Bills Digest No. 133,
2017–18
PDF version [614KB]
David Markham
Law and Bills Digest Section
25 June 2018
Contents
Purpose of the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Concluding
comments
Date introduced: 28
March 2018
House: House of
Representatives
Portfolio: Treasury
Commencement: The day
after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
June 2018.
Purpose of
the Bill
The principal purpose of the Treasury Laws Amendment
(Australian Consumer Law Review) Bill 2018 (the Bill) is to amend the Competition and
Consumer Act 2010 (the CCA), which includes at Schedule 2 the Australian
Consumer Law (ACL), and the Australian
Securities and Investments Commission Act 2001 (the ASIC Act) to
give effect to a number of proposals recommended in the Australian
Consumer Law Review – Final Report.[1]
The amendments clarify and strengthen consumer protections relating to consumer
guarantees, unsolicited consumer agreements, product safety, false billing,
unconscionable conduct, pricing and unfair contract terms.
It should be noted that this Digest refers to ‘clauses’ in
the ACL, whereas the Bill’s Explanatory Memorandum refers to ‘sections’. This
is not intended to convey a different meaning.
Structure
of the Bill
The amendments in the Bill are set out in 12 Schedules,
with each Schedule relating to a different subject, as follows:
- Schedule
1: admissions of fact
- Schedule
2: listed public companies
- Schedule
3: unsolicited supplies
- Schedule
4: unsolicited consumer agreements
- Schedule
5: pricing
- Schedule
6: disclosure notices relating to the safety of goods or services
- Schedule
7: power to obtain information, documents and evidence
- Schedule
8: non-punitive orders
- Schedule
9: guarantees relating to the supply of services
- Schedule
10: consumer protection
- Schedule
11: consumer protections in relation to financial products and
- Schedule
12: application provisions.
Background
For many years consumer protection laws were applied
through a mixture of Commonwealth and, principally, state and territory
legislation. In Commonwealth law the since renamed Trade Practices
Act 1974 provided such protections, as did state/territory laws of fair
trading, or similar nomenclature.
With effect from 1 January 2011 a nation-wide consumer
protection regime, the Australian Consumer Law (ACL), took effect. This appears
in legislation as Schedule 2 of the CCA, as well as being applied in
each state and territory through each jurisdiction’s applied legislation. Similar
consumer protections in relation to financial products are contained in the ASIC
Act.
To ensure that the consumer protection law remained
adequate and up to date, a wide ranging review was initiated in June 2015 by
consumer affairs ministers through the Legislative and Governance Forum on Consumer
Affairs (CAF). Consumer Affairs Australia and New Zealand (CAANZ) was asked to
initiate a broad-reaching review of the ACL.[2]
The intent of the review was to assess the effectiveness
of the ACL provisions, including the ACL’s flexibility to respond to new and
emerging issues, and the extent to which the national consumer policy framework
had met the objectives set by the Council of Australian Governments when it
established the Intergovernmental Agreement for the Australian Consumer Law in
2009.[3]
Ministers specified that the review consider the
application of ACL provisions that are mirrored in the ASIC Act, and also
consider consumer protections in relation to financial products.[4]
In conducting the review, account was taken of ‘significant
public consultation, findings of consumer and business opinion from the
Australian Consumer Survey 2016, an examination of relevant overseas
developments and a variety of ongoing related reforms at all levels of
government’.[5]
CAANZ issued an interim report in October 2016[6]
and the final report in March 2017.[7]
Concurrent with the CAANZ review, the Productivity Commission (PC) inquired
into consumer law enforcement and administration. The PC’s Final Report was
issued on 12 April 2017.[8]
While the CAANZ review’s aim was to examine the content of the ACL, the PC’s
review focussed on administrative structures and enforcement to ensure that the
content of the ACL could be given effect to. The Bill addresses issues raised
in the CAANZ review, rather than those in the PC’s inquiry.
