Productivity Commission Report: Consumer Law Enforcement and Administration

On 12 April 2017 the Productivity Commission released its research report entitled “Consumer Law Enforcement and Administration”. The report was the outcome of the review the Productivity Commission had conducted on the multiple regulator model for administering and enforcing the Australian Consumer Law (ACL).


Overall the Productivity Commission is of the view that the multiple regulator model for the ACL appears to be operating reasonably effectively, given the challenges in having 10 regulators administer and enforce one law. The Productivity Commission has however made the following recommendations and findings, which it has recommended be considered by the Legislative and Governance Forum on Consumer Affairs in conjunction with the recommendations from the parallel study of the ACL being conducted by Consumer Affairs Australia and New Zealand:

(a)    ACL regulators should publish a comprehensive and comparable set of performance metrics and information to enhance their public accountability and enable improved regulator performance;

(b)   Consideration should be given to making consumer complaints public. However, the Productivity Commission also stated that this should be done in a careful and comprehensive way to ensure its usefulness to consumer and minimize unwarranted effects of businesses. Any public register of consumer complaints and incidents should incorporate:

– Appropriate vetting of complaints before publication;

– Detailed information about the complaint or incident;

– Information on the resolution or outcome of the complaint; and

– Where feasible, a mechanism to place complaints and incidents in context.

The Productivity Commission has recommended that the development of the register should involve consultation with consumer and business, and there should be subsequent reviews of its effects and effectiveness.

CCLSWA is of the view that such a register would be a fantatic resource and provide us with an insight into the outcomes which the WA Department of Commerce are able to achieve through their conciliation service. It would also allow us to assess how many complaints a business has already had made against it and access to general statistics about the type of complaints being made to the WA Department of Commerce. However, it is unclear if the creation of such a resource would require additional funding, which may be difficult in the current economic circumstances or if this information is already readily available to the various ACL regulators and therefore could be easily made publicly available.

(c)    Improve consistency in infringement notice powers and other remedies, such as substantiation notices, that states and territories have introduced to augment the ACL toolkit. The report indicates that currently different jurisdictions have taken different approaches in relation to the ability of their ACL regulators to issue infringement notices and utilise other remedies. The Productivity Commission would like to see more consistency being introduced across the various jurisdictions in relation to these powers. However, at a minimum the Productivity Commission would like the various state and territories governments to ensure that the various ACL regulators have a consistent right to issue infringement notices.

(d)   Increase maximum financial penalties for braches of the ACL. The Productivity Commission appeared to support the recommendation from the ACL review which suggested that the maximum penalties should be aligned with those imposed for breaches of competition provisions in the Competition and Consumer Act 2010.

(e)   The Commonwealth government should establish an independent review of consumer alternative dispute mechanisms. Among other things the review should:

– assess the nature and structure of current arrangements, areas of unmet need and the appropriate institutions to deliver services;

– take account of differences in jurisdictions’ legal systems for the design of alternative dispute resolution mechanisms;

– have regard to recommendation 9.2 from the Productivity Commission’s 2008 Review of Australia’s Consumer Policy Framework regarding the need for effectively and properly resourced alternative dispute resolution mechanisms to deal consistently with consumer complaints not covered by industry based ombudsmen;

– where state and territory ACL regulators are to continue to provide alternative dispute resolution services, consider options for expanding the ACL regulator’s powers, including the authority to compel businesses to cooperate with the dispute resolution process.

CCLSWA would support such a review being conducted, as we are concerned that the inconsistency of alternative dispute resolution mechanisms across the states and territories causes confusion among consumers and prevents the ACL from truly becoming a national law. In addition, the cost of seeking redress varies significantly across the various states and territories and creates a further impediment for creating a national law with equal rights under ACL for all Australians.

(f)     The Productivity Commission was still in support of a previous recommendation it had made in 2008 (Review of Australia’s Consumer Policy Framework) that the Commonwealth government should provide additional funding to support consumer research and advocacy. This should remove the issue whereby consumer groups often find they are unable to participate and provide input into the policy making process due to lack of resources.

(g)    The Productivity Commission was of the view that there are grounds for enabling designated consumer bodies to lodge “super complaints” on behalf of classes of consumer, with such complaints to be fast tracked by the relevant regulator.