Discuss about the Business Law for ACL.
The legislature has got the authority to make laws for the safety of people and it should be developed keeping in mind the bars contained under the supreme law of land. The ACL was developed on as advised by the Ministry of consumer Affairs to present that it is uniform law made for the whole country. It is applicable in the all the jurisdictions following the same rules and policies. Ultimately, the provisions of this Act are made in respect of individuals and not in respect of any body of individuals. The creation of this law has not altered in any way the applicability of the Commonwealth or a State or Territory under the Australian Constitution.
Consumer protection implies safeguarding the consumers and protecting them from the unethical practices of vendors. It means to adopt precautionary measures to protect the individuals from the wrong acts performed by traders and provide them with the remedy to address their grievances and dispose of the cases speedily. The consumers are harassed every day and it is the state’s duty to save them from the misconduct of traders. The numerous wrong activities which are done by traders these days include mixing toxic elements with the eatable items which is proved fatal for the health of people, selling of products which are not in consonance with the prescribed standards, sale of fake goods, selling the products to consumers using wrong weights, practicing black marketing to create changes in prices, charging high price than the MRP, sale of product not matching the quality and quantity shown in advertisements (Paterson & Wong, 2014).
The consumers are required to be safeguarded because it is the moral and legal duty of the State to push the businessmen and traders to adopt ethical approaches and help the consumers by giving them what they actually expect. There is a dire need to strengthen the awareness among consumers related to the rights available to consumers against any ill practice performed by the vendors. The consumer should be treated as the topmost priority of the vendors because they are the ones for whom the product is manufactured, to whom the product is sold and by whom the product is consumed and the traders must give right deal to them without performing any act of deception on them. The harassment of customers is against the law of every country and it is the duty of vendors not to perform any bad conduct that might exploit consumers. The consumers want to take full worth of their money and any act of deception might force them to lose faith in the market as well as the law of the country (Government, 2012). The competitive advantage can be created by providing fair deals to consumers and vendors who perform malpractices lose their customers very easily because in today’s era, almost every person is aware of his rights and can sue without hesitation. The law has provided speedy disposal of such cases which motivates the people more to address such cases.
The Australian consumer law is the law of the country in favor of consumers, which is a uniform national law and encourages fair trade practices and is applicable uniformly throughout the whole country irrespective of the dividing territories. Due to this rule the traders all over the country are guided by the same rules and principles. With the introduction of this law, the productivity commission estimated the profit of $1-5 billion each year to the country. The creation of Australian consumer law has ended the other laws related to safeguarding the interests of consumers and now the uniform law is applicable in the whole of Australia. The idea of developing this law came to the government on the date 2 October 2008 on the idea propagated by the Ministry of Consumer Affairs and the Act came into force on 1 January, 2011. The Australian consumer law is a schedule to Competition and Consumer Act, 2010 and this is another name of the Trade Practices Act, 1974. This law runs across the country with the same application by all the tribunals and courts (Australia, 2016). However, the most important aspect which cannot go unnoticed is that the Australian Securities and Investments Commission Act 2001 is still subsisting and is absolutely valid, but the provisions which are not in conformity with ACL are redundant now.
The Australian Consumer Law (ACL) contains provisions regarding unjust terms of contract, rights available to consumers when deception is performed on them, addressing of issues against retailers and manufacturers, provisions regarding protection of health of consumers by protecting them from adulterated goods, uniform trade practices provisions for all the traders, compensation to consumers, alternative reliefs available to consumers when they are not satisfied by the verdict of consumer courts and replacement and repairs of products keeping in mind the aspect of warranty and guarantee (Commission, 2017).
The ACL helps to maintain a healthy relationship of consumer and vendor. The consumer law prohibits the traders not to perform any kind of misconduct on the consumer that might harm his health. The same provision is given in the ASIC, Act but that is regarding finance. The law also prohibits the vendors to do any unconscionable act. This provision aids to curtail down the unethical and unjust acts done by traders on consumers. The law safeguards the consumers from illegal and immoral terms provided in the contract as entered by the parties. The contracts which we are talking about here are made by traders and the consumers have got the right to accept or refuse to accept the terms and conditions provided in the contract. The misrepresentation of facts in another wrong and this may be done in writing or verbally. The bait advertisements are a part of misrepresentation. Attracting the consumers with false gifts is one such aspect and should not be practiced because the interests of consumers are the highest priority of consumers’ law. These provisions are given from section 18-35 of the Act. This law runs throughout the country in the same manner and no changes are mentioned for any specific jurisdictions. ACL is consistent at all the levels that are federal or state.
The remedy which is given for the consumers to protect their rights made major amendments in 2011and since then consumers have got a huge number of rights which they can avail if in any manner they are not satisfied with the product delivered. The dealing sections are 259-277.
Remedy against retailers: – If the consumers are not happy with the product then the option which is available to them is of replacement or repair. In this case, the consumers have the right to sue the traders to receive damages. In the case of services, the consumer can terminate the contract or demand compensation.