Following the release of the two reports, the Ministers
for Consumer Affairs met on 31 August 2017 and issued a communiqué. The
communiqué noted that the Ministers had given consideration to the proposals
from the CAANZ review, and classified them into four categories:
- proposals
they noted
- proposals
they agreed to
- proposals
supported for further analysis and
- proposals
directed to the CAF strategic agenda.[9]
The majority of the proposals in the second category
(agreed to) have been drafted as legislative amendments and form the basis of
the Bill. Proposal 18 of the CAANZ final report,[10]
which related to increasing maximum financial penalties, has been the subject
of other legislation.[11]
One other agreed proposal, regarding clarifying the mandatory text requirements
for warranties against defects, would appear capable of implementation by
amending a Regulation in the Competition and
Consumer Regulations 2010, and thus does not necessitate inclusion in a
Bill.[12]
One other proposal, in relation to defining the term
‘voluntary recall’ and increasing associated penalties, does not appear to be
the subject of amending legislation at this stage.[13]
Committee
consideration
Standing Committee for the
Selection of Bills
On 28 March 2018, the Senate Standing Committee for the
Selection of Bills decided not to refer the Bill to a committee.[14]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest the Senate
Standing Committee for the Scrutiny of Bills had not commented on the Bill. The
committee report number 5 (9 May) raised concerns in relation to the privilege
against self-incrimination in item 1 of Schedule 6 (replacing
existing subsections 133D(1) and (2)). The Minister’s response is at page 41 of
report 6 (20 June)
Policy
position of non-government parties/independents
As previously noted, this Bill contains a number of
amendments to the ACL representing the outcome of an extensive review and the
input of Commonwealth, state and territory Ministers of Consumer Affairs from
the two major political groupings. There has been no public comment on the
specific provisions in the Bill.
Position of
major interest groups
Views of major interest groups on various issues were
taken into account by CAANZ in conducting their review of the ACL.[15]
The amendments proposed by the Bill have not attracted any specific comment.
Financial
implications
The Explanatory Memorandum notes that there are no
financial implications.[16]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[17]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights found
that the Bill did not raise any human rights concerns.[18]
Key issues
and provisions
Schedule 1—admissions of fact
Current law
Clause 236 of the ACL allows any person who has suffered
loss or damage because of the conduct of another person in contravention of
clause 18 (misleading and deceptive conduct) or any of the ACL’s other
prohibitions to recover for that loss or damage.
Section 137H of the CCA, ‘is designed to make it
easier for individual applicants to prove their case against a respondent
against whom the Australian Competition and Consumer Commission (ACCC) or some
other party has successfully brought proceedings’.[19]
Accordingly, section 137H of the CCA provides that certain findings of
fact by a court are prima facie evidence of that fact.[20]
The final report of the CAANZ review noted:
A recurring issue raised in the review was the difficulty
that consumers and small businesses face in accessing remedies. Many of the
issues relate to evidentiary rules and broader processes in civil justice
systems and are beyond the scope of the consumer law and this review process.
Nevertheless, the ACL could help ease the evidentiary burden
for litigants if claimants could use admissions made by traders in previous
court cases as evidence in their own cases.[21]
What the Bill does
Item 2 in Schedule 1 to the Bill repeals and
replaces subsections 137H(1) and (2) to expand the range of previously elicited
evidence that can be used in an action under the ACL.
Proposed subsections 137(1) and (2) of the CCA
extend the provision so that admissions of fact made in an original case can
also be used as evidence of that fact in later proceedings, without the need
for further proof. As with other amendments proposed by the Bill, this change
is not retrospective—that is, it will only apply to admissions of fact made
after the proposed provision takes effect.[22]
Schedule 2—listed public companies
Current law
In the Amadio case, Chief Justice Mason explained
that a transaction (contract) will be set aside as being ‘unconscionable’
wherever one party by reason of some condition or circumstance is placed at a
‘special disadvantage’ vis a vis another and unfair or
unconscientious advantage is then taken of the opportunity which has been
created by the ‘special disadvantage’.[23]
This is now reflected in clause 21 of the ACL which prohibits
a person, in the supply or acquisition of goods in trade or commerce, from
engaging in conduct that is unconscionable. Section 12CB of the ASIC Act
sets out in equivalent form a prohibition in connection with the supply or
acquisition of financial services.
