Australian Consumer Law Commentary and Materials [5th Ed.]

"The Australian Consumer Law came into operation on 1 January 2011 as a single national law. It replaced 17 different pieces of Commonwealth, State and Territory legislation relating to consumer protection. Its introduction meant that for the first time, consumers throughout Australia had the same rights and remedies and correspondingly, businesses had the same obligations and responsibilities towards consumers without the barrier of confusing and expensive local variations in the law. Australian Consumer Law: Commentary and Materials contains up-to-date material on the Australian Consumer Law, and in particular the fifth edition incorporates: a revised treatment of unconscionability, taking account of the changes to Part 2-2 of the ACL that became effective in 2012; other State and Federal provisions relating to unfair terms and cases such as Kakavas v Crown Melbourne, ACCC v Lux Distributors, Director of Consumer Affairs v Scully and PT Ltd v Spuds Surf; a comprehensive treatment of the impact of Google v ACCC, Forrest v ASIC and ACCC v TPG – the trilogy of decisions that provide the most recent insights into the High Court’s thinking on aspects of the prohibitions of misleading conduct in the ACL and the Corporations Act 2001; numerous decisions of note; and the possible impact of the Harper Review."--publisher website

Understanding consumer loyalty to technology-based self-services with credence qualities

Purpose This paper aims to use the Model of Goal-Directed Behavior (MGB) to examine the factors affecting consumers’ continued use of emerging technology-based self-services (TBSSs) with credence qualities. Professional services, which traditionally require specialized knowledge and high levels of interpersonal interaction to produce owing to their credence qualities, are increasingly delivered via self-service technologies. Health services delivered via mobile devices, for example, facilitate self-care without direct involvement from health professionals. Design/methodology/approach A mental health service delivered via the Internet and mobile phone, myCompass, was selected as the research context. Twenty interviews were conducted with users of myCompass and the data were thematically analyzed. Findings The findings of the study showcase the unique determinants of consumers’ continued use of TBSSs with credence qualities relative to the more routine services which have been the focus of extant research. The findings further provide support for the utility of the MGB in explaining service continuance, although the importance of distinguishing between extrinsic and intrinsic motivational components of behavioral desire and capturing the impact of social influence beyond subjective norms is also highlighted. Originality/value This study contributes to recent research examining differences in consumer responses across TBSSs and behavioral loyalty to these services. It also provides empirical evidence for broadening and deepening the MGB within this behavioral domain.

Towards development of a rapid and effective non-destructive testing strategy to identify brominated flame retardants in the plastics of consumer products

Polybrominated diphenyl ethers (PBDEs) are a class of brominated flame retardants (BFRs) once extensively used in the plastics of a wide range of consumer products. The listing of certain congeners that are constituents of commercial PBDE mixtures (including c-octaBDE) in the Stockholm Convention and tightening regulation of many other BFRs in recent years have created the need for a rapid and effective method of identifying BFR-containing plastics. A three-tiered testing strategy comparing results from non-destructive testing (X-ray fluorescence (XRF)) (n = 1714), a surface wipe test (n = 137) and destructive chemical analysis (n = 48) was undertaken to systematically identify BFRs in a wide range of consumer products. XRF rapidly identified bromine in 92% of products later confirmed to contain BFRs. Surface wipes of products identified tetrabromobisphenol A (TBBPA), c-octaBDE congeners and BDE-209 with relatively high accuracy (> 75%) when confirmed by destructive chemical analysis. A relationship between the amounts of BFRs detected in surface wipes and subsequent destructive testing shows promise in predicting not only the types of BFRs present but also estimating the concentrations present. Information about the types of products that may contain persistent BFRs will assist regulators in implementing policies to further reduce the occurrence of these chemicals in consumer products.

Empowering the consumer through Accountable-eHealth (AeH) systems

Allowing consumers to designate preferred healthcare professionals; Accountable-eHealth systems create a transparent and accountable eHealth environment for better healthcare delivery.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Using the evolution of consumer products to inform design

The development of a new consumer product and its release to market is typically an expensive and risky process. It is estimated that up to 80% of all new products fail in the marketplace (Savoia, 2014). The consequences of failure can be ruinous for a manufacturer both financially and in terms of brand reputation. So even small improvements in success prediction have the potential to save money, effort and brand reputation. This paper proposes an approach where the history and evolution of a product is mapped and analyzed. The results of the analysis can then be used to inform design decisions. This paper will also demonstrate the similarities between biological evolution and the evolution of consumer products. Using the existing structure and terminology of biological evolution allows us to focus on the aspects of innovations that have led to success and those that have led to failure. This paper uses the case study of the wristwatch and its development over 100 years. The analysis of this leads to recommendations for contemporary “smartwatches.”

