Revision of the United Nations Guidelines
For Consumer Protection (1985 – 2013)
Contribution
by
Australia
The views expressed are those of the author and do not necessarily reflect the views of UNCTAD.
Background to Australia’s consumer policy framework
The Competition and Consumer Act 2010 (CCA), which includes the Australian Consumer Law (ACL) is
the principal consumer protection law in Australia. The ACL commenced on 1 January 2011 and is
set out in Schedule 2 of the CCA. It is the product of a harmonisation process and replaced
provisions scattered across over 20 national, state and territory consumer laws with one law. It
means that all consumers in Australia have the same rights and all businesses have the same
obligations, irrespective of the state or territory in which they transact. Mirror provisions apply with
respect to financial services products and services under Division 2, Part 2 of the ASIC Act 2001.
The ACL applies to all businesses conducting business in Australia, including multinational
corporations headquartered offshore, as well as to conduct engaged in outside Australia by
businesses incorporated or carrying on business in Australia, Australian citizens or permanent
residents. It is also technology neutral and applies to online transactions (or e-commerce) as well as
physical transactions. This may mean that businesses located off-shore that transact business online
in Australia are affected by the ACL.
The implementation of the ACL followed a rigorous analysis of consumer policy in Australia,
underlined by reviews conducted by Australia’s Productivity Commission (the Government’s
independent research and advisory body) on the Australian Consumer Product Safety System, and
Australia’s Consumer Policy Framework, which recommended the development and implementation
of a single national consumer law.
The ACL includes a number of important and balanced protections for consumers, including:
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core consumer protection provisions prohibiting misleading or deceptive conduct,
unconscionable conduct and unfair contract terms in standard form consumer contracts;
specific prohibitions or regulation of unfair practices, including particular instances of
misleading or deceptive conduct, pyramid selling, unsolicited supplies of goods and services,
component pricing and the provision of bills and receipts;
a national legal framework for unsolicited selling, including door-to-door trading and
telephone sales;
a national law for consumer product safety, that replaced the existing Commonwealth, state
and territory laws on consumer product safety; and
a system of statutory consumer guarantees, that replaced the existing Commonwealth and
state and territory legislation about implied conditions and warranties.
The ACL reforms also introduced strengthened enforcement and consumer redress provisions.
The Commonwealth Treasury has policy responsibility for competition and consumer policy in
Australia. The ACCC is an independent statutory authority with specific responsibility for enforcing
the ACL. The ACCC’s powers and functions include the power to investigate possible breaches and,
where appropriate, bring proceedings against those alleged to have breached the ACL. The ACCC
also administers the product safety provisions of the ACL and also provides advice to the Australian
Minister responsible for product safety on possible regulatory approaches to unsafe or dangerous
consumer products. Further information about the ACCC is available on its website, at
www.accc.gov.au. Additionally, any individual or business whose interests are affected by a breach
of the provisions of the ACL is generally entitled to take action for that breach (for example in court
or in low-cost tribunals established by state and territory governments, such as the Victorian Civil
and Administrative Tribunal). The Australian Securities and Investments Commission (ASIC) is
responsible for enforcing the consumer protection provisions of the ASIC Act 2001. Further
information about ASIC is available on its website, at www.asic.gov.au.
Further information about the ACL is available at www.consumerlaw.gov.au. Please also find
attached a backgrounder on the ACL and its provisions which may be useful to you.
Institutional framework underpinning the Australian Consumer Law
The ACL is the product of a cooperative process by the Commonwealth Government and state and
territory governments. The ACL is administered by the COAG Legislative and Governance Forum on
Consumer Affairs (CAF), which is made up of Australian and New Zealand Ministers with
responsibility for consumer affairs. Consumer Affairs Australia New Zealand (CAANZ), which is a
forum of Australian and New Zealand senior officials with responsibility for consumer affairs, is a
sub-committee of CAF and is the primary forum for canvassing consumer policy matters. CAANZ is
supported by three advisory committees and a consultative committee:
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the Policy and Research Advisory Committee (PRAC) focuses on the development of
common policy approaches to national consumer issues;
the Education and Information Advisory Committee (EIAC) provides a forum for national
cooperation and coordination on educational and information activities relating to the ACL
and consumer matters more broadly;
the Compliance and Dispute Resolution Advisory Committee (CDRAC) focuses on national
cooperation and coordination for compliance, dispute resolution and enforcement activities
relating to the ACL; and
the Product Safety Consultative Committee (PSCC) provides a forum for regular engagement
with state and territory consumer agencies on product safety issues.
