Competition Consumer Legislation Australian -Myassignmenthelp.Com

Question: Discuss About The Competition Consumer Legislation Australian? Answer: Introducation Under the contract law, unconscionability is referred to such terms which are so unfair or unjust, that one side of the contracting party is overwhelmed by the other side of the contracting party, which holds superior bargaining power, and which is against the good conscience (Latimer, 2012). Basically, unconscionability or unconscionable conduct covers the transactions which are undertaken in between a weak party and a dominating party. Due to this, there is an overlapping of this concept with the other vitiating factors in a contract, of duress and undue influence. The concept of unconscionability is applicable based on the scenario in which it takes place and accordingly attracts the common law or the statutory law (Vout, 2009). In equity, the unconscionable conduct is related to the conduct where one party is taken off by some other person due to the special disability help by the first person. The examples of special disability include illiteracy, age, lack of education, or thes e factors being in combination. Due to these reasons, the weaker party is treated in a harsh and operations manner (Australian Contract Law, 2018a). The following parts cover a detail on unconscionability and its various aspects in Australia, in terms of its applicability under common and statutory law and the leading cases on it. Unconscionable conduct is something which results in the transaction undertaken under the contract being null and void. There are a number of cases where unconscionable conduct has resulted in the transactions being set aside, or given a null affect (Clarke and Clarke, 2016). In Australia, the leading matter in context of unconscionable conduct is that of Commercial Bank of Australia v Amadio(1983) 151 CLR 447. In this case, a mortgage had been signed by Amadio for the purpose of securing loan for their son. The details of this mortgage or what actually was going on was not informed to Amadio. Amadio were Italian and they did not know much of English which made them nearly illiterate. When the Bank attempted to seize their home which had been mortgaged, the validity of this mortgage was challenged by Amadio. This led to the court ruling in favor of Amadio based on the presence of unconscionable conduct in this matter. The reason for upholding the presence of unconscionable conduct wa s that there was an absence of English knowledge with Amadio (Australian Contract Law, 2018b). Another example of presence of unconscionable conduct was seen in Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61. In this matter, D was infatuated towards L and he was in the habit of showering D with a number of gifts repeatedly. Once D proposed to L, she declined. After some time, D was told by L that L had been very depressed and that in case she was not able to pay the money on her home, she would be evicted from it and would have no place to live. And as soon as this would happen, L would be committing suicide. The majority of it was untrue. Responding to this management pressure, D agreed that he would buy the home for L and that he would be putting the home in Ls name as she was insisting on doing so. Certain years passed and the relationship which was present between the two got deteriorated. D asked L to transfer the home in his name as he had paid the money for it but L declined to honor this request. As a result of this, D sued L and was successful (Australian Contract Law, 2018c). The judge of the case stated that D was beneficially entitled to the land bought by him. He further stated that it would be unconscionable in this case where the home is given to L. Even upon the appeal being made by L, these were not successful, both in the Court of Appeal and in High Court of Australia. The High Court had held in this case that L had created such an environment of crisis which in reality had never been present. D held such a post in this case where he had been completely dependent on L. This led to the home being purchased by D which was just done due to D being emotionally dependent on L and the influence which she held over him, where he even disregarded his own interest. There was complete unconscionability in Ls conduct which involved careful calculation by L for inducing D for gaining benefit for her (Australian Contract Law, 2018c). Apart from the common law, the statutory law also covers the unconscionable conduct. Under section 21 of the Australian Consumer Law, there is a prohibition from indulging in unconscionable conduct with regards to the supply of goods or service, or where the goods or services are acquired in the business transactions (Australasian Legal Information Institute, 2018). There are a number of examples of unconscionable conduct, and mostly dependent upon the situations. For instance, encouraging an individual to sign a blank contract or not giving the party sufficient time for reading a contract (Coorey, 2015). Section 22 of Australian Consumer Law, provides different factors which have to be taken into account by the courts but the factors are not restricted to this section. For indulging in such conduct, the maximum penalty for individuals is $220,000 and for body corporate it is $1.1 million (Corones, 2012). An example of this can be found in ACCC v Craftmatic Australia [2009] FCA 972. In this case, the ACCC had initiated proceedings against the defendant where it was stated that they had indulged in or acted in unconscionable manner against the senior citizens, when adopting the door to door sale of beds. The claim was that an advantage was taken by the defendants of the commercial inexperience of such household and elderly customers, by using high pressure sales tactics. Even though some customers had been happy with the bed but the ones which did not want the bed or could not afford the same, were made to change their mind by use of unfair sales techniques. It was held by the Federal Court of Australia that the method of sale and promotion by the defendant covered steps which were scripted, and designed in a manner to make undue influence on the potential consumers for creating and taking benefit of unequal bargaining position. This led to the Federal Court ordering an injunction for 7 years against the defendant from a number of conducts (ACCC, 2014). Back in July 1998, the financial service sector faced a number of reforms. The primary responsibility under these changes was for the consumers and for the small business protection issue in the financial sector. There is a respective application of the aforementioned provisions of unconscionable conduct in the contracts of financial services, and the same is determined by taking into consideration, the specific definitions and exclusions covered under section 12CA, 12CB and 12CC of the ASIC Act, 2001 (Federal Register of Legislation, 2017). Even though the financial products and services have been clearly defined under this act, the provisions regarding unconscionable conduct mirror the ones covered in the Australian Consumer Law, which results in the businesses getting