Consumer law

contracts legislation #1

Legislation: schedule 2 competition and consumer act 2010 (cth): protects against unfair contract terms in standard form consumer contract

Contrats legislation #2

contract review act 1980 (NSW): allows courts to grant relief where a contract is found to be unjust

When is a contract unfair

A contract is unfair if it

• causes a ‘significant imbalance’ between the rights and the obligations of the buisness and consumer

• it is not ‘reasonably necessary to protect the buisness’

• It would cause the consumer ‘detriment’

Contract law reform

• Nov 2023 - law reform - using unfair contracts  terms was banned and penalties applied

Contract law case: ACCC v Telstra

• it sold mobile contracts to more than 100 indigenous consumers across 3 states and territories

• Telstra admitted it acted unconscionably when sales staff at five licensed Telstra branded stores used unfair practices to sign up 108 Indigenous consumers to multiple post-paid mobile contracts which they did not understand and could not afford.

• The conduct caused many of the affected consumers severe personal financial hardship and great distress, including where some unpaid debts were referred to debt collectors. - average debt per consumer = more than $7400

Negligence in consumer law

consumer must prove - defendant owed a duty of care, care was breached, damage occurred, damage was caused by the breach

Negligence legislation

covered under section 54 of australian consumer law - acceptable quality

Negligence case - Samsung galaxy S7

• recall over 50,000 galaxy note7 smartphones after discovering the batteries of some phones exploded while charging

• Samsung halted all sales of the phone and was removed from Au’s big retailers

• Sending of replacement courtesy phones or full refunds

Regulation of advertising and marketing legislation

schedule 2 of the CCA 2010 (cth)

2026 advertiising and marketing reform

The Treasury Laws Amendment (Doubling Penalties for ACCC Enforcement) Act 2026 doubled the maximum corporate penalties for marketing and consumer law breaches to $100 million per contravention

reg of advertising and marketing case: ACCC V Reckitt Benckiser (2016)

• Reckitt Benckiser made packaging representations regarding its pain tablets claiming that its Nurofen pain tablets were specially formulated to treat back pain, period pain, migraine pain and tension headaches. The active ingredient (ibuprofen) is not capable of ‘targeting’ any particular kind of pain. The product was sold at about double the price of standard Nurofen.

• At first instance, the FCA imposed civil penalties of 1.7 million

• Media - non-legal response - concerns expressed by media and politicians about the adequacy of the penaties (upgraded to $6 million) on appeal)

Awareness and self-help legislation

ACL (schedule 2, competition and consumer act 2010 (cth) - grants consumer guarantees including the right to a repair, replacement or refund where there is a minor or major failure

Awareness and self-help document: Australian consumer survey 2023

92% are aware there are laws in place to protect their basic consumer rights when purchasing products or services BUT ONLY 26% said they have very good or excellent understanding

Awareness and self-help document #2: minor headaches now add up to major failures under australian consumer law (Michael Corrigan)

under new law changes, multiple minor failures may now amount to a major failure if it has a ‘significant impact on the customer’s overall use of the product’s core function’

Awareness and self-help international instrument

UN guidelines on consumer protection - principle 5: right to redress + principle 2: right to be informed

Awareness and self help legislation INEFFECTIVENESS

the obligation  is on manufacturers to fulfil  warranties and guarantees and to supply spare parts and undertake repair in  reasonable time period  -  since consumers don’t have direct access to manufactures they might be deterred from taking direct action

Ineffectiveness of awareness and self-help media article

Media: Right to repair in Australia (CHOICE, may 2021)

• ‘australia is late to the ‘right to repair debate’

Ineffectiveness of awareness and self-help document

Australian consumer survey 2023

• 53% of people received less than 25% of their money back

• Only 58% of businesses consider that businesses are likely to be detected if they  do not comply with the ACL. -

• ONLY 26% said they have very good or excellent understanding of their rights under consumer law

State govt organization - NSW fair trading legislation

Fair trading act 1987 (NSW)

• educates consumers about their rights, informs of scams, illehal matketing practices and self-help strategies

• Complaints register - includes all buisnesse’s including online ones that have received 10 or more complaints in a month

effectiveness of NSW fair trading case

Case: bloomex (2019-2023)

• Bloomex was found to have been engaging in ‘misleading and deceptive conduct’ between 2019 and 2023

• Fake discounts - displaying discounts despite never selling at the previous price and fake star ratings

• Fined $1m + a program to ensure compliance with australian consumer law

• Section 219 allows the regulator to accept an enforceable undertaking - legally binding promise from the buisness to ‘fix their behaviour’