These committees facilitate a number of the aims in the UN Guidelines, including educating
consumers and businesses on their rights and responsibilities under the ACL and ensuring
compliance with the law. These committees also contribute to the effectiveness of the
Government’s ability to develop, implement and monitor consumer policy matters across Australia.
Product safety regulation in Australia
The Australian Government applies a rigorous product safety law under the ACL. The
Commonwealth, states and territories take a coordinated approach to the application and
enforcement of the product safety law across Australia. The product safety requirements are
administered by the ACCC and jointly enforced by the ACCC and state and territory consumer
agencies.
The ACCC and state and territory consumer agencies are also responsible for monitoring the market
to detect unsafe goods and work out ways to address any hazards or encourage safe practices. This
can be through consumer awareness campaigns, product bans, recalls or product standards. The
ACCC also administers the mandatory reporting of death or serious injury or illness of a person
caused or possibly caused by a consumer good supplied into the Australian market. Further
information about the product safety framework is available on Product Safety Australia’s
website: www.productsafety.gov.au. Product Safety Australia’s website also allows consumers and
suppliers to make an inquiry or to report an unsafe product to the ACCC or their local consumer
agency for their consideration.
A number of other frameworks also apply with respect to ensuring the safety and appropriateness of
particular products supplied in Australia. For example, the Therapeutic Goods Administration (TGA)
is responsible for ensuring that pharmaceutical goods available for supply in Australia are safe and fit
for their intended purpose. Further information about the regulation of such products is available
on the TGA’s website, at www.tga.gov.au. Food Standards Australia New Zealand (FSANZ) is an
independent, expertise-based statutory authority that develops and maintains food standards to
improve food safety and the health of people in Australia and New Zealand. Information about
FSANZ and food regulation in Australia is available at FSANZ’s website, at
www.foodstandards.gov.au. The common law action for negligence also provides a remedy to
consumers where a duty of care is owed, the supplier/manufacturer fails to take reasonable care to
avoid breaching that duty of care and this causes harm to the consumer.
The Australian Consumer Law and promoting sustainable consumption
The aim of the consumer protection framework in Australia, underpinned by the ACL, is to provide a
set of basic rights and responsibilities which allow consumers to engage confidently in the
marketplace and support them in making their own purchasing decisions. In general, the consumer
policy framework is not aimed at promoting consumption of particular goods or services, or types of
goods or services.
However, businesses in Australia are entitled to label their products as meeting particular standards
(or otherwise claim that their products meet such standards, for example in advertising), including
that they are environmentally-friendly, provided that they are not misleading or deceptive. Under
the ACL, businesses are prohibited from engaging in misleading or deceptive conduct, or making
false or misleading representations, including in relation to the nature, manufacturing process or
characteristics of any good.
Other frameworks also apply with respect to specific sectors and products. For example, FSANZ
maintains the Australia New Zealand Food Standards Code, which includes a number of
requirements with respect to the labelling of food products. The Code sets standards for what
information must be included on food labels, such as use by dates, ingredients, certain allergens,
instructions for storage and preparation, and advisory and warning statements. In other matters,
such as a number of areas of energy, transport and housing regulation, the Australian Government
has a national leadership role, but state and territory governments retain particular responsibilities.
International cooperation
In terms of international cooperation, Australia engages with a range of partner economies and
forums on consumer policy and enforcement matters. The Commonwealth Treasury is a member of
the OECD’s Committee on Consumer Policy. The Committee is currently exploring issues around ecommerce, including payment systems and digital content products. In 2010, the Committee
established a Working Party on Consumer Product Safety. The ACCC chairs this Working Party. On
19 October 2012, the Working Party launched a Global Portal on Product Safety. This database will
help improve coordination between regulators on product safety and allow consumers to check
whether a product is subject to a recall order in another jurisdiction. The Working Party has also
created an online inventory of policy and regulatory developments worldwide in product
safety. Other projects include the development of an international injury database; and facilitating
improved understanding and alignment of risk assessment processes. In October 2013 Australia will
co-host the International Consumer Product Health & Safety Organisation (ICPHSO)
Conference. Planning on this important international conference has commenced.
In addition, the ACCC also engages with a number of other international forums (such as the APEC,
ASEAN and ICPEN) and partner economies to promote and help develop effective competition and
consumer protection regimes around the globe, as well as to improve dialogue with international
counterparts to enhance information sharing, and facilitate investigative and enforcement
cooperation.
Australia also engages with relevant international forums and partner economies in relation to a
range of other policy areas that impact on consumers. For example, Australia proactively engages
with the Codex Alimentarius Commission on the development of food standards internationally,
with a view to ensuring that such regulation remains robust and appropriate to protecting the health
of consumers. The Commonwealth Department of Agriculture, Fisheries and Forestry leads our
engagement with the Commission.