'Attaching' warning statements by facsimile consumer protection prevails!

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) mandates that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) have a warning statement ‘attached’ as the first or top sheet. Alternative judicial views have emerged concerning the possibility of attaching a warning statement to a contract sent by facsimile. In recognition of the consumer protection nature of the legislation, in MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 Muir J favoured a restrictive view of the word ‘attached’ requiring physical joinder of the warning statement to the relevant contract. In contrast, in MNM Developments Pty Ltd v Gerrard [2005] QDC 10 Newton DCJ opined that the requirements of the PAMDA could be met where the warning statement preceded the contract of sale in a facsimile transmission sent in one continuous stream. Newton DCJ considered that this broader approach promoted commercial convenience. In an appeal from the decision of Newton DCJ, in MNM Developments Pty Ltd v Gerrard [2005] QCA 230 a majority of the Queensland Court of Appeal has held that the restrictive view propounded by Muir J is correct. Notwithstanding possible commercial inconvenience, it is not possible for a warning statement to be attached to a contract sent by facsimile.

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

The Australian domain name registration system : a more efficient system for the promotion of liberalisation, consumer protection and growth

This thesis is about the Australian domain name system and, in particular, the principles governing the registration of domain names in the '.au' country code domain space. It examines the different types of registration systems adopted in country code domain spaces and categorises them according to the extent to which they impose restrictions on registration, ranging from restrictive to unrestrictive. A comparative analysis is made of the restrictive registration system in Australia and the United Kingdom‘s unrestrictive system.

Revisiting the Australian code of banking practice: Is self-regulation still relevant for improving consumer protection standards?

The Code of Banking Practice is one of the oldest examples of consumer protection provided through self-regulation in the Australian financial services sector. However, since the Banking Code was first released in 1993, the volume of consumer protection legislation applying to banks has increased exponentially and parts of the Banking Code that once provided new consumer rights have now been largely superseded by legislation. In light of the increasingly complex set of laws and regulations that govern the relationship between banks and their consumer and small business customers it could be argued that the Banking Code has a limited future role. However, an analysis of the Banking Code shows that it adds to the consumer protection standards provided by legislation and can continue to facilitate improvements in the standards of subscribing banks and of other institutions in the financial services sector. Self-regulation and industry codes should continue to be part of the regulatory mix. Any regulatory changes that flow from the recent Financial System Inquiry should also facilitate and support the self-regulation role, but the government should also consider further changes to encourage improvements in industry codes and ensure that the implicit regulatory benefits that are provided, in part, because of the existence of industry codes, are made explicit and made available only to code subscribers.

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.

What's 'Novel' About It? Substantial Equivalence, Precaution and Consumer Protection 1997-2004

Salmon, Naomi, 'What's 'Novel' About It? Substantial Equivalence, Precaution and Consumer Protection 1997-2004', Environmental Law Review, (2005), 7(2) pp.138-149 RAE2008

The placebo effect: international patent law and the protection of traditional plant medicine

Une préoccupation essentielle traverse cette thèse: l'indifférence systémique de la Loi internationale sur la propriété intellectuelle a l'égard des savoirs traditionnels autochtones. De manière générale, un écart semble d'ailleurs croissant entre l'importance des accords internationaux sur les questions d'intérêt commercial et ceux de nature sociale. Les savoirs traditionnels autochtones sur les plantes médicinales sont particulièrement désavantagés dans ce système dichotomique puisqu'ils sont non seulement à l'origine d'énormes profits commerciaux mais se trouvent aussi au cœur de multiples croyances propres à ces sociétés. L'Accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce (ADPIC) de l'Organisation mondiale du commerce (OMC) a cristallisé le souci de la législation internationale à l'égard d'une protection efficace des intérêts commerciaux. Deux années auparavant, la Convention sur la diversité biologique (CDB) était signée, traduisant une préoccupation à l'égard du développement durable, et elle devenait le premier accord international à tenir compte des savoirs traditionnels autochtones. On considère souvent que ces deux accords permettent l'équilibre du développement commercial et durable, requis par l'économie internationale. Après plus ample examen, on a plutôt l'impression que l'idée d'une CDB défendant, avec succès et efficacité, la nécessité du développement durable et des savoirs traditionnels autochtones contre les pressions opposées de l'ADPIC et de l'OMC est, au mieux, simpliste. La thèse explore également la fonction de la Loi sur les brevets dans la création d’industries, notamment pharmaceutique, et la manière dont ces industries influencent la législation nationale et en particulier internationale. De même, elle traite du rôle que jouent les brevets dans l'affaiblissement et la dépossession des peuples autochtones dotés de savoirs traditionnels sur les plantes médicinales, conduisant à une situation ou ces savoirs sont marginalisés ainsi que leurs détenteurs. La thèse aborde les failles institutionnelles du système juridique international qui permet une telle situation et indique l'urgente nécessité d'examiner attentivement les inégalités économiques et sociales au Nord comme au Sud, et non seulement entre eux. Finalement, la thèse suggère que la législation internationale gagnerait à s'inspirer des diverses traditions juridiques présentes à travers le monde et, dans ce cas particulier, peut être les détenteurs des connaissances traditionnelles concernant les plantes médicinales seront mieux servi par le droit des obligations.

