Introduction
Law is a very interesting field that encompasses a lot of aspects. The issues are usually covered in different Acts which govern the way in which activities and practices are carried out. There are various Acts in different jurisdictions all having a part to play. Various activities and practices in different countries are governed differently according to the countries laws. The Australian consumer Act has been reviewed and changed in an effort to improve on the aspect of consumer rights as the previous Australian Consumer Act was deemed to be very ineffective (Emerson 2009). This piece of paper gives an in depth evaluation of the new Australian consumer Act in relation to the impact it will have on the rights of the Australian consumers, whether it will be more effective than the previous consumer Act.
Background information: The Old system
Australia is a country that is governed by different laws all aimed at streamlining the practices and activities in the country. The business and trade industry is a major component of the Australian economy due to the income it contributes in terms of revenue. For this reason, there is need to ensure that all the activities and processes in this sector are carried out in an effective manner that facilitates success and prosperity. This could however be made possible through effective legislations for instance the Australian consumer Act among others aimed at ensuring that the different activities involved are carried out in a smooth manner.
A good example of a body responsible for overseeing the business and trade related practices in Australia is The Australian Competition and Consumer Commission (ACCC). This is an autonomous statutory body that was formed in the year 1995 with the main aim of overseeing various trade related practices. It particularly ensures consumer protection through various strategies for instance promoting fair trade and competition in the market to the advantage of the Australian consumers, the businesses and the community at large. It is also charged with the responsibility of ensuring that all individuals and business organizations comply to various laws for instance the consumer protection law, the commonwealth competition law and the fair trade law. Regulation of national infrastructure services is also under this body (Australian Government 2011).
Although the old system served its purpose for the time it reigned, it was associated with some form of limitations on the side of what the Act could do hence playing a part in limiting its powers and effectiveness. The fact that the consumer protection Act and system was controlled by the state is enough justification of its effectiveness level. This is because the state has the power to manipulate it for its benefit as opposed to that of the consumers. Limiting the powers entitled to the consumers and other representative bodies is also a contributing factor towards the inefficiency of the old system. The old system was also governed under the State law rather than having specialty that is more directly connected to trade and hence the consumers were not well represented.
In a nut shell the old system was full of defaults and hence the urge to come up with a new law aimed at rectifying the failures of the old system. In regard to the Consumer Affairs Department, although the old system served the consumers for the period it was in power, the above discussion is enough evidence that it was not very successful especially when compared to the new system. This conclusion could be derived from the degree it was able to represent the consumers and fight for their rights. To put it briefly, the consumers were not empowered through the old system and the state had more control of what transpired between the consumers and the suppliers making it difficult for the consumers to take charge (International Academy of Commercial and Consumer Law, Conference and King, B.D. 1986).
Australian consumer Act: the New System
Starting January, this year (2011), Australia is governed by one national consumer law which is the Australian consumer law (ACL). This Act is very exhaustive covering various consumer related aspects for instance the product safety law, unfair contracts and practices law, law for unsolicited consumer agreements, law that protects the consumers’ rights when they buy products and services, options for enforcement powers and consumer redress and regulations for lay-by agreements and penalties among others. The consumer law is applied across the whole nation including all the states for the sake of uniformity in the trade and business field. A lot of controversy has risen in regard to the effectiveness of the Australian consumer Act that was enforced in January 2011. Although some people are optimistic that the new Act will have some positive effects on the rights of the Australian consumers, others still think that it will do very little since the situations and factors that surround it are much similar to those that were present during the last regime (Graham 2010).
The new system is a relief to the consumers due to the various positive impacts associated with it more especially in relation to empowering the consumers. The new system is a cooperative system where all the parties involved are actively allowed to participate as opposed to where the system was state controlled. This allows for transparency where every party is alert of what is going on in the business. The new system also entails a national system where it applies or covers the whole nation including all the states and territories as well as all the Australian businesses and individual consumers. This contributes to uniformity and equality in the business practices and activities (Anonymous 2010).
In this new system, the commonwealth is entitled to significant powers when it comes to controlling the activities that are carried out between the consumers and suppliers in an effort to ensure that the rights of the consumers are maintained at all times. The fact that the commonwealth is involved in making the consumer law in the new system is an encouraging factor as this will ensure that the consumer needs are incorporated in the aw and hence well catered for upon implementation. This is as opposed to where the state had full control, in the old system. The new system allows the commonwealth to make the law while the state is left with the task of enforcing it.
There are various benefits that are associated with the new system. The new law benefits both the consumers as well as the businesses. To the consumers, the Australia consumer law simplifies things for them especially in understanding and exercising their rights. This is because it replaces the 20 laws originating from the state, the commonwealth and the territory with just one law. The complex legal terms from the previous law have also been replaced with terms that can be easily understood by the consumers. Better enforcement of the laws and rights is also made possible through uniformity of the law across Australia
Comparing the Content of the Old and the New Systems
There exist some similarities between the new and the old systems. The definition of the consumer is similar in both systems. The items or goods covered are also similar. In both systems, the consumer guarantees do not conform to some goods for instance those acquired for trade or re-supply. Although the differences between the old and the new systems in regard to consumer rights can not be easily identified, it is evident that they are not the same and hence it is expected that there may be some changes in this field of business and trade.