Remedy against manufacturers: – As we all know that the consumers and manufacturers do not have an immediate nexus but they do have close connections. In case the consumer doesn’t know about the whereabouts of manufacturer, he can ask the retailer and it is the duty of retailer to provide all the relevant information which may help consumers reach manufacturers. The products can be replaced or repaired or money can be demanded back. Warranty cards are now given by traders which help the consumers to get their product exchanged when it is returned within the prescribed time limit. The products should be brought back and it is not practical to bring them back in original packing so such loopholes are allowed (Government, 2013).
If the health of the person gets affected by the consumption of goods or services or the same thing happens to the person in whom such person is interested, the compensation can be claimed by that person. Money can also be claimed if the property gets damaged by consuming goods. In case of death of the consumer, the heir or legal representative may file the claim. The provisions are mentioned under section 138- 145.
It is the duty of retailer to provide information to a consumer when he inquires about manufacturers and just in case he fails to do so, consumers can consider him to be a manufacturer and ask for his claim (Corones, et al., 2016).
The vendors are not always at fault and there are cases where consumers are also at fault. In recent times, many cases have been experienced regarding this aspect. So, various defenses are provided to vendors as well, which includes that the vendors are not responsible for any error that arises after the sale of products or any mistake which could have been addressed by consumers with due diligence, traders are not liable when the mistake is not under their control. (Section 142-147)
The Australian Consumer Law deals with three things that cover remedies, powers, remedies and penalties. Performing malpractice on consumers is a civil wrong and compensation can be demanded for it. A number of times the license of vendors is taken away and he is prohibited to conduct business during a certain period of time or under certain areas.
Presently, the traders just want to do one thing that is to earn maximum profits and more than their competitors. For this, they cross limits and start performing acts which they know is not morally sound, but they need to understand that adopting deception is not the criterion. This might be a criterion to earn easy profits, but this may lead traders to fall behind bars. It is the duty of government to conduct seminars and fares to create awareness among consumers regarding the rights available to them (Clements, 2016). This has proved out to be one of the most influential laws in all times as this has benefitted the country in huge monetary terms.
Section 18 of this Act and previously it was a part of the Trade Practices Act 1974 under section 52 as we read above prohibits any act of deception on the consumers to mislead them. It also forbids the advertisements which lead the consumers in the wrong direction, so in this case High Court provided for the importance of this section that holds the consumers safe and many traders do not perform the misconduct because they are afraid of strict actions taken by the judiciary. The decision of the High Court in TPG provides that if the advertisement appears to be is misleading the consumers, which are in contradiction to s 18 of the ACL should be analyzed by the overall picture the ad exhibit and the circumstances in which it is shown. The overall substance of the ad should be taken into account and not the form of the advertisement. A huge number of judges in the High Court (French CJ, Crennan, Bell and Keane JJ; Gageler J dissenting) restored the monetary penalty of $2 million. It was held that the headlines of the ad may mislead the consumers so the whole ad should be seen carefully (Wickham, 2013).
Conclusion
It is very important for the government to make laws to ensure the safety of citizens. In the same way, it is the utmost duty of the judiciary to interpret the laws in the right manner and provide speedy relief to them. The law is made purely in respect of consumers with a few provisions in relation to retailers and manufacturers. So, the consumers should avail the rights available to them and if they don’t, the whole law will stand useless.
References
Australia, C. o., 2016. Unfair contract terms: A guide for business and legal practitioners, Available at: https://www.cbs.sa.gov.au/assets/files/unfair_contract_Guide_ACL.pdf
Clements, G., 2016. Australian consumer law review: Commonwealth of Australia.
Commission, A. C. a. C., 2017. Consumer guarantees: What products and services are guaranteed?. [Online]
Available at: https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees
Corones, S., Christensen, P., Malbon, J. & Asher, A., 2016. Comparative analysis of overseas consumer policy frameworks: Commonwealth of Australia .
Government, A., 2013. The Australian Consumer Law: A framework overview, Available at: https://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf
Government, V., 2012. Australian Consumer Law and Fair Trading, Available at: https://www.legislation.vic.gov.au/domino/web_notes/LDMS/LTObject_Store/LTObjSt7.nsf/d1a8d8a9bed958efca25761600042ef5/1bae4607a706ddb8ca257ad800784a5b/$FILE/12-21a004bookmarked.pdf
Paterson, J. & Wong, V., 2014. Fine Print Disclaimers May Not Protect Advertising from being Misleading: Australian Competition and Consumer Commission v TPG Internet Pty Ltd, Available at: https://blogs.unimelb.edu.au/opinionsonhigh/tag/pecuniary-penalties/
Wickham, B., 2013. Australian competition and consumer commission v TPG internet Pty ltd: High court of Australia, Available at: https://www.hcourt.gov.au/assets/publications/judgment-summaries/2013/hca54-2013-12-12.pdf
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