Australia Consumer Law Essay

As the law currently stands, only those transactions that occur ‘in trade or commerce’ are protected by the consumer guarantees laid out in the Australian Consumer Law . The conduct of individuals that make one-off private sales, be it the sale of land, online goods or other goods, is not considered to possess a ‘trading or commercial character.’ The rationale for this exclusion is based on the assumption that consumer protections are unnecessary in private seller-consumer relationships, as there is no significant power imbalance . This exclusion of private one-off sales from consumer protection guarantees puts the burden on consumers to protect their own interests, while also serving to protect those sellers that act dishonestly . The intended

Cases such as Concrete Constructions (NSW) Pty Ltd v Nelson have scrutinized the exact meaning of what it is to be in trade or commerce and whether or not the parties met these criteria, as laid out in the legislation. There has been little dialogue, however, as to whether or not the inclusion of the words ‘in trade or commerce’ should be in the legislation at all. The general approach to the interpretation of legislation is laid out in s15AA of the Acts Interpretation Act 1901 (Cth) . The Act states that in ‘interpreting a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object’ . The object of the Competition and Consumer Act, as outlined in section 2, is ‘to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection’ . As the law currently stands, dishonest private sellers are essentially rewarded for their conduct, while consumers are negatively impacted, and this does not reflect the intended purpose of the legislation . The legislation should therefore be reworded to serve the intended purpose of the act, which would extend consumer protection guarantees to consumers of private one-off