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Wednesday, 28 March 2018
Page: 3063


Mr LITTLEPROUD (MaranoaMinister for Agriculture and Water Resources) (12:20): I move:

That this bill be now read a second time.

Treasury Laws Amendment (Australian Consumer Law Review) Bill 2018

On 1 January 2011, the Australian Consumer Law commenced operation as Australia's first nationwide consumer protection law.

Well-informed, confident consumers are a key element of a strong and efficient economy. The introduction of the Australian Consumer Law has been good for both consumers and business—consumers are more empowered, business compliance costs have reduced and there are fewer disputes.

Indeed, the Australian Consumer Law has been an important microeconomic reform that has provided substantial benefit to all Australians.

To ensure that the Australian Consumer Law continues to deliver, the Australian Consumer Law Review identified opportunities for reform and areas where the law can be clarified and strengthened.

This bill amends the Australian Consumer Law, contained within the Competition and Consumer Act 2010, and the consumer protection provisions of the Australian Securities and Investments Commission Act 2001, to implement a series of recommendations made in the final report of the Australian Consumer Law Review.

Schedule 1 to this bill amends the Australian Consumer Law to ease evidentiary requirements for private litigants through expanded 'follow on' provisions, enabling litigants to rely on admitted facts from earlier proceedings.

This will improve and enhance access to remedies and promote consistency with comparable 'follow on' provisions in the competition law.

Schedule 2 to this bill amends the Australian Consumer Law to extend the Australian Consumer Law and ASIC Act's unconscionable conduct protections to publicly listed companies.

The existing exclusion sought to confine the unconscionable conduct protections to those traders likely to lack the size and bargaining power to protect their own interests. Public listing was seen as a reasonable indicator of a trader's size and ability to protect its own interests. However, public listing is not necessarily a reflection of a trader's size, level of resourcing or its ability to withstand unconscionable conduct. Where there is a significant imbalance in bargaining power, a publicly listed company could find itself subjected to conduct that is unconscionable.

The amendments improve both the clarity and generic application of the unconscionable conduct protections and ensure they apply equally to all traders and support the Australian Consumer Law's objective of fostering effective competition and fair trading.

Schedule 3 to this bill amends the Australian Consumer Law to amend the definition of 'unsolicited services' to allow the protections of the false billing provisions to apply to false bills for services not provided.

Current interpretations of the false billing provisions make it difficult to enforce against suppliers of unrequested and unsupplied services, even where the supplier has falsely represented that they have supplied services to the recipient. This amendment remedies this issue.

Schedule 4 to this bill amends the Australian Consumer Law to ensure that the unsolicited selling provisions operate as intended by clarifying that the provisions can apply to public places.

Schedule 5 to this bill amends the Australian Consumer Law to enhance price transparency in online shopping by requiring that any additional fees or charges associated with pre-selected options are included in the headline price.

This amendment ensures that consumers are made aware from the start of the online payment process of the total possible amount they would pay if they do not opt out of pre-selected options. The amendment also reduces the potential for consumers to be misled.

Schedule 6 to this bill amends the Australian Consumer Law to strengthen the Australian Competition and Consumer Commission's powers to obtain information about product safety, by broadening the power to apply to third parties likely to have relevant information, rather than only the supplier.

This amendment will help regulators to respond to product safety issues in a more timely manner and promote consistency between the ACCC's compulsory information gathering powers for product safety investigations and its existing powers for enforcing other Australian Consumer Law provisions.

Schedule 7 to this bill amends the Australian Consumer Law and the ASIC Act to enable regulators to use their existing investigative powers to better assess whether or not a term of a standard form contract is unfair.

Schedule 7 to this bill amends the Australian Consumer Law and the ASIC Act to enable regulators to use their existing investigative powers to better assess whether or not a term of a standard form contract is unfair.

Currently, the ACCC and ASIC are restricted in their ability to investigate compliance and take enforcement action with respect to unfair contract terms. This is because their investigative powers are triggered by 'contraventions' or 'possible contraventions' of the law. However, as the use of unfair contract terms is not prohibited by the law, it is not possible to breach or contravene these provisions.

These amendments extend the ACCC and ASIC's respective investigative powers to enable those regulators to undertake investigations to determine if a term in a contract may be unfair.

Schedule 8 to this bill amends the Australian Consumer Law to allow third parties to give effect to a community service order where the trader in breach is not qualified or trusted to do so.

The Australian Consumer Law allows regulators to apply to a court for community service orders as a remedy for breaches. These orders typically require a positive action by a trader to perform a service. However, there may be circumstances where the trader is not qualified or trusted to perform the specified service. For example, it would be inappropriate for a trader who has caused financial harm to low income or vulnerable consumers to provide financial counselling to those consumers.

This amendment will allow regulators to seek community services orders as a remedy to a breach in more circumstances because they will no longer have to rely on the trader to carry out the order but instead can rely on a qualified third party.

Schedule 9 to this bill amends the Australian Consumer Law to clarify the scope of an existing exemption from the consumer guarantees regime for the transport or storage of goods where those goods are damaged or lost in transit.

This amendment means that individual consumers will no longer bear the full risk in circumstances where they have no control over who ships their goods to them. The amendment also ensures that consumers do not have to rely on traders to raise issues with the shipper, they are instead able to use their rights to seek a remedy directly from the shipper.

Schedule 10 amends the ASIC Act to address inconsistent terminology in relation to the sale or grant of land.

These amendments will make terminology more consistent throughout the ASIC Act.

Schedule 11 amends the ASIC Act to clarify that all Australian Consumer Law related consumer protections that already apply to financial services also apply to financial products.

The current provisions explicitly cover financial services and indirectly apply to conduct related to financial products. This is because financial services has a broad definition. However, the absence of an express reference to financial products creates uncertainty.

This amendment provides clarity that a financial product is a financial service.

These amendments, taken together, improve the efficiency and effectiveness of Australia's consumer protection regime. They strengthen and clarify the law to ensure that consumers are well-informed, and will help consumers and traders to better understand their rights and obligations and improve outcomes across Australian markets.

The Legislative and Governance Forum for Corporations was consulted in relation to the amendments and has approved them as required under the Corporations Agreement 2002.

Full details of the bill are contained in the explanatory memorandum. I commend the bill to the House.

Debate adjourned.