Consumer Protection TPA/ASIC/Fair Trading

Consumer protection provisions of the TPA have been included in the ASIC Act Trade Practices Act The main aims of the TPA are: 1. To prevent conduct by corporations and other businesses that restricts competition and reduces efficiency in the Australian Market 2. To protect consumers from unfair practices of business.

The Fair Trading Acts All states and territories in Australia have a Fair Trading Act that is virtually identical to the consumer protection provisions of the TPA. The TPA & FTA protect consumers by prohibiting unfair practices and providing a wide range of punishments and remedies

Who is a Consumer? A consumer is defined as a person who acquires goods or services that cost $40K or less, or goods and services that are normal acquired for personal, domestic or household use, including a commercial road vehicle of any value.

Consumer Protection Provisions Unconscionable conduct Misleading or deceptive conduct False representations

Unconscionable Conduct The Trade Practices Act prohibits unconscionable conduct I.e. taking an unfair advantage over someone Unconscionable conduct has come to refer to circumstances which have the following elements: R one party to a transaction suffered from a special disability or disadvantage, in dealing with the other party; and R the disability was sufficiently evident to the stronger party; and R the stronger party took unfair or unconscionable advantage of its superior position or bargaining power to obtain a beneficial bargain

Misleading or Deceptive Conduct A corporation will infringe s52 of the TPA if it engaged in conduct in trade or commerce that was misleading or deceptive or was capable of being misleading or deceptive. This is the most used section of the TPA and is relatively easy to prove.

Misleading or Deceptive Conduct In general terms this Part of the Act prohibits conduct that is misleading, unfair or dishonest. It has an impact upon virtually all business dealings, particularly advertising and selling. It applies regardless of whether business is done directly via direct mail, over the phone, over the internet or otherwise.

Misleading or Deceptive Conduct 3 key principles of “Don’t Mislead” – Intent – Target audience – Overall impression misleading statements about fees, charges, interest rates and other prices, any unsubstantiated claims about features, benefits or value of goods & services.

Misleading or Deceptive Conduct You can mislead someone by: R lying to them R leading them to a wrong conclusion R creating a false impression R leaving out or obscuring important information, R making false or inaccurate claims Conduct can be misleading and deceptive by a positive statement or actions or by an omission which makes something misleading.

False Representations s53 prohibits untrue statements about goods or services. They include areas such as: Standard or quality Newness of goods Placing of orders The buyers need for goods and services Limits on the rights and remedies of consumers

Other false or misleading statements Offering gifts without intending to supply them False or misleading statements regarding goods protected under intellectual property treaties Bait advertising – where goods or services are not available Referral selling – where consumers are offered a commission for referring other customers, provided these consumers first enter into a contract with the business. Accepting payments without intending to supply

Other prohibited practices Harassment or coercion – selling or debt collection Pyramid selling – the promotion of franchises and distributorship where profits are based almost entirely on entry fees. Inertia selling – supplying unordered goods or services and then seeking payment for them

Remedies for breach of TPA Fines Injunctions Order to disclose information or carryout corrective advertising Damages Ancillary orders – a business could be ordered to void or vary a contract, to refund money etc.