Australian consumer laws

The key points for you to consider?

The new ACL has cleared up many grey areas and strengthened others. Points considered essential for businesses to take note of include:

• Using a contract is vital, whether between you and the consumer or you and the service provider.
• The introduction of right of rectification for ‘minor’ repairs. Though the repair must be done free of charge and within a reasonable time.
• Services must be conducted with due care and skill, as well as within ‘a reasonable time’ (when no time is set).
• Goods/materials supplied must reflect those advertised or presented. Suppliers guarantee that when a consumer buys goods based on their model or sample, the goods will match the sample or demonstration model and any description provided.
• Suppliers/contractors and manufacturers automatically provide guarantees about certain goods they sell, hire or lease, and services they provide to consumers. These rights exist regardless of any warranty provided by the supplier/contractor or manufacturer.
• The goods or services provided must be fit for purpose.
• It is unlawful for a business to make false or misleading representations about goods or services when supplying, offering to supply, or promoting those goods or services. Similarly a business must not act unconscionably when supplying goods or services to a consumer.
• Businesses must not make false or misleading representations about the country of origin of goods.
• Consumer guarantees cannot be negated by stating so in a contract.
• Acceptable quality is established and a consumer is not entitled to a remedy if they had an opportunity to examine the goods before purchase and did not find defects that they should have noticed. To this end you should seek written acceptance.
• The guarantee of acceptable quality will not apply, nor is a remedy entitled if: – the consumer uses the goods abnormally – the consumer causes the quality of the goods to become unacceptable – the consumer fails to take reasonable steps to avoid the quality becoming unacceptable – a supplier/contractor does not meet one of the consumer guarantees due to something someone else said or did (excluding the supplier’s/contractors agents or employees), or something beyond human control that happened after the goods or services were supplied. This exception does not apply when a supplier has not met the guarantee of due care and skill.
• A consumer is not entitled to a refund for changing their mind.
• A consumer cannot reject goods/materials when they have been discarded, or they are attached to other property and cannot be removed without damage, or too much time has passed.
• Length of warranty is not exclusive to the manufacturer’s warranty.
• Goods purchased at auction do not come with some of the consumer guarantees. No refund signs – signs that say ‘no refunds’, ‘no refunds on sale items’ and ‘Exchange or credit note only for return of sale items’ are considered unlawful. Signs stating ‘No refunds will be given if you have simply changed your mind’ are acceptable.
• Goods and services provided prior to January 1st 2011 are covered by the previous State and Territory legislations and the previous Trade Practices Act.
• Any warranty or guarantee provided by a business must comply with the ACL.
• States and/or Territories under their Home Building Contracts (or similar), may have additional requirements. For example, in Qld, NSW and WA, required documentation must accompany a contract. Essential points considered the rights of the consumer include:
• A cooling of period of ten (10) days is required for an unsolicited contract (e.g. work derived from telemarketing or door knocking). Most work in the flooring industry is solicited, however, consumers may have up to a ten (10) day cooling off period once provided with a contract by virtue of State or Territory conditions, relating to Home Building Contracts or similar – check with your State/Territory authority.
• Entitlement to replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage.
• Entitlement to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
• The consumer can choose to claim a remedy from the contractor, supplier or manufacturer – any or all (dependent on the guarantee that has not been met).
• When there is a major failure, the consumer can reject the goods or services and choose a refund or a replacement, or ask for compensation for any drop in value of the goods or service.
• When the supplier/contractor refuses to repair, the customer can obtain services from another supplier/ contractor and seek reasonable costs from the first supplier/contractor, or reject the goods, or seek a refund or replacement.
• A service is cancelled when the consumer notifies the supplier that they want to cancel it.

Some considerations

The ACL is silent on interpreting times and levels on various aspects, these issues will be addressed by the ACCC or State agencies responsible for implementation. If you are uncertain on any aspect of the ACL, please contact your State or Territory agency for further detail: