There are a variety of laws at state, territory and federal levels which regulate consumer protection in Australia. Of these, the Competition and Consumer Act 2010 (Cth) (and the Australian Consumer Law which is Sch 2 to that Act,) contains the most comprehensive set of provisions governing the protection of consumers generally. It is these provisions which are discussed in this topic.

Other legislation also includes provisions which regulate consumer protection with respect to specific industries or products and services, or specific types of conduct. Examples of laws which regulate consumer protection with respect to specific products, services or industries, or specific types of conduct include:

• laws regulating the advertising and sale of financial products and services, being, principally, the Australian Securities and Investments Commission Act 2001 (Cth);

• insider trading;

• laws regulating the advertising and sale of tobacco products such as the Tobacco Advertising Prohibition Act 1992 (Cth); and

• laws regulating conduct such as the sending of electronic commercial messages, being the Spam Act 2003 (Cth).

In addition, there are many voluntary industry codes which contain provisions which regulate conduct involving consumers in particular industries. Examples include:

• the Telecommunications Consumer Protections Code, available at the Australian Communications and Media Authority website;

• the Australian Association of National Advertisers Code of Ethics, available at the AANA website;

• the Internet Industry Codes of Practice, available at the Internet Industry Association website;

• the Alcohol Beverages Advertising Code and Complaints Management System, available at the Alcohol Beverages Advertising Code website; and

• Medicines Australia Code of Conduct, available at the Medicines Australia website.

To determine whether obligations are owed to consumers or certain conduct towards consumers is prohibited or permitted, regard should be had, in the first instance, to the provisions of the Competition and Consumer Act 2010 (Cth) and, in particular, the Australian Consumer Law, and then to any legislation or codes covering the specific industry, products, services or conduct involved.

From 1 January 2011 the consumer protection provisions contained in what was the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) and the various state and territory Fair Trading Acts were consolidated into a single law which applies nationally and in each state and territory. That single national law is the Australian Consumer Law, or ACL as it is commonly called. The ACL contains the consumer protection provisions which were previously found in the Trade Practices Act, as well as a number of additional provisions.

A note of caution: it is important to be aware that the ACL contains a number of amendments to the previous Trade Practices Act provisions, of both minor and major significance, and a complete re-ordering of those provisions.

See The Australian Consumer Law.

The Australian Competition and Consumer Commission (ACCC) and the various state and territory Fair Trading departments or consumer agencies share the administration and enforcement of the ACL. These agencies have broad powers to investigate breaches of the ACL and to bring proceedings in relation to such breaches, including on behalf of consumers in some circumstances. Each of these agencies and the Australian Securities and Investments Commission (ASIC) have entered into a Memoranda of Understanding which governs how the ACL will be administered and enforced by them.

See The relationship between the Australian Competition and Consumer Commission and state and territory consumer protection agencies.

Consumer laws touch many aspects of business and in-house counsel will often be the first point of contact for the business in such matters. Being aware of the prohibitions contained in Australia’s consumer protection laws, being proactive in directing the business towards compliance, and being able to communicate the implications and risks involved when the consumer protection laws are not adhered to is critical in ensuring that the business does not breach those laws. In this topic, in-house counsel is given tips and guidance to assist in:

• identifying when consumer law issues may arise;

• applying those laws to common situations; and

• avoiding breaches of those laws.