similar obligations for compliance when they deal in the financial services (Pearson, 2009). There is a specific prohibition of unconscionable conduct in a range of industry based legislative schemes. An example of this includes the industry which the panel has been asked to consider in their review, legislation which govern the retail tenancy, in the jurisdictions which prohibit unfair conduct or unconscionable conduct to retail lease by the parties. There are similar sections in different legislations which govern fitness services, residential property and tourism services. Though, the majority of these are covered through the governing sections of Australian Consumer Law. The courts do not determine if there has been a good or bad bargain, they simply see the opportunity which was held by the individual for their personal benefit. The case of Amadio shows that the courts are reluctant in enforcing the agreements which seem to be unequal or unfair. This is the reason why the statues have been developed with regards to the Australian Consumer Law and the ones related to the banking and finance sector (Law Teacher, 2018). Apart from these laws, the Fair Trading Acts of all the states and territories of the nation have some or other form of prohibition incorporated in them for the unconscionable conduct in their laws. The fair trading legislations of the states and territory also mirror the provisions of the Australian Consumer Law (Morandin and Smith, 2011). The key here is that the businesses need to be aware regarding the statutory protection being given against such undertaken conduct in the consumer transactions, along with the range of venues which are available, along with going to the Federal Court. Even though this law applies only on individuals and does not become applicable on the companies; section 43 of the fair trading act does cover the unconscionable acts undertaken on consumers by the traders (Campbell, 2013). There have been a number of opponents and proponents on the provisions of unfair contract terms, particularly on unconscionable conduct, by different bodies. One of such body is Financial and Consumer Rights Council Inc., which has supported the agreement of including the provisions which specifically address the unfair contract terms under the Australian Consumer Law. They stated that there was a prevalence of unfair terms in the standardized contracts which left very little bargaining power with the consumers. As a result of this, the proposal was put forward for banning some kind of unfair contract terms. In the view of Financial and Consumer Rights Council Inc, this would make certain that all of the consumers; particularly the ones which were prone to such unfair practices would have the confidence of getting in the contracts and be assured that they are properly protected through the provisions of the Australian Consumer Law (Financial and Consumer Rights Council Inc, 2018). They even presented their recommendations on this aspect and stated that the consumers would be benefited where certain terms had been banned from being made a part of the standardized contracts. This was particularly the term which was related to the retaining of the title for the suppliers of goods, which is not possible to be removed from the premises of the consumers without any damage; and the terms which allow the suppliers to get a repossession of goods. This was due to the fact that the repossession of goods was a very intimidating and frightening act for the consumers. As a result of this, it would have a devastating impact over the most vulnerable consumers. The consumers who were single parents, from non English speaking households, with disability, low income earners, or were elderly were more vulnerable for being intimidated for paying these debts which were owed through the act of the supplier repossession (Financial and Consumer Rights Council Inc, 2018). Thus, from the discussion undertaken in the previous segments, it becomes clear that Australia has a number of laws which can protect the unconscionability or unconscionable conduct taking place in the nation. Owing to the presence of unconscionable conduct, the contract is not deemed as valid and the weaker party is protected through the law. This is present both in cases of common law and the statutory law. The previous discussion covered the different cases in which the court set aside any conduct which was unfair or unconscionable for the consumer. The leading case was that of Amadio which basically brought a revolution in this context, and also resulted in changes being economics forward in the laws to restrict any and every kind of unconscionable conduct. This was not restricted to the consumer laws but also came to be applicable on the financial industry through the different statutes. The crux of the matter is that the nation takes a proactive approach against such conduct. F urthermore, the bodies like FCRC make contributions in this regard, on restricting unconscionable conduct in all the sectors in the nation. References ACCC. (2014) Business snapshot. [Online] ACCC. Available from: https://www.australiancontractlaw.com/law/avoidance-unconscionable.html [Accessed on: 22/01/18] Australasian Legal Information Institute. (2017) Competition and Consumer Act 2010 - Schedule 2. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html [Accessed on: 22/01/18] Australian Contract Law. (2018a) Unconscionable Conduct. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/law/avoidance-unconscionable.html [Accessed on: 22/01/18] Australian Contract Law. (2018b) Commercial Bank of Australia v Amadio. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/cases/amadio.html [Accessed on: 22/01/18] Australian Contract Law. (2018c) Louth v Diprose. [Online] Australian Contract Law. Available from: https://www.australiancontractlaw.com/cases/louth.html [Accessed on: 22/01/18] Campbell, D. (2013) International Consumer Protection, Volume 1. New York: Springer. Clarke, P., and Clarke, J (2016) business-law: Commentaries, Cases and Perspectives. 3rd ed. South Melbourne: Oxford University Press. Federal Register of Legislation. (2017) Australian Securities and Investments Commission Act 2001. [Online] Federal Register of Legislation. Available from: https://www.legislation.gov.au/Details/C2017C00326 [Accessed on: 22/01/18] Financial and Consumer Rights Council Inc. (2018) Submission. [Online] Financial and Consumer Rights Council Inc. Available from: https://archive.treasury.gov.au/documents/1501/PDF/Financial_and_Consumer_Rights_Council.pdf [Accessed on: 22/01/18] Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Law Teacher. (2018) Unconscionable Conduct In Australia. [Online] Law Teacher. Available from: https://www.lawteacher.net/free-law-essays/contract-law/unconscionable-conduct-in-australia-contract-law-essay.php [Accessed on: 22/01/18] Morandin, N., and Smith, J. (2011) Australian Competition and Consumer Legislation 2011. NSW: CCH Australia. Pearson, G. (2009) Financial Services Law and Compliance in Australia. Victoria: Cambridge University Press. Vout, P.T. (2009) Unconscionable Conduct: The Laws of Australia. 2nd ed. Pyrmont, NSW: Thomson Reuters.