Consumer Protection (WA)
Consumer protection in Western Australia is governed by the Fair Trading Act 2010. This Act applies Australian Consumer Law, as defined in Schedule 2 of the Competition and Consumer Act, as the law in the state. This means regulations for Australian Consumer Law automatically apply in Western Australia. It also means amendments to Australian Consumer Law require amendments to also be made to the Fair Trading Act in order for the new provisions to be valid in WA.
The Act is administered by the Department of Mines, Industry Regulation and Safety (DMIRS) via its Consumer Protection division.
Consumer Protection at DMIRS
The department’s Consumer Protection division enforces Australian Consumer Law for consumers, businesses, property owners and tenants in Western Australia. This includes:
- helping consumers resolve disputes with businesses, such as disputes over property, building, motor vehicle or product safety issues;
- investigating complaints about fair trading;
- prosecuting offending operators;
- regulating and licensing businesses;
- developing legislation, codes of practice and guideline for consumer protection.
Consumer Protection has officers for specific community sectors, including indigenous consumers, and rural and remote consumers. It also has a dedicated ScamNet division to combat scams, as well as smartphone apps for shopping, renting and monitoring fuel prices.
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
The office of the Commissioner for Consumer Protection was created under Section 55 of the Act. Section 56 of the Act lists the general functions of the role, which are to:
- promote the interests of consumers;
- collect, collate and share information on matters that affect consumers;
- receive, investigate and act on complaints from consumers;
- receive, investigate and act on complaints of fraudulent or deceptive practices;
- advise and educate consumers;
- make recommendations to the Minister on consume issues;
- co-operate or consult with investigative agencies.
The Commissioner is required to administer licensing, registration and certification for certain occupations including debt collectors, employment agents, motor vehicle dealers, land valuers and real estate agents.
Under Section 57, the Commissioner can issue warnings or information about dangerous products or services and the people supplying them; and about unfair business practices and the people engaging in them.
Under Section 58, 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. The Commissioner cannot initiate such action if the amount involved in the matter is more than $100,000 and if an order for specific performance of a contract is sought as the only remedy. They must also have permission from the consumer or business involved, as well as the Minister.
Three groups were created under the Act provide advice to the Minister and Commissioner for Consumer Protection: the Motor Vehicle Industry Advisory Committee (MVIAC), Property Industry Advisory Committee (PIAC) and Consumer Advisory Committee (CAC). MVIAC advises on motor vehicle dealing and repair, including licensing and training. PIAC advises on licensed property occupations as well as on real estate, settlement and land valuation. CAC advises on DMIRS activities and policies that affect consumers, and on consumer research and education.
Consumer Protection can approach a business on behalf of a consumer in an attempt to resolve the problem. If the complaint cannot be resolved, a complaint can be lodged with the Commissioner for Consumer Protection. The agency will try to conciliate or investigate the complaint within 10 days. It there is no resolution, an application can be made to the State Administrative Tribunal for a determination. If there is still no resolution, then depending on the amount of the claim, action can be taken in the Magistrates Court (which has a $75,000 limit), District Court (for claims of $75,000 to $750,000) or Supreme Court (for claims of more than $750,000).
For advice or representation in any legal matter, please contact Armstrong Legal.