The potential for consumer segmentation in the Finnish housing market

This article examines whether cluster analysis can be used to identify groups of Finnish residents with similar housing preferences. Because homebuilders in Finland have been providing relatively homogeneous products to an increasingly diverse population, current housing may not represent the occupiers' preferences so a segmentation approach relying on socioeconomic characteristics and expressed preferences may not be sufficient. We use data collected via questionnaire in a principal component analysis followed by a hierarchical cluster analysis to determine whether different combinations of housing attributes are important to groups of residents. We can identify four clusters of housing residents based on important characteristics when looking for a house. The clusters describe Finnish people in different phases of the life cycle and with different preferences based on their recreational activities and financial expenditures. Mass customization of housing could be used to better appeal to these different clusters of consumers who share similar preferences, increasing consumer satisfaction and improving profitability.

Where do consumers draw the line? Factors informing perceptions and justifications of deviant consumer behaviour

Deviant consumer behaviour in the marketplace is an ongoing problem causing harm to the organisation, employees, and other consumers. To address this problem, this study explores consumer perceptions of right and wrong using the novel concept of a deviance threshold – the mental line in the sand dictating right and wrong. Using consumer-based interviews with a card-sort activity, findings supported and extended dimensions proposed to explain why some behaviours are perceived as more serious or unethical than others. Moreover, why specific neutralisation techniques are used and how they affect categorisations of behaviours within an individual’s deviance threshold is explained. This study offers alternative strategies tailored to challenging consumer justifications to curb deviance. Implications support abandoning the universal approach to deterrence.

Impact of online privacy concerns and brand reputation on consumer willingness to provide personal information

The aim of this research was to identify the role of brand reputation in encouraging consumer willingness to provide personal data online, for the benefits of personalisation. This study extends on Malhotra, Kim and Agarwal’s (2004) Internet Users Information Privacy Concerns Model, and uses the theoretical underpinning of Social Contract Theory to assess how brand reputation moderates the relationship between trusting beliefs and perceived value (Privacy Calculus framework) with willingness to give personal information. The research is highly relevant as most privacy research undertaken to date focuses on consumer related concerns. Very little research exists examining the role of brand reputation and online privacy. Practical implications of this research include gaining knowledge as to how to minimise online privacy concerns; improve brand reputation; and provide insight on how to reduce consumer resistance to the collection of personal information and encourage consumer opt-in.

‘Lemon Laws’: an inquiry into consumer protections and remedies for buyers of new motor vehicles

1. Under the Terms of Reference for the Committee’s Inquiry, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that re-occur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. Consumers are currently protected in relation to lemon purchases by the Australian Consumer Law (ACL) located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA). The ACL applies as a law of Queensland pursuant to the Fair Trading Act 1989 (Qld). The voluntary recall and consumer guarantees law took effect on 1 January 2011. 2. In 2006, the Government of Victoria made a commitment to introduce a lemon law into the provisions of the then Fair Trading Act 1999 (Vic). The public consultation process on the proposal to introduce a lemon law for motor vehicle purchases in Victoria was conducted by Ms Janice Munt MP, with the assistance of Consumer Affairs Victoria (CAV). CAV released an Issues Paper to canvas with industry and the community options for the development and introduction of a motor vehicle lemon law.(Consumer Affairs Victoria, Introducing Victorian motor vehicle lemon laws, Issues Paper, (September, 2007). 3. A CAV report prepared by Janice Munt MP was released in July, 2008 (Consumer Affairs Victoria, Motor Cars: A report on the motor vehicle lemon law consultations (July 2008) (Victorian Lemon Law Report). However, the Victorian proposal was overtaken by events leading to the adoption of a uniform consumer protection law in all Australian jurisdictions, the ACL. 4. The structure of this submission is to consider first the three different bases upon which consumers can obtain relief for economic loss arising from defects in motor vehicles. The second part of the submission considers the difficulties encountered by consumers in litigating motor vehicle disputes in the courts and tribunals. The third part of the submission examines the approach taken in other jurisdictions to resolving motor vehicle disputes. The final part of the submission considers a number of possible reforms that could be made to the existing law and its enforcement to reduce consumer detriment arising from the purchase of ‘lemon’ motor vehicles. 5. There are three principal bases upon which a consumer can obtain redress for defects in new motor vehicles under the ACL. The first is where the manufacturer admits liability and initiates the voluntary recall procedure provided for in s 128 of the ACL. Under this basis the manufacturer generally repairs or replaces the part subject to the recall free of charge. The second basis is where the manufacturer or dealer denies liability and the consumer is initiates proceedings in the court or tribunal seeking a statutory remedy under the ACL, the nature of which will depend on whether the failure to comply with the consumer guarantee was major or not. The third basis upon which a consumer can obtain redress is pursuant to public enforcement by the ACCC. Each basis will be considered in this part. What all three bases have in common is the need to conduct an investigation to identify the nature of the defect and how it arose.