In both cases, listed public companies are excluded from
the protection. When the unconscionable conduct provisions were inserted into
the CCA, the relevant Explanatory
Memorandum set out the rationale for the exclusion stating that ‘(listed
public) companies do not require the protection of the unconscionable conduct
provisions...’.[24]
This was based on an assumption that publicly listed companies had the size and
ability to protect their own interests from such conduct.
What the Bill does
This view has changed, with the CAANZ Final Report noting
that ‘public listing is not necessarily a reflection of a trader’s size, level
of resourcing or its ability to withstand unconscionable conduct’.[25]
Consequently, the Report recommended the protections should be extended to publicly
listed companies and this is what the provisions in the Bill do.
Items 1 and 2 of Schedule 2 to the Bill
remove the exception for listed public companies from the unconscionable
conduct provisions of the ASIC Act. Item 5 of Schedule 2 to the
Bill removes the clause excluding ‘listed public companies’ from the unconscionable
conduct provisions of the ACL. Consequently there is no longer any need for
that phrase to be a defined term in the ACL. Item 4 of Schedule 2 to the
Bill the repeals the definition from subclause 2(1) of the ACL.
Schedule 3—unsolicited supplies
Current law
Currently the definition of the term unsolicited
services in subclause 2(1) of the ACL refers to services provided
(emphasis added) to a person without any request by or on behalf of that
person.[26]
However, it has been noted that this definition assumes that some sort of
service is actually provided, and may not cover a circumstance where a person
is billed without any service being provided—for example, where they are billed
for a software update or computer scan that did not in fact occur.
What the Bill does
Item 1 of Schedule 3 repeals and replaces the definition
of unsolicited services in the ACL. The updated definition includes
a service purported to have been supplied, as well as one actually that has
actually been supplied. Items 2–5 of Schedule 3 to the Bill make consequential
amendments to reflect the expanded definition.
Schedule 4—unsolicited consumer
agreements
Current law
The ACL contains specific consumer rights and trader
obligations for uninvited transactions away from a trader’s premises (such as
unsolicited door-to-door and telephone sales). In particular, clause 69 of the
ACL defines an agreement as an unsolicited consumer agreement if
amongst other things:
- it
is for the supply, in trade or commerce, of goods or services to a consumer
- it
is made as a result of negotiations between a dealer and the consumer in each
other’s presence at a place other than the business or trade premises of the
supplier of the goods or services; or by telephone and
- the
consumer did not invite the dealer to come to that place, or to make a
telephone call, for the purposes of entering into negotiations relating to the
supply of those goods or services.
However, according to the CAANZ Final Report these
provisions were intended to apply to suppliers who do not have an established
place of business, such as those trading in public places.[27]
What the Bill does
Item 1 in Schedule 4 to the Bill inserts subclause
69(1AA) into the ACL to clarify provisions about unsolicited consumer agreements
made in public places.
The amendment responds to a decision in the Federal Court[28]
which cast doubt on whether the current wording did in fact cover public places.
To specify that this is the case, the proposed amendment clarifies that transactions
in public places are within the ambit of the unsolicited consumer agreement
provisions.
Schedule 5—pricing
Current law
Clause 48 of the ACL provides that a person must not
state, in connection with the promotion or supply of goods or services, an
amount that, if paid would constitute only part of the price—unless the person
also specifies the single price as a single figure, in a prominent way.
The basis of the single pricing provision is that the
price quoted to a consumer must be the full price to be charged, unless the
consumer chooses optional extras.
