The civil consumer protection provisions are contained in Part V of the Act and the criminal consumer protection provisions in Part VC. Part VC replicates in substance certain provisions in Part V and gives effect to the drafting requirements of the Commonwealth Criminal Code.
Part V and VC deal with:
unfair practices—Part V, Division 1 and Part VC, Division 2
product safety and information—Part V, Division 1A and Part VC, Division 3
conditions and warranties—Part V, Division 2
actions against manufacturers/importers—Part V, Division 2A
product liability—Part VA.
There is also a consumer protection provision—that on unconscionable conduct—in Part IVA.
The aim of the provisions is to strengthen the position of consumers relative to sellers, distributors and manufacturers by ensuring that businesses compete fairly on price and quality, and by implying into consumer contracts non-excludable conditions and warranties as to quality, fitness and title.
Individuals and corporations can bring private actions in any court of competent jurisdiction for contravention of the consumer protection provisions of Division 1, Part V of the Act seeking damages, injunctions, or ancillary orders. Only the ACCC can apply for a court order requiring corrective advertising.
Under Part VC the ACCC can take action under the criminal consumer protection provisions (which attract monetary penalties) in the Federal Court. The penalties are described in penalty units.
Only an individual or a corporation can bring private actions for breaches of a seller’s conditions and warranties, arising under Division 2, and against manufacturers or importers under Division 2A of Part V.
Actions concerned with product liability can be brought by individuals, or as representative actions by the ACCC on one or more person’s behalf. A claimant must demonstrate that on the balance of probabilities the product supplied by the manufacturer or importer was defective and that the defect was the cause of a loss or injury.
Product safety and product information
The ACCC is responsible for enforcing the civil provisions in Division 1A of Part V of the Act, and the criminal provisions in Division 3 of Part VC which relate to the non-compliance of goods with standards or bans, and for conducting conferences to review proposed and emergency bans or proposed compulsory recalls of consumer products.
Since the beginning of 2005 the Product Safety Policy section of the ACCC has been responsible for product safety policy and product recalls.
Compulsory consumer product standards for a particular good may be made by regulation or declared by the Minister by a notice in the Commonwealth Gazette. There are two types of compulsory consumer product standards.
Safety standards require goods to comply with particular performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging rules, for example, to display warning labels on the flammability of children’s nightwear.
Information standards require prescribed information to be given to consumers when they buy specified goods, for example, labelling garments or household fabrics to indicate the most suitable method of cleaning.
The minister has the power to:
by a notice in the Commonwealth Gazette, declare as unsafe those goods that may cause injury to a person—the supply of goods declared unsafe is banned for 18 months after the declaration. Bans may then be renewed, allowed to expire, or made permanent
issue public warning notices about possibly unsafe goods
order suppliers to recall goods that have safety related defects.
Before goods are declared unsafe, or a permanent ban or compulsory recall order is brought into effect, suppliers of the goods may request a conference with the ACCC to discuss the order. The request must be made within 10 days, or longer if the ACCC permits, and the conference must be held within 14 days.
A supplier may also voluntarily decide to recall unsafe goods. The minister must be notified of the details, in writing, within two days of the voluntary recall.
If it appears to the minister that certain goods create an imminent risk of death, serious illness or severe injury, an emergency order can immediately be made, without a conference, for a ban or a product recall, disclosure of defect and disposal, repair, replacement or refund of price.
The remedies available for breaches of the product safety provisions include:
injunctions
damages
punitive and non-punitive orders
monetary penalties.
Ancillary orders may also be available for persons who have suffered loss or damage because of the conduct.
Individuals who have suffered loss or damage as a result of a failure to comply with a standard, banning order or compulsory recall order can seek, by way of a private action, damages, injunctions or other court order. Depending on the amount of damages, individuals can also seek remedies through a lower court, for example, state, territory or small claims tribunal.
Product liability
Under Part VA, a person who is injured, or whose property is damaged, by a defective product has a right to compensation from the manufacturer of the product. Individuals can bring actions. The ACCC can also bring representative actions on behalf of one or more persons.
