Almost a year after state and territory consumer ministers agreed to open consultation on options to address the gap in Australian Consumer Law (ACL) around unfair trading practices, Treasury has released a Consultation Regulation Impact Statement (CRIS) and given stakeholders 91 days to respond starting 31st August and ending 29th November 2023.
Broadly, the policy options as laid out by the CRIS are:
- Status quo – changing nothing about the current system.
- Amend statutory unconscionable conduct – retaining most of the current law but extending unconscionable conduct to include unfair conduct.
- Introduce a general prohibition on unfair trading practices – the same approach as the United States of America.
- Introduce a combination of general and specific prohibitions on unfair trading practices – the approach of the European Union, Singapore, and the United Kingdom.
Consumer groups have overwhelmingly welcomed the move with a press release from CPRC (Consumer Policy Research Centre) featuring CALC (Consumer Action Law Centre), CHOICE, FCA (Financial Counselling Australia) and FRLC (Financial Rights Legal Centre) released the day of the announcement. From CPRC’s press release:
CPRC CEO, Erin Turner underscores the urgency
CPRC, “Consumer groups welcome next step to introduce fairness laws” (31/08/2023).
“This consultation can help Australia make a much-needed change to our consumer laws.
“We have protections to stop businesses from lying to customers, but we have lagged when it comes to stopping them from treating customers unfairly.
“CPRC has examined unfair trading laws that already exist in Europe, the United States, the United Kingdom and Singapore; they have effectively stopped harmful practices that still continue in Australia, like when businesses trap people into paying for unwanted subscription services.”
CALC CEO, Stephanie Tonkin highlights the daily struggles faced by consumers
“We see the harms caused by unfair trading practices on our frontline services every day. Consumers need extra protections in the cost-of-living crisis – vulnerabilities are being heightened, unfair trading practices are exacerbating the situation – urgent reform is needed now.
“Right now, the bar is too high, allowing some businesses to get away with unfair practices that are designed to harm customers.
“I am particularly concerned for people in vulnerable situations who -as a result- are left worse-off with no redress.”
CHOICE Senior Campaigns and Policy Advisor Alex Soderlund points to the cost to consumers
“We’re pleased to see progress on banning unfair business practices, after CHOICE has been calling for this reform for years. We’ve unfortunately recently seen more examples of unfair business practices, ranging from businesses who make it extremely difficult to unsubscribe from an online service, to companies using aggressive sales tactics to sell unaffordable, poor value products to people living in remote Indigenous communities.
“During a cost of living crisis, it’s especially crucial that we stamp out unfair business models and practices that cost people time and money. Nobody likes to feel tricked, trapped, pressured or exploited, but unfair business practices will only continue to proliferate until we close the gaps in Australia’s consumer laws.”?
FCA CEO, Fiona Guthrie speaks on the gaps in the current system
“Our laws need to keep up with community expectations. Every day financial counsellors see businesses engaging in unfair practices, but our laws aren’t broad enough to stop them. Examples include people being charged for services they could get for free, the sale of goods to vulnerable people at inflated prices, price discrimination and barriers that make it hard to cancel services.
“Small business financial counsellors report that some business lenders charge fees to consider a hardship arrangement or may not respond at all, while others charge eye watering rates of interest and default fees.”
FRLC CEO, Karen Cox emphasises the importance of alignment in regulation
“The unfair trading provisions must be mirrored in the ASIC Act. There have been many instances of unfair conduct in the areas of credit and financial services.
“We know from experience that where there are gaps, unscrupulous players will rush in to take advantage. We have a chance to get this right the first time.”
More information about an unfair trading law can be found in this CPRC report How Australia can stop unfair business practices. More information on the consultation can be found on the Treasury website here, including links to the full Impact Statement.