What the Bill does
Item 1 of Schedule 5 to the Bill repeals and
replaces paragraph 48(7)(a) of the ACL to address the situation where a
consumer is given the so-called optional extras automatically unless he or she
takes action to opt out of them. An example would be where a consumer is
ordering goods over the internet and some additional good or service will be
provided unless the consumer specifically says they do not want it. Currently
the trader can quote an original price without the inclusion of that extra.
This goes against the spirit of the single price provision.
After the amendment becomes law, the single price quoted
will have to include the cost of that good or service until, or unless, the
consumer opts out. In recognition of the fact that such a change may
necessitate system changes for traders, this provision will take effect 12
months after the Act commences.[29]
Schedule 6—disclosure notices
Current law
The provisions of Part XI of the CCA apply the ACL
as a law of the Commonwealth broadly to the conduct of corporations and
specifically to contraventions of the ACL protections and offence provisions to
corporations. Note the comments by the Scrutiny of Bills committee referred to
above.
Within Part XI, section 133D empowers the Commonwealth
Minister or an inspector appointed by the ACCC to issue disclosure notices. A
disclosure notice can be issued requesting information about a product,
normally in relation to safety issues or concerns connected with that product.[30]
Currently, the provision only allows a disclosure notice
to be served on the supplier of the product. This is problematic as other
parties (for example test laboratories, other traders or consumers) may be in a
better position to provide the required information.
What the Bill does
Item 1 of Schedule 6 to the Bill repeals and
replaces subsections 133D(1) and (2) of the CCA to expand the disclosure
notice provisions so that one can be issued to a person capable of providing
the required information, rather than just to a supplier of consumer goods or
product related services.
Schedule 7—power to obtain
information, documents and evidence
Current law
Currently the Australian Securities and Investments
Commission (ASIC) and the ACCC are only given the power to investigate and take
enforcement action in regard to contraventions or possible contraventions of
the law.[31]
However, while the law provides remedies for unfair contract terms (for example
voiding the unfair term) it does not specifically prohibit such terms appearing
in a contract. Thus their mere inclusion in a contract does not of itself
represent a contravention of the law, so that the investigative powers of the
regulators are not triggered.
What the Bill does
The amendments in Schedule 7 to the Bill are intended to assist
the regulators to investigate unfair contract terms.
Currently section 12GND of the ASIC Act allows ASIC
or a party to a consumer contract or small business contract which relates to a
financial product or the supply of financial services to apply to the Court for
a declaration that a term of the relevant contract is unfair.
Item 1 of Schedule 7 inserts proposed subsection
12GND(6) into the ASIC Act to authorise ASIC to investigate or make
inquiries about the terms of the contract for the purposes of determining
whether to make an application for a declaration to the Court.
Section 155 of the CCA sets out the powers of the
ACCC to obtain information, documents and evidence. Item 2 of Schedule 7
inserts proposed subparagraph 155(2)(b)(v) into the CCA. The amendment
will give the ACCC the power to investigate possible unfair contract terms for
the purpose of determining whether or not to make an application to the Court
for a determination that a term in a consumer contract or a small business
contract is unfair. This amendment will only apply to contracts entered into
after the Act commences.[32]
Schedule 8—non-punitive orders
Current law
Currently clause 246 of the ACL provides that, on the
application of the ACCC, a court can make a range of orders in relation to a
person who has been involved in a contravention of the ACL. One such order is a
community service order.[33]
However, the CAANZ Review noted that it may not be appropriate, or in the
consumer’s best interests, for this person to perform the specified community
service. This may be, for instance, where an investigation has shown that the
person is not qualified to do so or cannot be trusted to do so.[34]
It is perhaps stating the obvious to note that it is probably not in a
consumer’s interests to have an incompetent tradesperson attempt to repair
their own errors.
