Consumer Protection (ACT)
Consumer protection in the Australian Capital Territory is governed by the Fair Trading (Australian Consumer Law) Act 1992. This Act applies Australian Consumer Law, as defined in Schedule 2 of the Competition and Consumer Act, as the law in the state.
The Act is administered by Access Canberra, part of the ACT Government’s Chief Minister, Treasury and Economic Development Directorate. The agency is also responsible for administering a diverse range of other ACT acts, including the Agents Act 2003, Eggs (Labelling and Sale) Act 2001, Retirement Villages Act 2012, Sale of Motor Vehicles Act 1977, Security Industry Act 2003 and Smoke-Free Public Places Act 2003.
Fair Trading enforces Australian Consumer Law for consumers, businesses, property owners and tenants in the ACT. This role includes:
- advising and educating consumers and businesses about their rights and obligations;
- ensuring products meet safety standards;
- registering and licensing businesses and occupations;
- facilitating dispute resolution;
- enforcing compliance through sanctions and remedies.
Under Australian Consumer Law, businesses must guarantee their products and services. The guarantees provide consumer rights when products or services are defective.
Products must be safe, lasting, have no faults, look acceptable and be fit for purpose. They must also:
- match all descriptions, on packaging and in advertising;
- come with full ownership and undisturbed possession;
- not carry hidden debts or charges;
- meet any extra promises, such as lifetime guarantees;
- have spare parts and repair sites available unless a consumer is told otherwise.
- be provided with sufficient care, skill and technical knowledge and avoid loss and damage;
- provide results agreed by the parties;
- be delivered in reasonable time when there is no end date.
Commissioner for Consumer Protection
Section 32 of the Act states a Commissioner for Fair Trading must be appointed by the government. Section 33 of the Act lists the general functions of the role, which include:
- to receive, investigate and refer complaints about fraudulent conduct or unfair practices;
- to investigate compliance with fair trading legislation;
- to conduct research on consumer and fair trading issues;
- to inspect business records and accounts;
- to advise and educate the public.
Consumer protection complaints
Fair Trading prioritises consumer protection complaints according to:
- whether there is a threat of serious injury;
- whether there is a blatant breach of legislation alleged and specific evidence or information has been provided to support the allegation;
- the number of people affected or disadvantaged by the alleged action;
- whether the behaviour is recurring or systemic.
Investigators appointed by the Commissioner visit businesses regularly on routine compliance checks and in response to a consumer protection complaint or identified problem. They also conduct proactive compliance activities for occupations such as real estate agents, motor vehicle dealers, liquor licence holders and security officers.
Under the Act, investigators are entitled to:
- enter a business during work hours without a warrant;
- conduct inspections and investigations;
- conduct interviews and making inquiries;
- take photographs, recordings and measurements;
- examine and copy documents;
- seize items.
If a serious breach of fair trade legislation is suspected, an investigator can apply to a magistrate for a warrant to enter premises outside of business hours. A magistrate can issue the warrant is they are satisfied there could be a breach occurring at the time or within the 14 days following.
Fair Trading has a range of compliance and enforcement methods available to it, from written warnings and Infringement Notices to enforceable undertakings and prosecution. Other government agencies can also enforce the Act.
The Commissioner of Fair Trading can issue public warnings or information about dangerous products or services and the people supplying them; and about unfair business practices and the people engaging in them.
A business found to have breached fair trading laws can agree to an enforceable undertaking to avoid prosecution. Under this remedy, a business or individual agrees to accept responsibility for their actions, remedy the harm caused, and establish or improve processes to comply with the Act. When considering whether an enforceable undertaking is appropriate for a business, Fair Trading considers factors such as the seriousness of the conduct, the impact of the conduct on consumers, and the product or service involved.
ACT Civil and Administrative Tribunal
If an agreement cannot be reached via mediation, an application can be made to the ACT Civil and Administrative Tribunal. ACAT can determine a consumer dispute in one of several ways, including:
- ordering money be paid or refunded;
- ordering specific performance under a contract;
- ordering rescission of a contract.
If a business breaches its licensing conditions, occupational disciplinary action can be taken against the licensee in the ACAT.
The ACT Ombudsman investigates complaints about actions by ACT government agencies. It has specialist functions including oversight of ACT Police. After considering a dispute, the Ombudsman can recommend, for example, that:
- the matter not be investigated, and provide reasons for this decision;
- the matter be referred to an authority such as the Supreme Court, ACAT or Human Rights Commission to be determined.
Under Section 55 of the Act, the Commissioner can initiate legal proceedings on behalf of a consumer or business if they believe the party has a cause of action or a good defence to an action, and that such legal action is in the public interest. Under Section 66, the Commissioner must have permission from the consumer or business involved, as well as the Minister, to initiate the proceedings.
For advice on consumer protection, or advice or representation in any legal matter, please contact Armstrong Legal.