• While enforceable undertakings re meant to be a ‘swift and cost effective’ alternative to court, they are court enforceable - in Bloomex case, the matter proceeded to court

NSW fair trading strategy and priorities annual report (2024-2025)

Received 91,760 online enquiries and calls for consumer matters and 19,811 consumer complaints

Ineffectiveness of NSW fair trading case

Civil proceedings case: Schembri wedding photography (2022)

• claims he failed to deliver full wedding packages, particularly albums and prints, while costing a premium fee

• Clients ‘left frustrated’ after attempting to take action via NSW fair trading

• NSW couple had no success with NSW fair trading, and Schembri’s buisness avoided appearing on the agency’s official complaint - The NSW Department of Fair Trading has received 16 complaints against Mr Schembri since 2018 but has not reached the threshold of 10 complaints a month required to place him on the Complaints Register.

Legal aid NSW legislation

Legal aid act 1979 (NSW) - provide legal advice to consumers who cannot afford priv legal rep

Media Legal aid: ABC law report - scam victims want compensation as HSBC settles ASIC action (may 2016)

• substantial increase in people asking for help after they have been duped out of their money

• Romance scams - told Luke she needed help transferring valuables - Luke transferred thousands of his own money into international accounts

• LEGAL AID - working with luke to support them

legal aid document - legal aid report 2023-2024

• 80% of clients believed that having an ongoing legal aid lawyer improved their legal system

• Every dollaer spent on legal aid is estimated to save up to 2.25 though increased efficiency in the broader justice system - resource efficiency

Buidling commission NSW legislation 1

Home buidling act 1989 (NSW)

• foundation piece of legislation - legal framework

• Must have a licence + must provide homeowners with a warranty -  6yrs for major defects, 2 for minor defects

Building commission NSW legislation 2

design and building practitioners act 2023 (NSW)

• s.37 - duty of care

• Practitioner registration

• RESPONSIVENESS - large gap between legislations

building commission NSW legislation 3 + 4

Law reform: Building legislation amendment act 2023 (NSW)

- expansion of powers - gave inspectors more power to stop building immediantly

Residential apartment buildings act 2020

• introduced rectification orders - under s.33

• Stop work

• Could lead to denial of occupational certificate

building commission NSW general info

• established December 2023 through consolidation of NSW fair trading and the office of the NSW building commissioner

• Central regulator for the NSW building and construction industry.

• Processes over 100,000 home building licence applications per year: over 200,000 active licences

Building comission NSW case: Pafburn pty ltd V the owners (2024)

• owners corporation of a north Sydney residential building sued the builder (pafburn) and the developer (madarina) for serious defects

• Builder admitted they owed a duty of care under the DBPA, but they should only pay partial damages

• S.37 of DBPA establishes a duty of care for construction work and s.39 states that duty is non-delegable

• HCA ruled in favour of owners, because the duty is non-delegable and thus the developer and builders are 100% liable - binding precedent

Building commission NSW media

building commission NSW blitzes New England (august 2025)

• successful inspection blitz of 59 sits, bringing the total number of sites inspected since December last year to 439

Building commission NSW document: buidling commission NSW annual statistics

• 16% of new buildings in 2022-24 had fire safety defects

• 36% of dfects were reported to the regulator

Federal government organisation: ACCC legislation (that it administers)

Competition and consumer act 2010) - schedule 2

ACCC case

Case study: ACCC v Qantas airways ltd (2024)

• facts - Qantas sold tixs on flight it had already cancelled

• Provision - s18 - misleading or deceptive conduct

• Outcome - federal ct ordered 120m penalty

Effective - record penalty deters future misconduct

ACCC law reform

Law reform - penalty escalation

2018 - 10 million under the treasury laws amendment (2018 measures no.3) act 2018 (cth)

2022 - $50 million - treasury laws amendment (more competition, better prices) act 2022 (cth)

2026 - $100 million - treasury laws amendment (doubling penalties for ACC enforcement) act 2026 (cth)

ACCC media

media: Qantas pays 120m to settle ghosts flights case (Australian financial review, may 2024)

Quote: Qantas’ behaviour was ‘egregious and unacceptable’ - Ms Cass-Gottlieb - ACCC chairwoman

ACCC document - ACCC annual report 2024-2025

• financial penalties of 181.35m

• 17 new court proceedings

• 26 administrative action - non-court enforcement for lesss serious breaches

ACCC - greenwash case

Case: ACCC v Clorox Australia Pty Ltd (2024)

• ordered to pay a total penalty of 8.25M for claiming that GLAD bags were partially made of recycled ‘ocean plastic’

• Between june 2021-july 2023 Glad breached australian consumer law by representing the packaging of GLAD to be green ‘50% ocean plastic recycled’ - not the case

