The Consumer Action Law Centre is on ‘Regulator watch’

The Consumer Action Law Centre has released their report Regulator Watch: The Enforcement Performance of Australia’s Consumer Protection Regulators

Consumer Action believes that a regulatory scheme with well-designed rules will be ineffective in addressing industry or market-wide problems if it can only be enforced by individual consumers taking legal action against individual breaches of the law. Enforcement by regulators is thus an essential part of an effective consumer protection framework.

In its 2008 Review of Australia’s Consumer Policy Framework, the Productivity Commission recognised that not only are regulators essential, but also that regulators As such a regulatory scheme with well-designed rules will be ineffective in addressing industry or market-wide problems if it can only be enforced by individual consumers taking legal action against individual breaches of the law should be visibly accountable for their performance.1

This new report, Regulator Watch: The Enforcement Performance of Australia’s Consumer Protection Regulators, was conceived in response to the absence of a public mechanism to compare whether, and if so, how much, enforcement work is being done by our various consumer protection regulators. In the absence of such a mechanism it is not possible to know whether regulators have performed well in applying their enforcement powers effectively in the interests of consumers.

Recommendations from the Regulator Watch report:

Recommendation 1: Increase the quantity of enforcement work.

There is room for all consumer protection regulators to increase the amount of enforcement work that they undertake. There is significant need for an increase in activity on the part of Qld, NT, ACT, NSW and Vic and possibly WA.

Recommendation 2: Report better on enforcement work

With the exception of ASIC and the ACCC, who should seek to maintain current high standards, all consumer protection regulators should significantly improve the way they report on their enforcement work to the community, so that consumers and businesses can be sure that they are performing a good job. This is particularly critical for ACT, NT, Qld, SA and Tas.

Recommendation 3: Vulnerable and disadvantaged consumers as witnesses

That government, regulators and consumer organisations work with courts and policy makers to ensure that the interests of vulnerable and disadvantaged consumers benefit from CP enforcement including:

  • Regulators should develop processes to better support witnesses noting the suggestions at Section 5 of this report.
  • Regulators should work with Courts, policy makers and consumer organisations to explore the use of alternative forms of evidence to prove breaches of the law and/or losses incurred by consumers as a result of those breaches including tendency or coincidence evidence and appropriately robust survey evidence.

Recommendation 4: Use of the media

Regulators should make systemic use of the media to increase the deterrence value of their enforcement actions and to gain maximum educative value from enforcement outcomes.

Government, regulators and consumer organisations should educate the media about the role of regulators and enforcement, including challenging the media’s understanding that regulators must always win in court.

Recommendation 5: Reporting to consumer organisations

Regulators should set up improved systems to regularly and routinely report to consumer organisations on
outcomes of complaints made by or through those organisations.

Recommendation 6: Model litigant policy

Regulators and the governments to which they are accountable should ensure that the model litigant policy
does not interfere with regulators’ ability to use their enforcement powers to protect consumers and where
appropriate to test the law.