Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

The Australian Consumer Law

Reform of Australia’s inconsistent Commonwealth, State and Territory consumer laws is now a reality. The 1 January 2011 commencement of the Australian Consumer Law (ACL), within the Competition and Consumer Act 2010, is the culmination of a long process of consultation. Unifying and rationalising the plethora of laws, this new Act sees the disappearance of the “Trade Practices Act” and the amendment of a raft of State and Territory legislation; the new national regime informed by them operates in their stead. This is indisputably the most comprehensive change in the history of the Trade Practices Act 1974. This book aims to assist practitioners, academics and students understand the Australian Consumer Law regime and its impact. It summarises the history and constitutional basis of the ACL, explaining how the ACL will be implemented, amended and enforced. In addition it explores how the various general and specific protections interrelate, and the scope of their overlap, and considers the content of the ACL, and the principal changes from the provisions of the Trade Practices Act.

The Australian Consumer Law (2nd ed.)

The purpose of this book is to summarise and explain the substantive rights of consumers, and the obligations of businesses under the Australian Consumer Law (ACL). Since the first edition there have been two significant legislative developments at the Federal and State level which have been incorporated into this edition. The Competition and Consumer Legislation Amendment Act 2011 (Cth), which amends the provisions of the ACL relating to unconscionable conduct, took effect from 1 January 2012. In addition to this the Fair Trading Act 1999 (Vic) has been replaced by the Australian Consumer Law and Fair Trading Act 2012 (Vic), which applies the ACL as a law of the State of Victoria.

Australian consumer attitudes and decision making on renewable energy technology and its impact on the transformation of the energy sector

This paper critically examines research on consumer attitudes and behavior towards solar photovoltaic (PV) and renewable energy technology in Australia. The uptake of renewable energy technology by residential consumers in Australia in the past decade has transformed the electricity supply and demand paradigm. Thus, this paper reviews Australian research on consumer behavior, understanding and choices in order to identify gaps in knowledge. As the role of the consumer transforms there is a critical need to understand the ways consumers may respond to future energy policies to mitigate unforeseen negative social and economic consequence of programs designed to achieve positive environmental outcomes.

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

CSR communication and legitimacy : an institutional and rhetorical perspective

This study drew on the notions of institutional theory, legitimacy, and rhetoric, and explored propositions drawn from these concepts to consider the why and how of corporate social responsibility (CSR) communication. In doing so, this thesis found that there was often a disconnect between why the organisations were communicating about CSR activities in their reports and how the organisations were communicating about these activities.

Inward internationalization of consumer services : lessons from Australian firms

Purpose - The aim of this paper is to explore the inward internationalization process of consumer services. A review of the service internationalization literature is conducted and the resource-based view of the firm is used as a theoretical approach. Design/methodology - Case study methodology is used to explore the internationalization process of five different consumer service sectors: tourism, education, accommodation, transport and entertainment. The main data collection method was interviews conducted with top managers of 12 Australian consumer service firms from these sectors. Findings - Findings of this study show that inward internationalizing services confront most of their barriers, such as immigration policies, exchange rate fluctuations, and cultural differences, in the domestic market where the service is provided. The findings also suggest that superior intentional performance for consumer service firms combines firm-specific resources and capabilities, such as market orientation, service quality, cultural sensitivity, international communicational activities, partnerships and networks, with country-specific resources and capabilities, such as country-of-origin image and government support. Research limitations/implications - This is one of the few studies in the academic literature that directly addresses the issue of inward internationalization of consumer services. Limitations derive from the qualitative nature of this study. Practical implications - The process of inward internationalization applies to a broad range of service industries and can assist firms to develop more effective international marketing strategies. Originality/value - This study contributes to the international services literature by identifying the main barriers and drivers of international performance for inward internationalizing consumer service firms, which is a topic that has been neglected in the literature.

