Worth, Brenton --- "Consumer Law and Policy in Australia and New Zealand" [2014] UTasLawRw 20; (2014) 33(2) University of Tasmania Law Review 357

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Consumer Law and Policy in Australia and New Zealand

Justin Malbon and Luke Nottage (eds)

Australia: The Federation Press, 2013, pp 480, ISBN 9781862879089, $125

Notwithstanding its relative infancy, the Australian Consumer Law (‘ACL’) has generated widespread debate amongst practitioners and academics alike since being introduced as a ‘holistic response’ to the shortfalls of the Trade Practices Act 1974. As such, Malbon and Nottage’s Consumer Law and Policy in Australia and New Zealand is a highly welcomed addition to the controversial area of consumer protection law. Compiling the work of 14 leading experts in the field, the text fills an existing gap in the literature by combining an in-depth analysis of the ACL reform package, with a pointed focus on the policy reasons leading to its introduction. This ‘policy focus’ is a major drawcard of the text because it emphasises the underlying rationales supporting the need for Australia’s consumer protection reforms and, in turn, aids the reader’s understanding of the ACL provisions as they are applied in a practical context. As the Foreword indicates, this is aimed at transforming the text from a purely academic guidebook, into a handy resource for all involved with the legal profession. Further, in canvassing a wide range of current consumer law issues, the text’s ‘punchy’ tone and logical structure allows it to maintain fluidity throughout, despite the number of co-contributors.

The text concentrates on both the Australian and New Zealand jurisdictions, in a move that has undoubtedly contributed to the length of the publication. However, such a focus is justified from the outset on the basis of efforts between the two countries to create a ‘single economic market’, and the influence this approach has had on Australian domestic law. This decision is highly beneficial to the reader, as it is clear that any reform to Australia’s consumer protection law must be viewed in light of these developments. Despite a major focus on these two nations, further insight as to the efficacy of the ACL provisions is also provided from other jurisdictions such as the European Union, the United States of America and Japan. For example, in Chapter Three, Nottage, Riefa and Tokely put forward a comparative analysis of the differences in the consumer protection regimes within these nations, and highlight the influence they have had on the drafting of Australia’s legislation. As such, it is submitted that the text may be seen as achieving one of its principal aims in locating the ACL reforms in a wider theoretical and international context.

As noted, the text’s contentious ‘policy focus’, helps set it apart from other literature in the area. Such a move, although strangely unprecedented, is particularly relevant and useful in the area of consumer protection law, given many of the substantive provisions are yet to be the subject of any major litigation. This is evident when examining Nahan and Webb’s contribution on the introduction of Unfair Contract Term legislation contained in ss 23-28 of the ACL. In arguably the ‘crowning jewel’ of the text, the authors provide an outstanding examination on justifications leading to uniform provisions protecting consumers in standard form contracts, including the insights that were drawn from behavioural economics. Examples of this include an analysis of the move away from the assumption of ‘rational choice’, which is pivotal knowledge in context of the shift from ‘procedural’ to ‘substantive’ safeguards under the ACL. Further, the text details the influence of similar protections in the United Kingdom and Victoria had on the shaping of the legislation, and the lessons that were learnt from these jurisdictions. This helps assist the reader in understanding what role factors such as ‘transparency of terms’ are likely to play when a court does finally assess the unfair contract term provisions, and why elements of ‘good faith’ were not included in the test of unfairness. As the editors posit, this makes the text a workable resource for anyone seeking a greater understanding of the ACL.

Despite aiming to cater to all with a vested interest in consumer protection law, Malbon and Nottage do not lay any claims to have been comprehensive in their attempts to do so. Unfortunately however, there is one major drawback of the text as the editors neglect to include a chapter dealing with misleading and deceptive conduct. It could be argued that ‘misleading and deceptive conduct’ was one of the most heavily litigated areas of the Competition and Consumer Act 2010. This is analogous to writing a textbook on the rules of evidence but leaving out a chapter on the hearsay rule. The authors seek to justify this decision in the Introduction on the grounds that the laws relating to misleading and deceptive conduct have traditionally attracted little policy debate in Australia, and have proved quite fact-specific in their application. Nevertheless, the absence of misleading and deceptive conduct in the text renders it somewhat limited as a resource for students and lecturers seeking to teach or study the area of consumer protection law as a substantive course. Instead, the text could have better achieved its aims by providing an analysis of misleading and deceptive conduct with appropriate caveats. Moreover, such a feat seems to have been achieved in other work in the area, such as Alex Bruce’s Consumer Protection Law in Australia,^[1] in which the author introduces a Chapter on misleading and deceptive conduct by noting that readers must beware of the ‘bewilderingly wider range of circumstances in which misleading and deceptive conduct has been alleged’ and the ‘ease with which [the section] can be pleaded’.

All in all, the text achieves the majority of its goals commendably, and will likely be a first point of call for those seeking to tackle the ever-growing area of consumer protection law. However, its lack of substance in key areas undoubtedly hampers the marketability of the text as a resource for undergraduate students. Although some of this is overcome by the readable nature of the text, it is submitted that Malbon and Nottage’s compilation will remain better suited to researchers, practitioners, and those with an interest in an advanced and wide-ranging analysis of current consumer law issues.

Brenton Worth^[∗]

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^[1] Alex Bruce, Consumer Protection Law in Australia (Lexis Nexis Butterworths, 2^nd ed, 2014).

^[∗] Final year BBus-LLB (Hons I) student at the University of Tasmania and Board Member of the University of Tasmania Law Review for 2014.