6.1 Current understanding by consumers and businesses of Australia’s laws on implied conditions and warranties is limited, leading to confusion and uncertainty about the application of the law. It is critical that Australia’s consumer agencies, retailers, manufacturers/importers and consumers have a common understanding about the nature and effect of the new statutory consumer guarantees.
develop and publicise a single, simple message about statutory consumer guarantees and retailer and manufacturer/importer obligations, to inform and educate consumers and businesses about statutory consumer guarantees;
develop, publish and distribute a single, clear and unambiguous notice for display at the point of sale, which can be used by all retailers to tell consumers about their statutory consumer guarantees. This could be done in conjunction with retailer and consumer representative bodies; and
develop and publish clear and consistent information and guidance for consumers about statutory consumer guarantees and options for dispute resolution.
6.3 Retailers and manufacturers/importers have an important role in ensuring that consumers are aware of their statutory consumer guarantees. Retailers and manufacturers/importers should ensure that any information that they publish or provide to consumers about statutory consumer guarantees is clear, accurate and unambiguous.
6.4 Retailers should be strongly encouraged to display the notice recommended in Finding 6.2 at the point of sale. This notice would be available from all consumer agencies. Voluntary take up of this initiative should be considered as part of the review of enforcement and administrative arrangements under the Intergovernmental Agreement for the Australian Consumer Law, or earlier if required. If there is evidence that retailers are not informing consumers of their statutory consumer guarantees, consideration should be given to the introduction of a legal requirement to display such a notice in a form prescribed by the Minister.
Enforcement and dispute resolution (Chapter 7)
Findings
7.1 All consumers should have access to low cost dispute resolution mechanisms, such as tribunals or small claims processes, to facilitate timely resolution of claims.
7.2 Ideally, State and Territory governments should develop a consistent approach for all existing small claims court and tribunal processes so as to give consumers a consistent and distinct pathway to access dispute resolution mechanisms for statutory consumer guarantees in all Australian jurisdictions, and in New Zealand.
7.3 In doing this, State and Territory governments should review existing dispute resolution processes in each jurisdiction, together with New Zealand, and develop consistent and uniform approaches to procedural issues including:
7.4 State and Territory governments, in conjunction with the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC), should develop and publish clear, consistent information about consumers’ options for resolving disputes about statutory consumer guarantees.
7.5 As part of the development of administrative arrangements in the enforcement of the Australian Consumer Law, state and territory consumer agencies, together with the ACCC and ASIC, should identify emerging consumer issues concerning statutory consumer guarantees and coordinate regulatory and enforcement responses to these issues.
7.6 To clarify consumer understanding and business obligations about statutory consumer guarantees, Australian governments should agree to include a provision in the Australian Consumer Law which reflects the existing section 53 of the Trade Practices Act 1974, and particularly paragraph 53(g) which prohibits:
a false or misleading representation concerning a:
a false or misleading representation concerning any actual or implied requirement by a person to pay for a contractual right equivalent to a statutory consumer guarantee or any other statutory right or benefit that person may enjoy.
Findings (continued)
7.7 Given the limited application of paragraph 53(g) to date in preventing retailers and manufacturers/importers from misrepresenting consumer rights under Part V, Divisions 2 and 2A of the Trade Practices Act 1974, a consistent body of law around the Australian Consumer Law will need to be developed. CCAAC considers that the law would benefit from the pursuit and publication of test cases under the new provisions in the Australian Consumer Law recommended in finding 7.6.
7.8 CCAAC views the role of the Australian Competition and Consumer Commission, the Australian Securities and Investments Commission and state and territory agencies as continuing to enforce the false, misleading and deceptive conduct provisions of the new Australian Consumer Law as they apply to the new statutory consumer guarantees. Any issues relating to enforcement and dispute resolution for consumer guarantees should be considered as part of the review of enforcement and administrative arrangements under the intergovernmental agreement for the Australian Consumer Law.
7.9 CCAAC considered various ways to encourage compliance by retailers and manufacturers. These include imposing criminal liability, imposing liability for civil pecuniary penalties, providing consumer agencies with the power to secure compensation in respect of any systemic failure to honour guarantees and providing consumer agencies with power to secure redress for consumers in respect of a failure to honour a statutory guarantee at the discretion of the relevant consumer agency. CCAAC considers that it would not be appropriate for consumer agencies to apply civil or criminal penalties in respect of failures to honour consumer guarantees. CCAAC favoured an approach whereby consumer agencies would have the power to take action on behalf of consumers to enforce their statutory consumer guarantees, where such an action would encourage compliance with the law.
