Western Australia to Realign its Consumer Law to National Laws

The Western Australian Government on Tuesday (15 May 2013) introduced into its Legislative Council legislation intended to realign the Australian Consumer Law as operating in Western Australia (WA) with the Australian Consumer Law as it is in force in all other jurisdictions while also making other amendments to its Fair Trading Act 2010 (WA) to improve its administration and correct various anomalies and drafting errors.

In speaking to the Fair Trading Amendment Bill 2013 the Minister stated that the Bill has two objectives.

First -  Bringing the WA Consumer Law into line with all other Australian jurisdictions. 

Unlike other Australian jurisdictions WA’s Fair Trading Act does not automatically apply the effect of amendments made to the Australian Consumer Law (Cth) in WA. Amendments must be adopted by specific amending legislation that has been passed by the WA Parliament.

As a result, the Australian Consumer Law in WA currently differs from the law as it applies in all other jurisdictions. The WA Law does not reflect amendments that have been passed and have come into operation since the Australian Consumer Law was first enacted even though those amendments were agreed to by all jurisdictions, including WA as part of the Intergovernmental Agreement relating to the Australian Consumer Law.

Given this position the government intends, according to the Minister, to amend the Fair Trading Act 2010 (WA) to apply the Australian Consumer Law (Cth) as in force on 1 January 2013 as a law of WA and WA will  adopt all of amendments  to the Australian Consumer Law (Cth) that have come into effect up to and including that date.

Additionally another important outcome, according to the Minister, is that the Bill will ensure that the amendments to the Australian Consumer Law (Cth) will apply to WA businesses that are not corporations. At the moment this is not the case as the Commonwealth's constitutional power in this respect is limited to Corporations and does not allow the Australian Consumer Law to apply to differently structured businesses without legislation of the type proposed in the Bill.

Differently structured business are covered by State laws that the Minister says differ little from the federal ones but the Minister contends that even so, "businesses should not have to operate under different laws depending on their business structure" and "consumers [should] enjoy equal protection from uniform laws regardless of the business structure of the entity with which they are dealing".

Second - Amendments improving the administration of the WA Act and correcting anomalies and drafting errors.

Amendments aimed at improving the WA Act include the introduction of interpretative principles into the "unconscionable conduct" provisions, in order to assist the courts, consumers and businesses in understanding the scope of the prohibition on unconscionable conduct. Other minor amendments relating to the definition of “document” and references to the “Standards Association of Australia” in the Australian Consumer Law (Cth) are proposed to be adopted by WA.

Minor amendments to the Fair Trading Act 2010 (WA) proposed by the Bill include:

• Empowering the Commissioner for Consumer Protection to assume conduct of any legal action already commenced by a consumer or business, or to defend any legal action against a consumer or business that is already under way.

• Making it an indictable offence not to comply with an order of the Supreme Court or District Court that prohibits the payment or transfer of money or other property;

• Expanding the number of licensing Acts in the Consumer Protection portfolio under which the Commissioner can exercise specific investigation and enforcement powers.

Current Status

After its introduction on 15 May 2013 the Bill was referred to Standing Committee on Uniform Legislation and Statutes Review.

Source: Western Australian Legislative Council Explanatory Memorandum and TimeBase LawOne.

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