What the Bill does
Item 1 of Schedule 8 to the Bill inserts proposed
paragraph 246(2)(aa) into the ACL to expand the types of non-punitive
orders remedies that a court can make. This amendment allows the court to vary the
community service order so as to require the contravening person, at the
person’s expense, to engage a third party to perform the specified community service.
Schedule 9—guarantees relating to
the supply of services
Current law
Currently the consumer guarantees which are set out in
Part 3-2 of the ACL do not apply to services that are supplied, in relation to
the transportation and storage of goods, to a consignee in the course of the
consignee’s business.[35]
Under those circumstances, the expectation is currently that the consignee will
be covered by their own insurance.[36]
However, following the reasoning in a High Court decision,[37]
it is unclear whether a business customer, ordering goods for personal use, is
covered by the exemption or not. The original intent of the ACL was that it was
only business transactions that were exempt, and that other transactions of a
personal nature should not be.[38]
What the Bill does
Item 2 of Schedule 9 to the Bill inserts proposed
subclause 63(2) into the ACL to clarify the scope of the exemption from the
consumer guarantees for the transport of storage of goods. The proposed clause
reinforces that it is only business transactions that are exempt. A business
customer, buying personal use items, is not covered by the exemption for that
specific transaction.
Schedule 10—consumer protection
Current law
Subsection 12DC(1) of the ASIC Act relates to false
or misleading representations in relation to financial products that involve
land. It refers to representations in connection with ‘the sale or grant, or
the possible sale or grant of a financial product that consists of, or
includes, an interest in land’.
What the Bill does
The amendments in Schedule 10 to the Bill alter the
wording of section 12DC of the ASIC Act without intending to change their
operation.[39]
To this end, item 1 of Schedule 10 to the Bill omits the reference to
‘sale or grant, or the possible sale or grant’ in subsection 12DC(1) and
substitutes a reference to a ‘supply, or possible supply’. In addition, item
2 inserts proposed subsection 12DC(1AA) into the ASIC Act
to make it clear that the prohibition against false and misleading
representations applies whether or not the representation is made before or
after the financial product consists of, or includes, an interest in land.
The amendments were recommended by the CAANZ Final Report
as necessary to correct inconsistent terminology in the ASIC Act.[40]
However, in solving one problem, this provision may create
another, as the original terms ‘the sale or grant’ and ‘the possible sale or
grant’ remain elsewhere in the ASIC Act; indeed remaining in provisions
that are located quite close to the proposed amendments.[41]
The Explanatory Memorandum states that this is because the proposed amendments
only apply to provisions examined in the course of the ACL Review;[42]
and it is understandable that other terms in the ASIC Act would not be
amended by this Bill without specific consideration.
Nevertheless the lack of consistency is not an entirely
desirable outcome—it is a principle of statutory interpretation that different
words in an Act, particularly words close to each other, prima facie indicate
different meanings,[43]
and this is clearly not the intention here. While extrinsic materials such as
the Explanatory Memorandum state that the change of terminology does not
indicate a different meaning, a future consistent use of terminology in the ASIC
Act might be preferable.
Schedule 11—consumer protections in
relation to financial products
Current law
Currently subsection 12BAB of the ASIC Act sets out
the conditions to be satisfied in determining whether a person provides a financial
service.
What the Bill does
Item 2 of Schedule 11 to the Bill inserts proposed
paragraph 12BAB(1AA) into the ASIC Act so that the definition of financial
services includes financial products. This leads to a number of
consequential changes—reference to financial products is removed from a number
of clauses as its presence is no longer necessary, being subsumed under
financial services.
Other provisions
Schedule 12 does not have any substantive
amendments. Its purpose is to specify that the substantive amendments set out
earlier do not have retrospective application.
Concluding comments
The proposed provisions in this Bill generally represent
fine tuning of the ACL and ASIC Act to strengthen or clarify consumer
protections. The amendments follow an extensive public review of the subject
matter and the agreement of Commonwealth and state and territory Ministers.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Consumer
Affairs Australia and New Zealand (CAANZ), Australian
consumer law review: final report, Commonwealth of Australia, Canberra,
March 2017.
