Consumer’s Legal Rights under the Australian Consumer Law (ACL)
According to Paterson, the Australian Consumer Law (ACL) is a cooperative reform of the Australian Government and works through the Legislative and Governance Forum on Consumer Affairs (CAF) (2011, pp. 252- 255). ACL laws are regulated and reinforced by the Australian Competition and Consumer Commission (ACCC) and the State and Territory consumer protection agencies (Ivec & Braithwaite, 2015). These joint companies sometimes work together with the Australian Securities and Investment Commissions (ASIC) when they are handling relevant matters. Australian consumer laws are the national legislation for fair trading and consumer protection (Whish & Bailey, 2015). The ACL has a set of guidelines, also known as consumer guarantees that protect consumers’ legal rights.
Rares (2014, pp7-9) indicates that consumer guarantees are a set of principles under the ACL, which relate to any goods or service that customers’ purchase. The rules spell out the conditions and circumstances under which a corporate business has to provide a consumer with a solution. The guarantees apply naturally regardless of any willing or extended security offered by a seller or a manufacturer of any goods or service provider or if the stated warranty has expired. Bozzi (2015, pp402-405)further explores that according to the Australian Consumer Law, a consumer is defined as any person who purchases any products or services; worth less than $40,000, worth more than $40,000 but they are intended for domestic, household, or personal consumption or the goods are a vehicle or trailer used for transport on public roads. Any business that provides consumer products or offers services to customers in Australia has to comply with consumer guarantees as well as manufacturers and importers.
By the Australian Consumer Law (ACL), Rocky Tours, an online agency that offers travel services violated the rights of Brent and led to the death of his wife, Kate. Anderson, Meethan, Mile, R. S and Miles, S (2005) and Henry (2010, pp. 670-687) explore some of the consumer legal rights that the travel agency violated which include:
- False representations
Section 29(1)(m) of the Australian Consumer Law has fourteen distinct provisions that help prevent different types of false representations. In the case of Brent‘s lawsuit, Rock Tours should be held liable for false representation relating to rights and solutions under the ACL. Melody, one of Rocky Tours staff reassured Brent that the river cruise down a Canada River was suitable for him and his wife, Kate who could not swim. The itinerary sent to Brent by Rocky Tours did not include a getting into rafts and travelling down the rapids neither was this package advised by Melody before booking the tour. Also, the tour guides hired by Rocky Tours did not find a solution to the fact that Kate could not swim and she ended up drowning.
- Compensation for damages and loss
As a business entity, Brent can seek compensation for the loss of his wife, Kate. The death of Kate is considered as the injury suffered as a result of a problem with the service provider. However, in their terms and conditions Rocky Tours claim that they are not responsible for any death, personal loss or injury sustained at any point during the tour and the ACL do not apply to any tours purchased. Apparently, Rocky Tours knew that Kate could not swim and they could have avoided the river cruise part of the tour or given Brent and Kate a better solution to this matter. As a result, ACL allows Brent to recover the losses arising from the failure of Rocky Tours to meet consumer guarantee protocols. Moreover, Brent purchased a tour package of $12000 which under the Australian Consumer Law should be compensated because Rocky Tours had faulty services.
- Consumer guarantees
The Australian Consumer Law (ACL) gives statutory guidelines for the supply of goods and services to the customers. The consumer safeguards in the ACL include; title, correspondence with description, acceptable quality and fitness for purpose which is meant to the trader and the consumer. As a service provide, Rocky tours violates S 59(1) of the ACL by not meeting all the customer guarantee protocols as they do not compensate their clients for any defects encountered during their tours. Also, the company did not satisfy consumer guarantee since it did not clearly explain to the customers all their terms and conditions. Besides, the company offered a particular package that Brent and Kate did not request.
- Guarantee as to service
According to Section 60 of the ACL, services have to be provided with due care and skills. Also, Section 61 (1) clearly states that all services offered to a consumer should fit their meant purpose. According to Section 61(2), the service provider should be able to provide the service and the resulting end product that the consumer needs to use to achieve their goals before any negotiations between the two. Rocky Tours violated this user right since they did not offer any skilled service in the river cruise part and ended up causing the death of Kate. Similarly, the company did not meet their guarantee to provide the kind of services that Brent requested for.