According to the new Australian consumer Act, there are significant reforms in regard to the remedies that are provided in the event that consumers are involved in situations where products and services do not comply with the stipulated consumer’s guarantees. Whereas the older Act and system offered consumers contractual rights against suppliers, the new Australian consumer Act provides the remedies available to consumers in different levels ranging from refunds and replacements all the way to costs and compensations of products and services. However, there are some conditions to the remedies; the suitable remedy that is taken against a supplier usually varies on the degree of the failure or problem issue and hence the ability to rectify it.
The new Australian consumer Act also provides some additional power to the consumer; that of taking direct action for damages against the supplier in cases where the delivered goods and services are not of the acceptable quality or are not inline with the purchase description, where the warranty provided is not respected or adhered to by the supplier or even where some of the after sales services for instance provision of parts and repairing are not delivered accordingly. These are very good provisions that were missing in the old regime and Act and hence some hopes in the undertakings of the consumers since they are in a better position to push for their rights whenever they are denied (Mortensen 2010).
Other notable differences include the fact that the new Act makes provisions for the Australian Competition and Consumer Commission to represent the consumers and take some actions on behalf of them against the suppliers as opposed to where it was not given powers in the old regime. The new Act also allows the minister in charge of trade and business in the country to necessitate that the manufacturers display a notice in regard to the consumer guarantees as a way of allowing for transparency in the actions involved. Express warranties against defects and defaults that could be presented to consumers by the manufacturers is also a concept that is emphasized in the new Act. The Act specifically gives details that clarify different aspects relating to the warranties for instance the terms and the procedure to be followed when claiming the right. Repair of goods is also clarified and emphasized by the new Act making it easy for the consumers to take the right actions in regard to handling the repairers of different kinds of goods for instance electronics.
Above all, the new law has brought about a lot significant changes for instance the standardization of processes throughout the nation, the states and the territories making it easy for all the parties involved including consumers and businesses to understand and adhere to the concepts contained therein. Increased level of protection is also an aspect that is attributed to the new consumer protection law. This has been enabled through the outlining of various practices and how they are supposed to be carried out. Empowerment of the consumers through reinforcing their rights is also a contributing factor towards the increased level of protection as the consumers are more aware of what they are entitled to and can easily demand for justice whenever it is denied (Freehills 2010).
The Empowerment of Consumers
According to Miller and Jentz (2009), consumers are a very essential element when it comes to the field of business and trade. They should therefore be kept in a good position that does not in any way incapacitate them. The empowerment of consumers is very crucial and could be achieved through enforcement of effective laws that protect and safeguard the consumers against any form of exploitation or losses. This could be achieved through giving them more authority to control what transpires between them and the suppliers or manufactures. The new Australian consumer Act has to a large extent contributed to the empowerment of the consumer through the rights it has provided unto them. The rights include the ability to take direct actions against the manufacturer incase of any form of mistreatment or injustice for example where poor quality goods and services are delivered as opposed to the order placed, where the supplier do not comply to some agreed terms and conditions for instance warranty among others. It is therefore clear that the new system empowers the consumers more as compared to the old system through giving them a chance to be actively involved in what takes place around them an aspect that is very positive not only in this field but also in all aspects of life.
The empowerment of the consumers have to a great extent contributed to placing the consumers at a better position, competitive advantage, when it comes to interacting with other businesses even outside the country. This is because they are able to understand all the aspects that surround business practices and are therefore in a position to question whenever they detect a sign of defect or injustice. It is therefore evident that the issue of empowerment which has been strengthened by the new law is very crucial and has contributed to the overall success of the business and trade sector in Australia (Hall 2011).
The Constitutional Problem
There exists some constitutional problem in the Australian consumer law which can be seen in section 51 involving the heads of power. This section of the law permits the commonwealth to take control of the matters referred to it by the state. The problem comes in because both the state and commonwealth possess lawmaking powers but the Australian constitution limits the commonwealth power which should not be the case. Section 51 was for that reason established to bring some changes through allowing for some degree of flexibility. This has in a way been helpful in allowing the commonwealth to exercise authority. There is however, some uncertainty especially about exclusivity and invalidity of the powers granted to the commonwealth by the State (Simmonds and Morris 1978).
Conclusion
Law is a complex field that necessitates a lot of understanding in order to grasp what is contained therein. The Australian consumer Act is a tool directed towards making the lives of the country’s consumer’s worth by fighting for their rights and making their practices move in a smooth manner free from unnecessary obstacles. It provides many provisions in relation to consumer rights for instance warranties, guarantees, refunds as well as all factors associated with buying of products and services. The new Australian consumer Act was enforced in an effort to help solve the problems that were experienced in the old system through the amendments that were made.
Although most people had doubts in the thought that the new Act would bring about positive changes in regards to consumer rights, it is evident that so far, (although enforced less than an year ago), it has improved the situation to a certain degree and people can not therefore render it unhelpful. There are varieties of provisions that have been added hence placing a consumer at a better position to fight for his or her rights whenever they are denied. This is a good step towards reinforcing the consumer rights. For the above reasons, I tend to agree with the commentator’s argument of the fact that that the new Act will have a noteworthy impact on the rights of the consumers in Australia and differ with what people consider to be the reality; the fact that the new law will have little positive contribution on the right of the Australian consumers. Empowerment of the consumers is enough prove that their position in the market is reinforced.
Reference List
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