Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Tough consumer laws for the ACT



Download PDFDownload PDF

145.

The chapter recommends a national system of

Legal Aid and welcomes the introduction and development

of the Australian Legal Aid Office.

It also discusses the Legal Aid Bill and

recommends certain amendments which might be made.

The Paper is based substantially on Professor

Sackville's discussion Paper on Legal Aid which was

released in November,- 1974, and which will be published,

by the Australian Government Publishing Service shortly.

Canberra.

6 August, 1975

55/75

TOUGH CONSUMERS LAWS FOR THE A.C.T.

The Task Force on A.C.T. Consumer Protection,

appointed earlier this year, today reported to me and

presented three draft Ordinances which envisage

significant measures to strengthen the hand of consumers.

The draft Ordinances relate to the Sale of

Goods, Misrepresentation, and Manufacturers Warranties.

The Task Force, which was appointed jointly by

the Minister for Capital Territory, Mr. Gordon Bryant,

and myself, has recommended unanimously that the Ordinances

be introduced into the Australian Capital Territory.

I have written to Mr. Bryant supporting this

recommendation, and requesting that the draft Ordinances

be forwarded to the Legislative Assembly for consideration.

146.

The first of the draft Ordinances - the Sale

of Goods Bill 1975 - gives effect to recommendations

of the English Law Reform Committee, and the Sale of

Goods Committee of the Law Council of Australia. They

will provide significant benefits, particularly to consumers,

in contracts for the purchase of goods.

The Bill seeks to repeal a section of the

existing Sale of Goods Ordinance 1954-196? which provides

that contracts for the sale of goods of $20 or upwards

are not enforceable by action unless they are in writing.

This section has been a blight on our law for many years.

The Bill also seeks to repeal a section of the

existing Ordinance which provides that where a contract

is for goods the property in which has passed to the buyer,

the buyer loses his right to reject the goods and to treat

the contract as repudiated. The existing Ordinance

provides that in a sale of goods the property passes as

soon as the contract is made. As a result, the right

of rejection in most instances arises and is lost at the

very same minute.

The amendments make the loss of the right to

reject goods dependent on acceptance alone.

Further amendments will ensure that a buyer is

not deemed to have accepted the goods unless and until he

has had a reasonable opportunity of examining them for the

purpose of ascertaining whether they are in conformity

with the contract.

The second draft Ordinance, relating to

Manufacturers Warranties, is perhaps the most significant.

It seeks to rectify the deficiencies in the present law

by providing a clearly'stated statutory rule-holding a

manufacturer liable for breach of any express representations,

147.

and also deeming him to have given an implied warranty as

to the quality of his goods and, where appropriate, implied

warranties as to fitness for purpose, availability of spare

parts and certain implied warranties where the sale is by

sample or description.

The Ordinance also makes it an offence for a

manufacturer to attempt to exclude these obligations that

are imposed upon him by the Ordinance. The maximum fine

for attempting to do so -is $1,000. Consumers have not had

this protection before.

The Bill gives effect to recommendations in

the Report on Consumer Warranties and Guarantees in the

Sale of.Goods by the Ontario Law Reform Commission.

The Misrepresentation Bill overcomes the

unfortunate legal situation which now applies whereby a

person induced into a contract by misrepresentation is

restricted in the remedies available to him.

, In fact, the remedies are only two: he can

rescind the contract, but only if it has not been performed

and he may have committed himself to liabilities on the

strength of the contract; and he is entitled to damages if,

but only if, he can prove the misrepresentation was made

fraudulently. This is not easy for him to do, because he

does not know what the knowledge of the seller was and,

in any case, the burden of proof of fraud is naturally

very high.

The Bill,will: ,

. extend a party’s right to rescind a contract

induced by innocent (i.e. non-fraudulent)

misrepresentation;

. confer on a party to such a contract a right

to recover damages where the misrepresentation

was made negligently;

148.

. empower the court to award damages instead of

ordering rescission of the contract;

. limit a party’s right to exclude by contract

his liability for misrepresentation.

The Bill recognises that civil remedies alone

are not sufficient to protect the public against exploitation

in commercial dealings. Unscrupulous traders rely on their

experience that most of the members of the public do not

follow up their legal rights and do not take the necessary

legal proceedings to enforce them.

The Bill therefore, provides a maximum fine of

$1000 where a person acting in trade or commerce makes a

false statement which induces another person to enter into

a contract. Experience has shown that the presence of this

kind of sanction should have a very salutory effect on such

undesirable practices in commercial dealings. -

In drawing up the Misrepresentation Bill, the

Task Force took particular account of the English Law

Reform Committee's Tenth Report, and of legislation introduced

in the United Kingdom in 1967 and South Australia in 1971.

It is my intention to forward drafts of the

proposed Bills to interested persons and organizations in

the Australian Capital Territory, in order that they can be

debated fully and publicly.

In conclusion, I pay great tribute to the work

done by the Task Force and draw attention to the speed with

which the Task Force has been able to bring down its

recommendations.

The Task Force is currently working on further

draft legislation for the protection of consumers in the

149.

A.C.T. and I expect to receive a further report shortly.

This report should include draft measures covering

harsh and unfair provisions in contracts, consumer referees

and the content of manufacturers' guarantees.

Canberra '

11 August, 1975 /

56/75

OFFENCES AT SEA

Statement by the Attorney-General, Mr Kep. Enderby, Q.C.

’ The Attorney-General, Mr Kep. Enderby, Q.C.,

announced today that work had begun on the preparation of a

comprehensive code relating to offences at sea. This

legislation would deal with offences committed at sea on

Australian ships and by others subject to Australian

jurisdiction. The legislation would also deal with the

unsatisfactory position that has been shown to exist as a

result of the High Court decision last year in R. v. Bull

(a case concerning the smuggling of drugs into the Northern

Territory).

, In that case, the Chief Justice, Sir Garfield

Berwick, pointed to the anomalies that exist in the present

law and to the heed for legislation to clarify and modernise

the position. Sir Garfield observed that "The circumstances

of this case point up the need for the Parliament to

Exercise its legislative power under section 76(iii) (of the

Constitution) ... It is highly inconvenient that in a

matter of the criminal jurisdiction the complexities

disclosed in this case' should remain. It is also inappropriate

at this time that ... the power of a court in Australia to

try extra-territorial offences should be derived from and be

limited by Imperial legislation".