Sorry Joe, consumer spending will disappoint Santa this Christmas

Treasurer Joe Hockey called on shoppers this week to “not let Santa down” and asked them to spend up big at the stores this Christmas. Unfortunately, the latest retail and consumer confidence data indicate his calls are falling on deaf ears. Westpac’s Consumer Confidence Index shows pessimists outnumber optimists. This has been the case for the last nine months. The index was up 1.9% in November, but still well below its level a year ago.

Exploring changing culture and building capacity in research with consumers, carers and consumer companions

Background Australian policy mandates consumer and carer participation in mental health services at all levels including research. Inspired by a UK model - Service Users Group Advising on Research [SUGAR] - we conducted a scoping project in 2013 with a view to create a consumer and carer led research process that moves beyond stigma and tokenism, that values the unique knowledge of lived experience and leads to people being treated better when accessing services. This poster presents the initial findings. Aims The project’s purpose was to explore with consumers, consumer companions and carers at the Metro North Mental Health-RBWH their interest in and views about research partnerships with academic and clinical colleagues. Methods This poster overviews the initial findings from three audio-recorded focus groups conducted with a total of 14 consumers, carers and consumer companions at the Brisbane site. Analysis Our work was guided by framework analysis (Gale et al. 2013). It defines 5 steps for analysing narrative data: familiarising; development of categories; indexing; charting and interpretation. Eight main ideas were initially developed and were divided between the authors to further index. This process identified 37 related analytic ideas. The authors integrated these by combining, removing and redefining them by consensus though a mapping process. The final step is the return of the analysis to the participants for feedback and input into the interpretation of the focus group discussions. Results 1. Value & Respect: Feeling Valued & Respected, Tokenism, Stigma, Governance, Valuing prior knowledge / background 2. Pathways to Knowledge and Involvement in Research: ‘Where to begin’, Support, Unity & partnership, Communication, Co-ordination, Flexibility due to fluctuating capacity 3. Personal Context: Barriers regarding Commitments & the nature of mental illness, Wellbeing needs, Prior experience of research, Motivators, Attributes 4. What is research? Developing Knowledge, What to do research on, how and why? Conclusion and Discussion Initial analysis suggests that participants saw potential for ‘amazing things’ in mental health research such as reflecting their priorities and moving beyond stigma and tokenism. The main needs identified were education, mentoring, funding support and research processes that fitted consumers’ and carers’limitations and fluctuating capacities. They identified maintaining motivation and interest as an issue since research processes are often extended by ethics and funding applications. Participants felt that consumer and carer led research would value the unique knowledge that the lived experience of consumers and carers brings and lead to people being treated better when accessing services.

Can moral potency and psychological risk close the gap between ethical beliefs and unacceptable consumer behavior?

Depending on how they perceive risk, consumers may not always act according to their ethical beliefs, exposing a gap between beliefs and behavior. We investigate the effect of moral potency on perceived psychological risk of committing an unacceptable behavior. The results suggest that perceived risk is triggered by moral ownership.

Questionable antibiotic practices: Obtaining reliable estimates of consumer behaviours

Background: Significant recent attention has focussed on the role of antibiotic prescribing and usage with the aim of combating antibiotic resistance, a growing worldwide health concern. A significant gap in this literature concerns the consumption patterns and beliefs of consumers about antibiotics and their effects. We seek to remedy this gap by exploring a range of questionable antibiotic practices and obtaining reliable estimates of their prevalence as well as their normative status. Methods: We conducted an online survey of over 100 consumers. We used a new incentive compatible technique, the Bayesian Truth Serum (BTS), to elicit more truthful responding than standard self-report measures. We asked participants to indicate whether they engaged in a number of practices including whether they had: taken antibiotics when they are out of date and stored antibiotics at home for later use. We then sought estimates of the percentage of other patients (like them) who had engaged in each behaviour, as well as asking them among those patients who had, the percentage that would admit to having done so. We also asked about social acceptability and responsibility of the practices. Results: These results will show for each type of questionable practice how prevalent it is and whether consumers view it as both socially acceptable and socially responsible. We will gain the relative prevalence of each of these practices. Conclusion: These findings are of paramount importance in gaining a better understanding of consumers’ antibiotic consumption patterns. These will be vital for better targeting educational campaigns to lower inappropriate antibiotic consumption.

Google, online search and consumer confusion in Australia

The legality of the operation of Google’s search engine, and its liability as an Internet intermediary, has been tested in various jurisdictions on various grounds. In Australia, there was an ultimately unsuccessful case against Google under the Australian Consumer Law relating to how it presents results from its search engine. Despite this failed claim, several complex issues were not adequately addressed in the case including whether Google sufficiently distinguishes between the different parts of its search results page, so as not to mislead or deceive consumers. This article seeks to address this question of consumer confusion by drawing on empirical survey evidence of Australian consumers’ understanding of Google’s search results layout. This evidence, the first of its kind in Australia, indicates some level of consumer confusion. The implications for future legal proceedings in against Google in Australia and in other jurisdictions are discussed.