This change to consumer laws is, however, very significant and it will take some time to get used to the new naming and numbering system.  For a good summary of the changes see this news item from Mallesons.  Significantly, the Senate amended the definition of consumer originally proposed, so that it will continue to define as consumers those customers who purchase items valued at $40,000 or less (subject to some exceptions).

More to follow …

The Government has introduced phase II of their two-phase plan to implement a new Australian Consumer Law which will bulk up the Act even further (the first Bill, which has passed through both Houses, ran to 84 pages – this was bad enough, but the current Bill runs to more than 388 pages (although admittedly part of this involves repealing most of the content of the first bill and replacing it with the same content in a slightly different spot – it’s all very logical)).  This adds to the additional 90 pages of statutory text generated by the recent passage of the criminal cartel act.

It cannot go on … the annotated acts are bursting at their seems. So what can be done to stem the flow of dense legislative supplements to what was once a neat little Act (the original 1974 Act comprised a little over 38,000 words of text; the current consolidation contains more than 305,000 words)? The answer is probably nothing. It is unlikely there will be any substantive legislative repeals or genuine attempts at simplification, although this would be desirable, and the problem is likely to get worse with current inquiries into creeping acquisitions and the meaning of ‘understanding’ in part IV of the Act likely to generate more legislative content in the near future. Another answer is needed.

The new Bill will change the name of the TPA to the ‘Competition and Consumer Act 2010’ to  ‘better reflect its purposes of promoting competition and empowering consumers’. Although, as a bit of a traditionalist, it hurts me to part with the term ‘Trade Practices Act’, of which I am now very fond (parting with s 52 of the TPA which will now become s 18 of Schedule 2 of the CCA hurts me more), the proposed name change might present an opportunity. While in the process of changing the Act’s name why not split it up? Let’s divide it into a consumer act (‘Consumer Act 2010’ perhaps) and a competition act (‘Competition Act 2010’?). These are two separate fields of law and policy (even if there may be some overlapping objectives) – they need not be married together in this legislative jungle.  The change would be  consistent with the approach adopted in many other jurisdictions.

While we’re in the process of splitting up the Act let’s also re-number it. A multitude of additions and alterations over the years has led to an absurd numbering system. The last part of the Act is Part XIII. You might deduce from this that the Act has 13 parts. You would be wrong; it in fact has 28 parts and a schedule (this will change with the passage of the new Act which repeals Parts IVA, V, VA and VC, making the Act even less comprehensible). Parts include IIIAA, XIAA, XIB etc. All very logical! The section numbering is even better. The new cartel laws begin with section 44ZZRA and end with section 44ZZRV. Why? Because the government wanted to slip them in between sections 44ZZR and 45 (Again, very logical and easy to follow for business trying to adhere to the law – and this is not the worst of it. This bizarre numbering is scattered throughout. We have s 51ACAA (I kid you not, although this will soon be repealed), s 44AAGA, s 75AZQ, s 87CAA, s 95AZEA (seriously!), s 10.01 (yes, in Part X the numbering system completely changes – we go from s 119 to s 10.01 – 10.91 then we jump to s 150A at the start of Part XIA – there are no sections 120-150 in the Act) and my personal favorite, s 151BUAAA. The introduction of the new consumer legislation will move all the consumer protection legislation from Parts IVA, V, VA and VC into a new Schedule 2 of the Act.  So our beloved s 52 (dealing with misleading and deceptive conduct) will now be cited as s 18 of Schedule 2 (you can’t just call it section 18 because there is another s 18 in the main body of the Act).  It is simply absurd. So, with the re-naming of the Act we can also begin a re-numbering system. Nobody really loves s 151BUAAA or will be sorry to see it go. Lets put what we want in the Act (or Acts), then start the re-numbering the parts and sections from scratch. No doubt future amendments will mess this up a little, but the Act cannot continue on it’s current numbering trajectory. There are, of course, more serious issues than poor structure and numbering of the Act. It is highly complex and, as a result, inaccessible for many of those parties to whom it is directed (consumers and business). But a simplified structure (one that clearly separates consumer and competition legislation and policy) and a logical numbering system would, at the very least, be a good start.

This is an updated version of a blog I posted last year.

• Luke Nottage, Consumer law reform in Australia: Contemporary and Comparative Constructive Criticism
• Stephen Corones, Consumer Guarantees in Australia: Putting an End to the Blame Game
• Anthony Gray, Unfair Contracts and the Consumer Law Bill
• Luke Nottage, The New Australian Consumer Law: What About Consumer ADR?
• Lynden Griggs, Consumer Protection and Stored Value Facilities
• Nicky Jones, Gift Vouchers and Expiry Dates: When the Gift Stops Giving
• Jenny Buchan, Consumer Protection for Franchisees of Failed Franchisors: Is there a Need for Statutory Intervention
• Sharon Christensen, Bill Duncan and Amanda Stickley, Behavioural Biases and Information Disclosure Laws Relating to Residential Property Sales: Narrowing the Gap between Existing Laws and Calls for Future Reforms

All can be downloaded in PDF format – well worth a look!

Julie

Submissions may be made to the Senate Economics Committee until  16 April 2010. The committee’s report is due by 21 May 2010.

The Trade Practices Amendment (Australian Consumer Law) Bill 2009 passed on 17 March 2010 and is awaiting Royal Assent.  Amongst other things, that Bill introduces a new national unfair terms regime.

Nestled in the monster bill, Schedule 5, s 2 includes the name change: “Omit “Trade Practices Act 1974 “, substitute “Competition and Consumer Act 2010“”

More to follow.  In the meantime for discussion of the Australian Consumer Law Bills see MallesonsStephenJaques: A brave new world – Senate endorses unfair terms legislation and ‘What? No more ‘TPA’?‘

‘The panel will provide advice to the Government on some outstanding issues raised in recent parliamentary inquiries into the Franchising Code of Conduct and the provisions of the Trade Practices Act 1974 (TPA) that prohibit unconscionable conduct’ and follows the release of the Government response to those inquiries on 5 November 2009.  The full terms of reference are available online and include ‘considering the merits and the feasibility of introducing into the Franchising Code a list of examples of behaviours that are inappropriate in franchising relationships’.

An Issues Paper, prepared by Treasury, was also released by Dr Emerson, and interested parties are invited to make submissions by 18 December.  The Panel will report in January 2010.

Unconscionable conduct and franchising has now been the subject of multiple inquiries … lets hope this one proves more useful and conclusive than those that have gone before …

The Government will establish an expert panel [which will] consider whether a list of examples of unconscionable conduct or a statement of principles of what constitutes unconscionable conduct should be incorporated into the Trade Practices Act.

The panel will report by the end of January 2010 and will involve consultation with interested parties.

Various reforms to the franchising code are also proposed.  See discussion of Franchising Code proposals in The Age.

These reforms are in response  to the Senate Economics Committee’s Report on the Statutory Definition of Unconscionable Conduct, released in February, and the Ripoll Report on the Franchising Code of Conduct, released in October.  A more detailed version of the Government responses was tabled yeserday, but does not year appear to be available online.