[2]. B
Billson (Minister for Small Business), Review
to ensure national law continues to protect Australian consumers, media
release, 10 July 2015.
[3]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 1.
[4]. Billson
(Minister for Small Business), Review
to ensure national law continues to protect Australian consumers, op.
cit.
[5]. CAANZ,
Australian
consumer law review: final report, op. cit.
[6]. CAANZ,
Australian
consumer law review: interim report, Commonwealth of Australia,
Canberra, October 2016.
[7]. CAANZ,
Australian
consumer law review: final report, op. cit.
[8]. Productivity
Commission (PC), Consumer law
enforcement and administration, Research report, PC, Canberra, March
2017.
[9]. Ministers
for Consumer Affairs, Joint communique,
Legislative and Governance Forum on Consumer Affairs, 31 August 2017.
[10]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 87.
[11]. Parliament
of Australia, ‘Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 homepage’,
Australian Parliament website.
[12]. CAANZ,
Australian
consumer law review: final report, op. cit., proposal 4, p. 26.
[13]. Ibid.,
proposal 7, p. 42.
[14]. Senate
Standing Committee for the Selection of Bills, Report,
5, 2018, The Senate, Canberra, 10 May 2018.
[15]. CAANZ,
Australian
consumer law review: issues paper, (including submissions received),
Commonwealth of Australia, Canberra, March 2016; CAANZ, Australian
consumer law review: interim report, (including submissions received), Commonwealth
of Australia, Canberra, October 2016.
[16]. Explanatory
Memorandum, Treasury Laws Amendment (Australian Consumer Law Review) Bill
2018, p. 3.
[17]. The
Statement of Compatibility with Human Rights can be found at page 19 of the Explanatory
Memorandum to the Bill.
[18]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2018, Canberra, 8 May 2018, p. 97.
[19]. RV
Miller, Millers Australian Competition and Consumer Law Annotated,
Thomson Reuters, Sydney, 2018, p. 929.
[20]. CCA,
subsections 137H(1)–(3).
[21]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 80.
[22]. Item
4 of Schedule 1 to the Bill.
[23]. Commercial Bank of
Australia Ltd v Amadio, [1983]
HCA 14.
[24]. Explanatory
Memorandum, Competition and Consumer Legislation Amendment Bill 2010,
paragraph 2.14, p. 22.
[25]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 50.
[26]. ACL,
clause 40.
[27]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 61.
[28]. ACCC
v ACN 099 814 749 Pty Ltd, [2016]
FCA 403, paragraph 137.
[29]. Item
2 of Schedule 12 to the Bill inserts proposed section 299 into the
CCA.
[30]. CCA,
section 133D.
[31]. ASIC
Act, section 12GND; CCA, section 155.
[32]. Item
3 of Schedule 7 to the Bill.
[33]. ACL,
clause 246.
[34]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 90.
[35]. ACL,
clause 63.
[36]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 27.
[37]. Wallis
v Downard-Pickford (North Queensland) Pty Ltd, [1994]
HCA 17.
[38]. CAANZ,
Australian
consumer law review: final report, op. cit., p. 27.
[39]. Explanatory
Memorandum, Treasury Laws Amendment (Australian Consumer Law Review) Bill
2018, p. 16.
[40]. CAANZ,
Australian
consumer law review: final report, op. cit., pp. 78–9.
[41]. For
example, ASIC Act Section 12DE(1)(b)(iii) will continue to use the terms
‘sale or grant’ and ‘possible sale or grant’.
[42]. Explanatory
Memorandum, Treasury Laws Amendment (Australian Consumer Law Review) Bill 2018,
p. 16.
[43]. DC
Pearce and RS Geddes, Statutory Interpretation in Australia, 8th
edition, Lexis Nexis Butterworths, Sydney, 2014,
pp. 150–1.
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