Thursday, April 19, 2012

The havoc that is the Australian Consumer Law

When Perram J described the amendment of the name of the Trade Practices Act 1974 to the Competition and Consumer Act 2010 as misleading because it suggested the Act was originally passed in 2010 I thought (respectfully, of course) that his Honour was off his trolley.

However, one feature of the amendments to the TPA has caused considerable havoc, and that is the removal of the consumer protection provisions from the body of the Act and their re-enactment as the Australian Consumer Law in Schedule 2 to the Act.

At least one publisher in the header to their text simply records this part of the Act as "Sch 2", with no indication of which section in schedule 2 is being discussed. This makes it embarrassingly cumbersome to try and find relevant provisions which are interspersed between numerous pages of commentary. Good luck trying to find Australian Consumer Law section 18 (for those who can't find it, that's the old section 52).

That same publisher also, by the way, has simply omitted any reference to the transitional provisions that are operative in relation to the ACL: quite unforgivable. the only explanation is the irritating practice of Commonwealth parliamentary counsel enacting transitional provisions in the Amending Act rather than inserting them into the Principal Act (as is done in NSW) where they will have ongoing utility.

As legal research is increasingly done on-line, the amendments have also caused considerable difficulties for on-line publishing. If one now uses the AUSTLII "note up" function for section 82 (the provision dealing with damages) one would be led to believe that there were only 3 cases in the case law of Australia that had ever referred to this section. The true number is, of course, in the tens of thousands.

Even worse, one cannot "note up" section 18 of the Australian Consumer Law at all, because it is simply one of more than 200 items in Schedule 2, all of which will therefore be noted up together (personally, that's not such a bad thing as it won't be so easy to include hundreds of marginally relevant cases in a footnote in submissions, but the capacity should still be there).

I could go on, but the basic point is that the Commonwealth parliamentary counsel dropped the ball, and the publishers have done little to regather.


No comments:

Post a Comment