• Products actually made from 50% plastic waste from communities in Indonesia with no formal waste management systems

• Clorox (brand) ordered to set up an ACL compliance program and publish a corrective notice on it’s website and pay part of the ACCC’s legal costs

ACCC - Greenwash media

Clorox fined 8.25M over misleading ‘ocean plastic’ claims on GLAD bags (ABC news, April 2025)

• ACCC chair Gina Cass - “the false and misleading claims constitued a serous breach of trust”

ACCC - greenwashing documents

The Law Council of Australia paper: Greenwashing, Senate Environment and Communications References Committee (18 August 2023)

• Suggested increased transparency and accountability around certification and accreditation of products, services and investments

• Guidance of paramaters of acceptble use of common terms - “green”, “carbon neutral”

federal government organisation - ASIC legislation

ASIC act 2001: Section 12DA of the ASIC Act 2001 makes it illegal for anyone to engage in misleading or deceptive conductwhile dealing with financial services.

fed govt orgaisations case: ASIC

Case study: ASIC v national australia bank (2022)

L: ASIC act 2001 (cth)

• NAB continued charging periodic payment fees knowing customers were entitled to exemptions

• Case: ASIC commenced federal court proceedings, November 2022 - 18.5M penalty ordered

• Media: “NAB was promoting it’s own interests over those of it’s customers” - ASIC deputy chair Sarah Court

Industry organisations general document

Documents: O’Shea, P and Rickett, C (2006), In defence of consumer law: the resolution of consumer disputes, Sydney Law Review 7)

• more efficient, less confrontational and less expensigve

Industry organisation - TIO

• TIO provides free, independent and informal resolution of complaint

• All phone and internet providers are required to join the TIP scheme

• If a telco fails to join scheme they deny their customers access to dispute-resolution avenues

• All eligible telcos have a legal obligation to join the TIP and comply with decisions made by the TIO

TIO document

TIO data snapshot (Q2 2026)

• 14,017 complaints

• 6,391 mobile service complaints

TIO media article

Telecommunications industry ombudsman calls for new rules for phone and internet providers (June 2023)

• made several recommendations for change: providers reduce barriers for consumers seeking help, regulations for billing, credit management and contract information, regulations to protect vulnerable customers

TIO media - limitations

Tech giants driving rise in Digital platform (TIO news)

• “unlike issues with Telco providers, we don’t have the power to help resolve their digital platform disputes”

• ‘We are calling on the Australian government to expand the TIO to become the coommunications ombudsman”

TIO limitations

• lack of transparency + operation costs (independent review of TIO)

• Can only make binding decisions about complaints involving amounts up to $100,000

• Only deal with complaints that occurred within the last 2 years

• Reactive, rather than proactive

• Reliance on ACMA to take federal court action to enforce TIO decisions (lack of enforceability)

• Reliance on industry cooperation

• Inconsistent consumer awareness - many consumers unaware TIO exists or what they can complain

NGO choice - general statistics

Choice

• 170,000 mmembers

• 65 years operating

• 100,00+ campaing supportrs

Power - raised public awareness - 2023 campaign generated political pressure for reform

Limit: feb 2026 - still campaigning for some reform

2023 choice campaing

• businesses are legally required to ensure products are safe - they’re not

• Only a small no of products have mandatory safety standards under the ACL

• Feb 2026: CHOICE still campaigning - ‘safety washing’ by online retailers

• 3000 dangerous products removed by ACCC takedown notices

• CHOICE cannot recall a product only the ACCC or the minister can

Choice case - cots

called for greater safety regulations - the introduction of a legal obligation to ensure products are safe before being offered for sale” (choice, december 2022)

• outdated mandatory standards around cots - 11/12 examined having defects

Choice - historical successes

recall of Takata Airbags in 2017, which led to a mandatory nationwide recall in 2018.

CHOICE - continued campaign for reform

despite many online marketplaces partaking in a ‘safety pledge’, many failed to remove the recalled products from their website in an  appropriate time, or they relisted the products. (ABC, February 2026).

