increased security and peace of mind that are considered as important, if not more important, than material outcomes. Such claims are intuitively appealing; however, little empirical evidence exists for the notion that engaging with a financial planner or adviser promotes peace of mind, feelings of security, and expands choices and possibilities. Nor is there evidence signalling what mechanisms might underpin such client benefits. In addressing this issue, we examine the financial planning advice (including financial product advice) provided to retail clients, and consider the short- and longer-term impacts on clients’ financial satisfaction and broader well-being. To this end, we examine both process (e.g., how financial planning advice is given) and outcome (e.g., financial situation) effects.

Supermarkets in Australia may have substantial market power as buyers in wholesale markets for grocery products. They may also have substantial bargaining power in negotiating contracts with their suppliers of grocery products. The Competition and Consumer Act 2010 (Cth) (CCA) regulates misconduct by supermarkets as customer/acquirers in three ways. First, s 46(1) of the CCA prohibits the ‘taking advantage’ of buyer power for the purpose of damaging a competitor, preventing entry or deterring or preventing competitive conduct. Secondly, s 21 of the ACL prohibits unconscionable conduct in business–to–business transactions. Thirdly, Pt IVB of the CCA provides for the promulgation of mandatory and voluntary industry codes of conduct. Since 1 July 2015 the conduct of supermarkets as customer/acquirers has been regulated by the Food and Grocery Industry Code of Conduct. This article examines these three different approaches. It considers them against the background of the misconduct at issue in ACCC v Coles Supermarkets Australia Pty Ltd which the ACCC chose to litigate as an unconscionable conduct case, rather than a misuse of market power case. The article also considers the strengths and weaknesses of each of the three approaches and concludes that while the three approaches address different problems there is scope for overlap and all three should be retained for compete coverage.

This Chapter considers a number of sector-specific access regimes that apply to infrastructure that exhibits natural monopoly characteristics. With the exception of Pt XIC of the CCA which regulates access to telecommunications infrastructure, they adopt the same form of negotiate-arbitrate model found in Pt IIIA of the CCA. In the event of a failure to negotiate commercial terms and conditions of access they allow the regulator to impose cost based (building block)tariffs. The regulator's decisions are subject to merits review and/or judicial review. The Chapter is divided into four Parts: • Part I considers access regulation in the electricity sector; • Part II considers access regulation in the gas sector; • Part III considers access regulation in the telecommunications sector; and • Part N considers access regulation in relation to port and rail bulk supply chains.

Since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 it has been recognised that corporations with substantial market power are subject to special responsibilities and restraints that corporations without market power are not. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 McHugh A-CJ, Gummow, Callinan and Heydon JJ in their joint reasons stated (at [76]), that s 46 of the Competition and Consumer Act 2010 (Cth) (CCA) can operate not only to prevent firms with substantial market power from doing prohibited things, but also compel them positively to do things they do not want to do. Their Honours also stated (at [126]) that the proposition that a private property owner who declines to permit competitors to use the property is immune from s 46 is “intrinsically unsound”. However, the circumstances in which a firm with substantial power must accommodate competitors, and private property rights give way to the public interest are uncertain. The purpose of this Note is to consider recent developments in two areas of the CCA where the law requires private property rights to give way to the public interest. The first part of the Note considers two recent cases which clarify the circumstances in which s 46 of the CCA can be used to compel a firm with substantial market power to accommodate a competitor and allow the competitor to make use of private property rights in the public interest. Secondly, on 12 February 2014 the Minister for Small Business, the Hon Bruce Billson,released the Productivity Commission’s Final Report, on the National Access Regime in Pt IIIA of the CCA (National Access Regime, Inquiry Report No 66, Canberra). Pt IIIA provides for the processes by which third parties may obtain access to infrastructure owned by others in the public interest. The Report recommends that Pt IIIA be retained but makes a number of suggestions for its reform, some of which will be briefly considered.

In September-December 2012, 548 financial planning retail clients and 77 financial advisers responded to online surveys addressing consumer satisfaction with financial planning services and the provision of information concerning regulatory and rights issues. Retail clients commented on areas related to the best interests duty in s 961B of the Corporations Act 2001 (Cth), in particular the extent to which advisers considered their clients’ financial objectives and lifestyle situations, and the client-centredness of the financial advice they received. Retail clients also indicated their level of awareness of their substantive rights in relation to receiving advice, the legal obligations imposed on advisers, and whether they would access internal and external complaints processes if warranted. Advisers reported on the extent to which they provide clients with information relating to their substantive rights, and complaints processes available to them. Responses were analysed in relation to client demographics (e.g., age, gender, education), and experience of financial advice. This article reports on the findings of the surveys and their implications for financial planners.