- Remedies for non-compliance with consumer guarantees
The Australian Consumer Law gives a difference between major and non-major failures to comply with consumer guarantees. Section 259(1) – (2) of the ACL states the non-major failure clause which gives the supplier options. The options include finding solutions to the problem within a reasonable time span or if the provider fails to remedy the problem, the consumer has the power to refuse the goods or services or recover all the reasonable costs of finding a solution for the failure. Rocky Tours knew that the tour package included a cruise down a river and Kate couldn’t swim and did not find a solution for it or inform Brent so that he could go for other possible options or decide if he could take the package. Also, the company should compensate Brent for the loss of his wife as it was a result of a failure of the kind of services that Rocky Tours offered.
- Cancelling a service
According to the Australian Consumer Law, any customer has the right to abort a service. A consumer can cancel a service when they have a major issue with the service that can’t be fixed within a reasonable time span. Consumer’s right to cancelling a service applies to services provided with an unacceptable quality of care and skill, not meant for the purpose the client asked for or not delivered within the agreed time. In the event that Rocky Tours did not give Brent and Kate the details of the kinds of services they were offering so they could decide whether to cancel the service or not, Brent should be refunded in a similar form as his original payment for the tour package. Also, the ACL allows Brent to ask for compensation for the death of Kate which was caused by a problem Rocky Tours could not fix.
A guarantee is a promise from the supplier or the service provider that becomes a consumer’s right once they buy the goods or service. According to the ACL, consumer guarantees apply to any products or services you purchase regardless of any warranties suppliers sell or give you. However, warranties are different from consumer guarantees. Businesses make promises to offering excellent quality products and services. However, Rocky Tours did not give Brent such security that they offer quality services and therefore he did not have a clear choice on whether to pick the company for their tour or not. If Rocky Tours had given Brent such a warranty, there would be a consumer guarantee under the ACL protocols that the service provider would comply with the warranty. Failure to comply with these consumer rights, Brent would have a legal right as a consumer to sue Rocky Tours.
- Enforcement and remedies for unfair practices
Section 236 of the Australian Consumer Law has a guideline to the enforcements and solutions to unfair practices. The law makes it inappropriate and illegal for a company to convince a customer to purchase goods or services by promising benefits. Rocky Tours should be held accountable for unconscionable conduct which is prohibited by the law. The company knowingly exploited Brent’s disadvantage of not knowing what exactly the tour package consisted. Melody used an unfair tactic and reassured Brent that the tour was a perfect for him and Kate. Also, Rocky Tours should not have accepted Brent’s payment if they knew they were not going to offer the services that Kate and he intended to purchase.
- Unfair contracts
Unfair terms cause significant imbalances in the consumers’ rights. The ACL has guidelines that prohibit unfair terms in all standard form customer contracts. The terms and conditions on Rocky Tours’ website indicated that they are not liable for any deaths, personal injuries or losses incurred at any time while on the tours and that the Australian Consumer Laws do not apply to any tours purchases though Rocky Tours. Despite the fact that Brent accepted all these terms and conditions without reading through them, the court must take into account the transparency of these circumstances in determining the unfairness. According to the ACL, transparency of procedures means that they should be easy to understand and well presented.
Paterson, J.M., The New Consumer Guarantee Law and the Reasons for Replacing the Regime of Statutory Implied Terms in Consumer Transactions’(2011). Melbourne University Law Review, 35, p.252-255.
Rares, S., 2014. Striking the modern balance between freedom of contract and consumer rights. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, 28(3), p.7-9.
Anderson, A., Meethan, K., Miles, R.S. and Miles, S. eds., 2005. The changing consumer: Markets and meanings. Routledge.
Henry, P.C., 2010. How mainstream consumers think about consumer rights and responsibilities. Journal of Consumer Research, 37(4), pp.670-687.
Ivec, M. and Braithwaite, V., 2015. Applications of responsive regulatory theory in Australia and overseas: Update.
Bozzi, C., 2015. CONSUMER GUARANTEES. Australian Commercial Law, p.402-405.
Whish, R. and Bailey, D., 2015. Competition law. Oxford University Press, USA.