Media - benefits

• increase consumer awareness of rights and risks

• Expose unsafe products and deceptive buisness practices

• Put pressure on buisnesses, governments and regulators to ct

• Raise funds and support for NGO campaigns

• Amplify ACCC enforcement actions

• Drive law reform through sustained public pressure (marketing innovations CI)

media - limitations

Media cannot

• provide legally enforceable remedies

• Compel businesses to comply with the law

• Guarantee accuracy - can sensationalise issues

• Replace regulatory action

• Reach all consumers equally - digital divide

• Ensure protection of the most vulnerable consumers

Social media

Social media

• enables consmer advocacy at scale (viral product complaints)

• Allows rapid sharing of safety warningn and recalls

• Supports NGO campaings (choice reaches millions via social media)

Social media harms consumers

• 81% of 118 influencers raised concerns for misleading advertising (ACCC 2023 influencer sweep)

• Photobook shop - 39,600 penalty - undisclosed paid influencers review

• 481,523 scam reports

Social media - case

Case: ACCC V meta (2022)

ACCC alleged meta engaged in misleading conduct by publishing scam celebrity crypto ads on facebook - demonstrates the difficulty of holding global platforms legally accountable - offshore nature of platforms makes enforcement difficult

Technology CI: law is struggling to keep pace

Media - social media

Media article: ACCC warns against scammers targeting buyers of sold-out concert tickets on social media (ABC news, jan 2019)

• “the ACCC received over 1000 complaints about ticket scams last year’ (2018)

Media article: ACCC warns of ‘sophisticated’ ghost stores ahead of black Friday, cyber Monday sales (ABC news, nov 2025)

• ACCC has called on SM platforms to take greater responsibility for online retailers misleading consumers via advertisements on their platforms

courts and tribuals - NCAT legislation

Legislation: Civil and administrative Tribunal act 2013 (NSW)

NCAT CASE

Case: Pepper v Booth Motor Group (2024)

• Mr Pepper bought a 2020 car -  over 3.5ys and 17 repair attempts the seller sold the buisness to Tuggerah Auto groups

• Major failure - applicant entitled to reject under s.293(3)(a)

• Shows NCAT can ward significant remedies but enforcement still required by courts if party doesn’t comply

• Limitation: consumer had to wait 3.5 yrs of failed repair

• Refund of $25,161.46

NCAT case #2

Case: Baxter V telgate pty ltd (2017)

• claiming a full refund on furniture purchased from Telgate on the grounds of unacceptably quality

• NCAT dismissed application - no major failure that could be remedied with minor repairs under the ACL

NCAT benefits

• accessibility - self-representation

• Law reform - brought together 22 other consumer tribunals

• sees claims up to 100,000 dollars

• Hearing time: within 6 weeks of lodging - limited time lag - effectiveness

NCAT limitations

• Baxter V telco - no major failure found

• Lack of media awarenesss - many consumers unaware NCAT exists

• Fees schedule - $62 for a standard complaint - costly for consumers

Courts - federal court legislation

federal court of australia act. 1976 -

federal court case

Case: ACCC v Coles (2026)

• Fed court found coles ‘down down’ pricing misled consumers - price tickets suggested higher discounts

• ACCC action: misleading and deceptive conduct under ACL s.18

• Penalty to be determined

Federal court media

Coles found to have misled shoppers on discounted items in bombshell federal court case (ABC, may 2026)

• 13 of 14 ‘down down’ tickets investigated were not legitimate

• Class action lawsuit will seek compensation for consumers who shipped at Coles and bought products covered by the case

Federal court strenghts

• ability ro impsse massie penalties - deterrent -

• Boosts ACCC - ACCC cannot fine directly - needs courts

Class action media article

ABC october 2019 - “it agreed to pay 32.5 million rom it’s existing cash reserve within 21 days”

Class action- JB Hi FI

• sold extended warranties that allegedly had no value becuse consumersalreayd had those rights under australian consumer law

• “Little more than a junk add on” (SMH, Dec 2023)

Contemporary issue - credit (why it’s important)

• 1/3 of Australian credit card holders rely on credit to make ends meet (roy morgan, nov 2025)

• 14% of credit card holders also use BNPL

• 11% of adults don’t pay off their credit card every month

• 30% of australians feel they can’t manage without credit - imbalance of power

BNPL - credit (

Limitation - BNPL - UNSW law journal 2024

• 60% of BNPL users are aged 18-34 - 2 in 5 earn under

• 38% had low finanical literay

• 28% earned less than 25,000 per year

• BNPL products charged no interest - not considered credit under the NCC

• No requirement to hold an Australian credit license

• Only a voluntary AFIA code (from march 2021) - no enforceability

Credit legislation

Legislation: National consumer credit protection act 2009 (cth) - schedule 1

Law reform for BNPL

• 2024: may - bill introduced

• 2024: treasury laws amendment (responsible BNPL and other measures act) 2024 passed

BNPl document - treasury laws 2R speech

• “strikes an appropriate balance between preserving the benefits of access to low-cost credit and addressing the risks of consumer harm

• “73% of financial counsellors said their clinets have missed other payments.. in order to pay and service BNPL debt”