Regulations on E-Commerce Consumer Protection Rules in China and Europe Compared – Same Same but Different?

This article provides a comprehensive overview of the regulations on e-commerce protection rules in China and the European Union. It starts by giving a general overview of different approaches towards consumer protection in e-commerce. This article then scrutinizes the current legal system in China by mainly focusing on SAIC’s “Interim Measures for the Administration of Online Commodity Trading and Relevant Service Activities”. The subsequent chapter covers the supervision of consumer protection in e-commerce in China, which covers both the regulatory objects of online commodity trading and the applied regulatory mechanisms. While the regulatory objects include operating agents, operating objects, operating behavior, electronic contracts, intellectual property and consumer protection, the regulatory mechanisms for e-commerce in China combines market mechanism and industry self-discipline under the government’s administrative regulation. Further, this article examines the current European legal system in online commodity trading. It outlines the aim and the scope of EU legislation in the respective field. Subsequently, the paper describes the European approach towards the supervision of consumer protection in e-commerce. As there is no central EU agency for consumer protection in e-commerce transactions, the EU stipulates a framework for Member States’ institutions, thereby creating a European supervisory network of Member States’ institutions and empowers private consumer organisations to supervise the market on their behalf. Moreover, the EU encourages the industry to self- or co-regulate e-commerce by providing incentives. Consequently, this article concludes that consumer protection may be achieved by different means and different systems. However, even though at first glance the Chinese and the European system appear to differ substantially, a closer look reveals tendencies of convergence between the two systems.

EDUCATION, TRAINING AND AWARENESS OF LAWS AS DETERMINANTS OF COMPLIANCE WITH PLANT PROTECTION LAW: THE CASE OF PESTICIDE USE PRACTICES IN TANZANIA

Pesticide residues in food and environment pose serious health risks to human beings. Plant protection laws, among other things, regulate misuse of agricultural pesticides. Compliance with such laws consequently reduces risks of pesticide residues in food and the environment. Studies were conducted to assess the compliance with plant protection laws among tomato farmers in Mvomero District, Morogoro Region, Tanzania. Compliance was assessed by examining pesticide use practices that are regulated by the Tanzanian Plant Protection Act (PPA) of 1997. A total of 91 tomato farmers were interviewed using a structured questionnaire. Purposive sampling was used in selecting at least 30 respondent farmers from each of the three villages of Msufini, Mlali and Doma in Mvomero District, Morogoro Region. Simple Random Sampling was used to obtain respondents from the sampling frame. Individual and social factors were examined on how they could affect pesticide use practices regulated by the law. Descriptive statistics, mainly frequency, were used to analyze the data while associations between variables were determined using Chi-Square and logistic regression model. The results showed that respondents were generally aware of the existence of laws on agriculture, environment and consumer health, although none of them could name a specific Act. The results revealed further that 94.5% of the farmers read instructions on the pesticides label. However, only 21% used the correct doses of pesticides, 40.7% stored pesticides in special stores, 68.1% used protective gear, while 94.5% always read instructions on the label before using a pesticide product. Training influenced the application rate of pesticide (p < 0.001) while awareness of agricultural laws significantly influenced farmers’ tendency to read information on the labels (p < 0.001). The results showed further that education significantly influenced the use of protective gears by farmers (p = 0.042). Education also significantly affected the manner in which farmers stored pesticide-applying equipment (p = 0.024). Furthermore, farmers’ awareness of environmental laws significantly (p = 0.03) affected farmers’ disposal of empty pesticide containers. Results of this study suggest the need for express provisions on safe use and handling of pesticides and related offences in the Act, and that compliance should be achieved through education rather than coercion. Results also suggest establishment of pesticide disposal mechanisms and structures to reduce unsafe disposal of pesticide containers. It is recommended that farmers should be educated and trained on proper use of pesticides. Farmers’ awareness on laws affecting food, environment and agriculture should be improved.

Consumer protection in the banking sector : reviewing the Code of Banking Practice

This article explains the relevance of the Code and its place in the regulatory framework, discusses some of the key issues arising in the recent review (as identified by consumer advocates1), and explains the relationship between the Code and the Financial Ombudsman Service.

Environmental law and the economic impact on Australian firms

In response to international awareness of environmental issues and the inadequacies of common law actions, legislation has been enacted by Australian governments to facilitate environmental protection. The Environmental Protection Act 1994 (Qld) and accompanying Environmental Protection (Interim) Regulation 1995 (Qld) is one example of government response to mounting public pressure to legislate for the environment. Investigation into the operation of the legislation exposes the costs faced by Australian firms in its application. The legislation identifies a number of environmentally relevant activities and imposes licensing and reporting requirements on firms undertaking such activities. In view of these legislative requirements and the increasing public awareness of environmental issues over the last decade in Australia, it could be expected that firms undertaking environmentally sensitive activities will place greater importance on the management of environmental issues. If so, the greater prominence placed on environmental management may be reflected in disclosures made by the firm to its shareholders and other interested parties. This article investigates the type and extent of costs currently imposed by the body of environmental laws in Australia with the discussion primarily focusing upon costs imposed due to the operation of environmental legislation in Queensland. Further, the article reports empirical analysis of management response to environmental issues where firms are undertaking environmentally sensitive activities.