Australian Commercial Law

Australian Commercial Law offers a concise yet comprehensive introduction to commercial law in Australia. The textbook provides a thorough and detailed discussion of a variety of topics in commercial law such as agency, bailment, the sale of goods, the transfer of property and the Personal Property Securities Act. The book also offers a detailed overview of topics within the Australian Consumer Law that are now relevant to commercial practice such as unconscionable conduct, consumer guarantees, and misleading and deceptive conduct. Written in a clear and accessible style, each chapter features key points and further reading to enhance students' understanding. Significant cases are discussed in detail and include excerpts from judgments to illustrate points of law. Australian Commercial Law is an indispensable resource for students who are seeking a comprehensive understanding of commercial law.

Destination Positioning Slogans - Analysis of Themes used by New Zealand Regional Tourism Organisations

A significant gap in the tourism and travel literature exists in the area of tourism destination branding. Although brands have been used as sources of differentiation in consumer goods markets for over a century, academic research attention towards destination branding has only been reported since the late 1990s. Three important components of the brand construct are brand identity, brand position and brand image. While interest in applications of brand theory to practise in tourism is increasing, there is a paucity of published research in the literature to guide destination marketing organisations (DMOs). In particular there have been few reported analyses of destination brand positioning slogans. The focus of this paper is on destination brand position slogans, which represent the interface between brand identity and brand image. Part of a wider investigation of DMO slogans worldwide, and in keeping with the conference location, the paper focuses on analysis of slogans used by New Zealand RTOs. The slogans are examined in terms of the extent to which they have been limited to ephemeral indifference. In other words, have they stood the test of time and do they effectively differentiate through a meaningful proposition? Analysis of the slogans indicates very few could be characterised as memorably distinctive. This reflects the complexity involved in capturing the essence of a multi-attributed destination in a succinct and focused positioning slogan, in a way that is both meaningful to the target audience and effectively differentiates the destination from competitors offering the same benefits.

Consumer guarantees in Australia : putting an end to the blame game

The focus of this article is on the proposed consumer guarantees component of the Australian Consumer Law. The Productivity Commission (PC), in its review of Australia’s Consumer Policy Framework, noted that it had not ‘undertaken the detailed analysis necessary to reach a judgment on the adequacy or otherwise of the existing regulation in this area, or the merits of alternative models such as those adopted in countries such as New Zealand’. Accordingly, it recommended that: ‘The adequacy of existing legislation related to implied warranties and conditions should be examined as part of the development of the new national generic consumer law’.

Joint consumer submission to the review of the code of banking practice

This submission has been prepared on behalf of Australian consumer advocates by Nicola Howell, Faculty of Law, Queensland University of Technology (‘the researcher’), under a consultancy arrangement with the Australian Securities and Investments Commission (ASIC). The researcher has been engaged by ASIC to consult with consumer advocates across Australia in order to prepare a detailed consumer submission to the Review of the Code of Banking Practice and the Review Issues Paper.

The state of the art defence : defining the Australian experience in the context of pharmaceuticals

One of the defences within Part 3-5 of the Australian Consumer Law is the state of the art, or development risk defence. This defence, although significant, has often been neglected in Australian jurisprudential analysis and has triggered at most generic academic analysis. However, with the rise of pharmaceutical and medical device litigation in Australia, it could become a vital weapon for Australian manufacturers against product liability claims. This paper will firstly review the two ways this defence could operate. It will also discuss the three types of defects which the defence could apply to. This paper aims to determine exactly when and how this defence should apply in Australia, in the context of pharmaceutical product liability claims.

Putting the 'Personal' back into injury: An interpretation of Pt 3-5 of the ACL

There is an ongoing debate in relation to Part 3-5 of the ACL, particularly over its use in relation to other civil liability remedies. This article looks more closely at ss 138 and 139. It argues that, because of a possible design flaw in the statutory construction of s 138, it can be interpreted much more broadly than it has been to date. Also, the paper discusses the effect on an interpretation of s 139 ACL of both the High Court’s decision in Marks v GIO Australia Holdings Ltd, and a small but significant amendment to s 139 when the ACL was enacted. It argues that s 139 can now be interpreted broadly to include claims not just for loss of financial support or services but for all loss or damage or injury caused.

‘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.