1. Renaming of TPA
The TPA has been renamed and is now known as the Competition and Consumer Act 2010 (Cth) (CCA). For transactions that occurred up to 31 December 2010, the TPA will continue to apply.
2. Repeal of State and Territory laws
All States and Territories have enacted legislation repealing their respective fair trading legislation and adopting the national competition and consumer law regime For transactions that occurred up to 31 December 2010, the previous State or Territory consumer laws will continue to apply.
3. Consumer protection provisions now found in the ACL
The following Parts of the old TPA have been repealed and re-incorporated into the ACL found in Schedule 2 to the CCA. In a number of cases the provisions have been modified:
- Part IVA (“Unconscionable conduct” formerly addressed by sections 51AA – 51AC of the TPA is now dealt with in sections 20, 21 and 22 of the ACL)
- Part V (“Consumer protection” provisions now appear in various places throughout the ACL. For example, the well known section 52 of the TPA is now section 18 of the ACL, while the former section 53 now appears at section 29)
- Part VA (“Liability of manufacturers and importers for defective goods” is now addressed in Chapter 3 of the ACL), and
- Part VC (“Offences” are now addressed in Chapter 4 of the ACL).
4. Infringement notices
Part VIC (infringement notices) of the TPA has also been repealed and moved to part XI of the CCA. Infringement notices can now be issued by the ACCC for alleged breaches of certain provisions of the ACL as an alternative to the commencement of legal proceedings. A person is not obliged to comply with the notice and may instead elect to have proceedings commenced against it. However, in the event of compliance, the regulator is precluded from taking any further action.
5. Consumer guarantees
Statutorily implied conditions and warranties have been replaced with new consumer guarantees. Consumer guarantees are unlikely to create significantly different rights and obligations but are intended to set them out in a clearer way.
Importantly, a person is taken to have acquired goods as a “consumer” where the goods or services:
- cost $40,000 or less, or
- are of a kind ordinarily acquired for personal, domestic or household use, or
- the goods are a vehicle or trailer for principal use for transport of goods on public roads.
Certain exceptions apply, for example, where the goods are acquired to be re-supplied or are to be used up in commercial production or manufacture.
This significantly broader concept of “consumer” under the ACL means that these guarantees will have a much wider application than the former implied conditions and warranties regime. Clearly, a significant number of business-to-business transactions will be subjected to the new statutory guarantees.
6. Product safety law and enforcement
The ACL provides a single national approach and enforcement tools for product safety in relation to consumer goods and product related services including safety bans, product recalls and reporting and notification requirements.
7. Unsolicited consumer agreements
The ACL includes a new, national law for unsolicited consumer agreements which replaces existing relevant State and Territory laws. (Unsolicited consumer agreements include agreements formed through door to door selling, telephone sales and non-retail direct selling.)
The ACL sets limits upon the formation and negotiation of unsolicited consumer agreements including in relation to permitted contact hours, disclosure, the exiting of premises on request and cooling off periods.
The ACL provides simple national rules for lay-by agreements.
The ACL now requires all such agreements to be in writing and the provision of a copy of the written agreement to the consumer.
The ACL implements a criminal offence regime for certain provisions of Chapter 3.
A corporation convicted of an offence under the ACL can have a criminal
conviction recorded against it and pay a fine of up to $1.1 million while an individual face a criminal conviction and pay a fine of up to $220,000.
10. Enforcement and remedies
The ACL introduces some new penalties, enforcement powers and options for redress of consumer grievances.
The enforcement measures available for breaches or suspected breaches of the ACL are:
- infringement notices
- enforceable undertakings
- substantiation notices (the ACCC can issue notices requiring a person to substantiate a claim without having reason to believe that a contravention of the ACL has occurred. Such notices must be in writing and may require persons to give information and/or produce documents that support the relevant claim); and
- public warning notices (the ACCC can issue a public warning notice where there are reasonable grounds to believe that particular conduct contravenes the ACL. To issue such a notice, the ACCC must be satisfied that one or more persons has suffered or is likely to suffer detriment as a result of the conduct and that it is in the public interest to issue the notice. A public warning notice may be issued in response to a failure by a person to respond to a substantiation notice.)).
The remedies available under the ACL are:
- Civil pecuniary penalties
- Disqualification orders
- Non-punitive orders
- Adverse publicity orders
- Compensatory orders
- Redress for non-parties (regulators may seek, pursuant to section 239 of the ACL, particular remedies such as refunds or contract variations to remedy a breach of the ACL in certain circumstances without first establishing the identity of exactly whom the breach affected).