: Consumer Law and Policy in Australian and New Zealand

Consumer Law and Policy in Australian and New Zealand

Mabel Tsui

consumer-law-and-policyJustin Malbon and Luke Nottage (eds); 
Federation Press, 2013; 480pp; $125 (paperback)

Despite the youthfulness of the Australian Consumer Law (which came into full force in 2011, replacing the Trade Practices Act regime), if the recent International Association of Consumer Law Conference held in Sydney is anything to go by, this Law has already generated much discussion among academic and practitioner circles about its merits and operation. Consumer Law and Policy in Australia and New Zealand, edited by Professor Justin Malbon and Associate Professor Luke Nottage is therefore a welcome addition to the literature on this area. Although the book looks at two jurisdictions, the editors make it clear at the beginning that given the close economic ties and efforts to create a single economic market between the two countries, it is necessary that ACL reform be viewed in the context of these developments. Also worthy of consideration is that in recent years, both countries have mutually influenced each other in their domestic laws, and thus, it is only right that their laws should be discussed together.

The second thing of note is how, in just fifteen chapters, the editors and contributing authors have managed to compile a book which provides a most comprehensive and complete picture of the current Australian and NZ legal landscape in consumer law. General issues such as history and policy behind the ACL are introduced in chapter one by the editors. Interestingly, they also raise an argument for incorporating consumer psychology into policy and regulation reform efforts. The introduction then leads into the chapters on substantive legal areas, where the rest of the book is divided as follows: Unfair Practices and Defective Products; Consumer Credit and Investment and Access Remedies and Enforcement. Given this book has a pro-consumer focus, each part also includes a chapter on who is the consumer and why they need such protection in each area of the law. One concern identified early on in the book by authors Freilick and Griggs is the overarching uncertainty surrounding the definition of ‘consumer’ in the Law, especially its dependence upon the characterisation of goods being ‘of a kind’ which is ‘ordinarily acquired for personal, domestic or household use’ in section 3(b). [p 46] The authors put forward examples as well as Australian cases about this term to demonstrate the ambiguity of the definition and the Law in general.

This is just one of many examples in the book where the contributing authors, being experts in their field, carefully detail and set out each of their topics, reflecting the logical arrangement of the book overall. Each chapter starts with background, discusses the operation of the law and where relevant, sets out ideas for future law reform. After setting out the areas traditionally associated with consumer protection law, Chapter Fifteen ends the book with a look into future developments in the form of ‘E-commerce’ or ‘e-tailing’ which, given the increasing rise in online transactions (and thus the rise of associated security problems) is probably more of a current concern than a future development. Griggs discusses the extraterritorial application of Australian laws and points out that cooperation between domestic and overseas agencies would be vital to such laws having any effect or being enforced. There are also the legal implications of a consumer’s physical actions or treatment of goods as to whether an agreement is formed in the circumstances – for example: opening the plastic wrap, clicking on the ‘I agree’ box or simply continuing to use the software. While the statement ‘the most common lie is “I have read and accept the terms and conditions” ’ may be funny, there are also serious legal consequences arising from the truth of this simple line, and is something that is sure to provoke further discussion and debate.

As discussed, the book focuses predominately on Australian and New Zealand law. However, the influence of their laws by Europe is undeniable and there is substantial reference to European legal developments throughout. As a result, practitioners, academics and law students, as well as policy makers will all benefit from this text to some extent, whether it is for a general summary of Australian consumer law, to understand the policy objectives driving the regime or for comparative law research purposes. The editors are to be commended for encapsulating such a detailed and complex regime into a logical and well-structured publication.

MABEL TSUI is a PhD candidate, Faculty of Law, 
School of Law, QUT.

(2013) 38(3) AltLJ 201
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