Consumer Protection, Federal and State Consumer Protection Law - Literature review Example

Business Law Name Institutional Affiliation Business Law Introduction The law governs the conduct of the people ensuring the observance of rights as provided in the constitution. It is the law that structures the legal system providing the citizens with a channel to air their grievances against unfair conduct. Focusing on Australia, an example includes the Australian Consumer Law (ACL) described by Australian consumer law (n.d). The particular law directs the operation of the business, especially the relationship between the customer and the producer. According to Australian consumer law (n.d), it ensures fair trading and consumer protection. Users experience exploitation of various kinds in the procurement of goods or services. Moreover, unfair trading is a common practice in the society following the competition patterns amidst economic constraints. Therefore, the availability of protective laws and their practice at both the national and state level provides much-needed assistance to the Australian consumer (Australian consumer law, n.d). The essay explores consumer protection discussing what is it and why the user needs protection. In particular, it provides insights about the current operation of the consumer protection law at both the state and federal level. More importantly, it addresses the process of customer relief both in and out of a court system following dissatisfaction with a product. Without the consumer law, it is arguable that businesses are prone to disruptions particular the customer relations. Consumer Protection ACL provides the user with multiple areas of protection covering business contracts, product safety, and sales agreement (Australian consumer law, n.d). Here, it is important to understand the concept of consumer protection in managing the knowledge of its practice. Based on Smith (2000), consumer protection covers both a wide and narrow explanation. Focusing on the shallow perspective, it entails protection from risks in the market arising from the competition. Within the market, the consumer may face deception about a product or service putting them at the risk of dissatisfaction (Smith, 2000). Moreover, the user may become ill-information regarding a good or service. Contrastingly, Smith (2000) explains that the broader view addresses the failure of the market to effectively meet the consumer preferences, particular regarding the quality of the output. Therefore, both instances identify the threats to the user following a business transaction performed under unfair circumstances. It is as a result of the aforementioned conditions that the government enforces the consumer protection laws. According to Smith (2000), the law may burn the consumption of a particular product deem harmful or enforces its use if ascertained to be useful. The imperative in the protection policies is the prevention of harm to the public as well as ensure the responsible conduct by the producers (Smith, 2000). Through the law, the users become aware of their rights making them self-protect against the exploitation by the producers. Reaffirming the need to protect consumers, Australian consumer law (n.d) mentions the agenda of the ACL including developing responsible traders, informed customer and improved business outcomes. It is import to highlight the historical development of the ACL as a means to appreciate its benefits and functionality to the Australian government. To begin with, Smith (2000) consumer protection in Australia was a function of the English commercial law such as the Tort and contract laws. At this period, trade occurred under simpler terms following the limited demand for products, low population and competition (Smith, 2000). However, external factors such as industrial revolution and urbanisation raised the cost of search introducing the government based consumer protection laws (Smith, 2000). For Australia, the market changes led to the establishment of The Trade Practices Act 1974(Cth) (TPA) (Paterson, 2013; Smith, 2000). Contrary to the previous consumer protection laws functioning on a state level, TPA operated throughout Australia as a national law (Smith, 2000). Furthermore, it became more effective, especially by addressing short-coming of the traditional laws and mitigating the uncertainty. As it occurs, in 2010 the Commonwealth Parliament re-enacted the TPA to include the ACL as part of the schedule 2 of the Competition and Consumer Act 2010 (Cth) (Paterson, 2013). Following the parliamentary enactment, ACL became fully functional in January 2011 (Australian consumer law, n.d). The imperative in its establishment is the collaboration of the States and Territories and the Australian Government facilitated through the Legislative and Governance Forum on Consumer Affairs (CAF) (Australian consumer law, n.d). Moreover, it functioning is an outcome of a joint effort of both the State and Territory consumer protection agencies and the Australian Competition and Consumer Commission (ACCC). Through the combined administration, ACL covers a wider expanse of the consumer protection with the examples of unfair contracts, consumer guarantees and unsolicited customer agreements (Paterson, 2013). Additional examples discussed by Paterson, (2013) include the regulating of misleading and deceptive conduct, product liability, and unconscionable conduct. Federal and State Consumer Protection Law According to Justice Statement (n.d), the observance of the consumer protection law varies with jurisdiction. The differences across geographies prompt the aim by the government to introduce a national law that mitigates the inconsistency and overlapping laws of the states (Justice Statement, n.d). Consequently, these efforts saw the development of the ACL as a national law recognised by all states and jurisdiction within Australia (Australian Government, 2015). However, it is important to realise that ACL is a Commonwealth law representing the interests of the states and the territory of Australia. Based on Justice Statement (n.d), the TPA 1974 is the primary source of consumer protection laws at the federal level. Through the years, the act has continually undergone reforms enhancing its effectiveness to the course. Similarly, Fletcher Law (n.d) recognises the Competition and Consumer Act 2010 (CCA) (Cth) as the governing body at the federal level. The imperative in the understanding is the transformation of the traditional TPA to the CCA and the current ACL. Based on Fletcher Law (n.d), it is the ACCC that regulates the operations of the ACL. Moreover, the courts and the tribunal reinforce its operations throughout Australia (Australian consumer law, n.d). Concerning consumer protection at the state level, Australian Government (2015) presents the state has the power to make independent laws on consumer protection. The ability to do so follow the territories power enclosed in section 122 of the Australian Constitution (Australian Government, 2015). As previously mentioned, ACL is a Commonwealth law governing the conduct of people as a function of consumer protection law. Furthermore, its creation represents the collaboration of states and territories to