1. THE AUSTRALIAN CONSUMER LAW (ACL)
CHAPTER 20
THE AUSTRALIAN CONSUMER LAW (ACL)
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2. INTRODUCTION TO ACL
On 24 May 2008 the Ministerial Council on Consumer Affairs (MCCA) agreed to commence work on a new consumer law for Australia.
Motivation for this came from a divisive plethora of legislation amongst the various Australia jurisdictions.
The new ACL is part of an amendment of the old Trade Practices Act 1974, which becomes the Competition and Consumer Act 2010, and of which the ACL forms Schedule 2.
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3. IMPLEMENTATION OF THE ACL
The new ACL will be implemented in two stages:
July 2010: Unfair Contracts regime
Jan 2011: The balance of ACL, including unfair practices provisions.
The ACL is regarded as an “Applications Law”, which means it will be adapted in each State and Territory as its own law. Previous consumer legislation will be repealed.
The ACCC will continue to enforce the ACL assisted by current State and Territorial agencies.
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4. MAIN CHANGES IMPLEMENTED BY ACL
New definitions and interpretative provisions
Unfair Contracts provisions
Unfair Practices provisions, including amendments and additions to existing provisions
National regime on unsolicited consumer agreements
National product safety regime
National provisions on information standards
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5. STRUCTURE OF ACL ACL is divided into “Chapters”:
Chapter 1: Definitions and interpretation of key consumer law concepts
Chapter 2: General protections – standards of business conduct
Chapter 3: Specific protection for consumers under certain unfair practices provisions
Chapter 4: Offences
Chapter 5: Enforcements and remedies
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6. UNFAIR CONTRACTS
First part of ACL was passed in March 2010 to take effect on 1 July 2010 in relation to the Unfair Contracts provisions.
Because the remaining portion of the ACL will take effect from 1 January 2011, any unfair term in a standard form consumer contract would be void.
In considering what is a “standard form” contract, regard will be had to what is in general use in a particular industry or practice.
An example of such a “standard form” contract would be the Contract for Sale of Land in general use in conveyancing practice in NSW. A portion of this contract is reproduced in AGBL, Ch16 at [16.460] p 563.
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7. Who has the “bargaining power” in the contract?
WHAT FACTORS WOULD BE USED IN EVALUATING IF A CONTRACT IS “STANDARD FORM”?
Who has the “bargaining power” in the contract?
Who prepared the contract?
Did one party have a requirement to reject or approve any particular terms in the contract?
Was negotiation of any terms possible?
Were particular circumstances or characteristics of either party taken into account?
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8. ENFORCEMENT OF AN UNFAIR CONTRACTS REGIME
Three agencies will share responsibility for administering the new unfair contracts laws:
1. ACCC
2. ASIC
3. various State and Territorial consumer agencies in each jurisdiction
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