benefit from a shared law in an effort to promote inter-state transactions (Australian Government, 2015). According to this understanding, the states of Australia have independent laws on the subject. More evidence on the perspective includes the discussion by Australian consumer law (n.d) providing the particular details of each states’ laws on customer protection. At the state level, Fletcher Law (n.d) points that the law regime is under the regulation of consumer protection agencies. These agencies operate under different policies collectively making the Fair Trading legislation of each state and territory. Examining the practice at the state level, one of the main issues is the wide coverage of trading issues covering both the person and the corporation. Australian consumer law (n.d) provides the examples of specific issues addressed at Canberra including managing a business complaint, providing advice before a purchase; refer the client to other consumer agencies, scams, security services, and product safety. Therefore, at the state level, more consumer issues are covered compared to the federal level which restricts itself to managing the personal challenges in business transactions as well as trade. As a result of the differences in operation of the law, Australian Government (2015) describes how the state and the federal government cooperate in administering effective consumer protection laws. In particular, Australian Government (2015) identify that both the state and territory act together with the CCA recognise ACL as a national law. As a national law, it entails its applicability to the various jurisdictions within the Australian nation. The imperative in the collaboration of both the state and federal law regulating bodies is their ability to direct the consumer to access courts and tribunals, manage the law enforcement, and perform both administrative and judicial reviews of the particular laws (Australian Government, 2015). Through this cooperativeness, the consumer attains the main benefit being that of protection against unfair trade. Accessing Relief As previously states, the law structures the legal systems enabling the availability of effective judgment. According to Australian consumer law (n.d), the observance of ACL and the fair trade legislation by the various judicial bodies establishes firm consumer protection policies. In reference to Australian Government (2015), both the state and federal judiciaries are against the misleading conduct of the trader to the consumer. In essence, the consumer protection policies function to prevent risks of the customer while purchasing or good or service. In the event that the consumer falls victim to such a case, then they are liable to provide proof to the judicial bodies, which then provides relief. In Australia, the ruling on a case about consumer protection proceeds through particular guidelines that aim to identify if a conduct by a trader is an outcome of a deliberate deception to the user. A federal court of Australia (n.d) provides an example of a case mirror an unsatisfied consumer seeking relief. The case in reference is Australian Competition and Consumer Commission v Acquire Learning & Careers Pty Ltd falling under the CCA legislation. Particular of the case include a violation of section 18 of the ACL, where the producer provided a misleading representation of a service. To reach a fair ruling, the Federal Court of Australia (n.d) proceeded to include the various relevant sections of the law pertaining to the conduct of the trader, in this case, the defendant. Moreover, the court examined the evidence of the different consumers to establish the effects of the behaviour of the defendant relative to the stipulation of the law. Proceedings of the case involve declaration on relief and the specific condition to satisfy the granting of relief (Federal Court of Australia, n.d). An example includes declaratory relief where under the section 21 of the Federal Court Act, the court needs to ascertain three conditions to award a declaratory relief (Federal Court of Australia, n.d). The specific settings include the presentation of a real question, availability of appropriate contradictor, and real interest from the applicant requesting the relief (Federal Court of Australia, n.d). Contrastingly, the provision of an injunctive relief requires the relation of the injunction to the matter in the court, availability of a significant relation between the injunction and the contravention, and the designing of the relief to the sole purpose of preventing a repeat of the conduct (Federal Court of Australia, n.d). The accessibility of a relief either within or outside a court system is a function of the jurisdiction of the court to adjudicate the particular matter. In particular, determination of the ability of a court to provide relief as part of the ruling centres on its jurisdiction about the defendant, the justice sought, and the capability of the court to handle the matter relative to its hierarchy. It becomes more challenging to provide relief outside the courts following the jurisdiction position of the court as well as the foreign jurisdiction which may act to alter the availability of relief to the plaintiff. Conclusion In summary, consumer protection provides an imperative balance in the conduct of business without which disruption would occur. The focus of consumer protection is the user who is at risk of deception and unfair trade from the producer. In this case, consumer protection entails the particular laws that prevent harm or losses on the side of the consumer. In Australia, ACL is the primary body providing the public with active protection policies. It is important to realise that ACL functions as a national law developed through the collaboration of the Commonwealth, state and territory bodies. However, its operations differ on the state and federal levels. At the federal level, ACCC together with the courts and tribunal manage its operations, while at in the states, the consumer protection agencies become the responsible body. Concerning the access to relief, important factors to consider include the jurisdiction, the matter at hand, and the relief sort after. Therefore, appropriate management of consumer protection is a collective action in Australia involving the judiciary at both the state and federal level. References Australian consumer law. (n.d) Australian consumer law. Retrieved from http://consumerlaw.gov.au/ Australian Government. (2015). The Australian Consumer Law. Retrieved from http://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf Federal court of Australia. (n.d). Regulator and Consumer Protection Sub-area. Retrieved from. http://www.fedcourt.gov.au/law-and-practice/national-practice- areas/commercial/consumer-protection Fletcher Law. (n.d). Consumer Law. Retrieved from http://fletcherlaw.com.au/service/consumer-law/ Justice Statement. (n.d). Chapter 8 Consumer Protection. Retrieved from http://www.austlii.edu.au/austlii/articles/scm/jchap8.html Paterson, J. M. (2013). Developments in consumer protection law in Australia. Legaldate, 25(2), 2. Smith, R. L. (2000). When competition is not enough: consumer protection. Australian Economic Papers, 39(4), 408-425. Read More